Page:The Green Bag (1889–1914), Volume 18.pdf/339

 312

THE GREEN BAG

chise in question cannot 'be regarded as including anything not coming within its express terms. CONSTITUTIONAL LAW. (Police power — Liberty of Contract.) Wis. — The scope, extent, and application of the police power, as its latitude has been extended by modern decisions, is involved in the decision of the case of State v. Gary, 105 Northwestern Reporter, 792. The Supreme Court of Wisconsin there declares that where the legis lature has power to regulate a business, it is vested with the power to legislate against the injurious consequences that inhere in the conduct of such business, and possesses discretion to determine what means are necessary to the accomplishment of that end, and its action is valid, unless it has ex ceeded its authority by imposing such arbitrary restrictions upon the individual and his occupa tion as are palpably foreign to the legitimate pur pose sought to be accomplished by the legislation. Pursuant to this principle it is held that Wisconsin Laws, 1905, p. 419, c. 278, prohibiting the loaning of money on chattel mortgage, bill of sale, pledge, etc., at a greater rate of interest than 10 per cent per annum, or the acceptance of more than 14 per cent per annum, in full for all examinations, views, fees, appraisals, commissions, renewals, and charges of any kind in procuring and making the loan, is a reasonable and proper exercise of the police power and not an unconstitutional inter ference with liberty of contract. The further provision of the statute making it a misdemeanor punishable by fine of not less than $25 nor more than $300, or by not more than six months' im prisonment or both for violations of the provisions of the statute, is held not in conflict with the constitutional guarantees of liberty. CONTRACTS. (Legality — Lobbying.) Cal. — In Le Tourncux v. Gilliss, 82 Pac. Rep. 627, it is declared that " lobbying," which has a welldefined meaning and signifies the addressing or soliciting of members of a legislative body for the purpose of influencing their votes, is contrary to public policy, irrespective of the question whether it is carried on in such manner as to constitute a crime under the statute, and hence, that a note given for money advanced for the expenses of a person to enable him to engage in the business of lobbying cannot be enforced. CORPORATIONS. (Contracts — Ultra Vires.) U. S. C. C. Ind. —• A company organized under a statute providing for the organization of manu facturing and mining companies, for the purpose of furnishing natural gas to consumers, is held in

Quinby v. Consumers' Gas Trust Company, 140 Federal Reporter, 362, to be engaged in perform ing a public service and to be a quasi public cor poration, so that it can exercise no powers not granted by its charter or by some other act of the Legislature. In view of this, an agreement by such a company in a franchise contract with a city, giving the city an option to purchase all its property, is beyond its powers and void, and since its performance by the company would at once incapacitate it from performing the statutory duties for which it was chartered, and since it is in violation of the declared public policy of the state, the company is not estopped by its accept ance and use of the franchise from asserting the invalidity of the agreement, nor is the contract rendered valid and enforceable by the fact that when it was sought to be enforced natural gas had failed in the locality where the company had its wells. EVIDENCE. (Deed — Parol Explanation.) So. Dak. — A case of considerable local importance because involving the construction of a statute not previously authoritatively passed upon is that of Bernardy v. Colonial & United States Mortgage Co., Limited, 105 N. W. Rep. 737. It is there held that the provision of the South Dakota Code, that every transfer of property as security for the performance of an act is to be deemed a mortgage, does not authorize parol evi dence as to the intent of the parties in the execu tion of a deed absolute in form and without limitations or qualifications as to the interest intended to be conveyed. Independently of the statute, it is held that such a deed cannot be varied by parol evidence as to the intention of the parties. The first impression created by reading this case is that it declares, contrary to the almost universal rule in equity, that parol evidence is not admissible to show that a deed absolute in form was given as security and is, therefore, a mortgage. When, however, the opinion is read in connection with the opinion on a former appeal (17 S. Dak. 650) where the facts are stated, it appears that the effort made was to restrict the operation of the deed to the interest then possessed by the grantor and that it was not claimed that the deed was given as security. What is said with reference to a mortgage is obiter, for the purpose of meeting an argument that the cases are analo gous. The court very properly says that the principle under which parol evidence is admitted to show that the deed absolute in form was given as security is not applicable to the case at bar, but