Page:The Green Bag (1889–1914), Volume 23.pdf/462

 428

The Green Bag

“It seems safe to believe that originally any one who held himself out to serve all who might apply was conceived of as assuming a public or common callin, and by force of this assumpsit

was held to o ligate himself to serve all who should apply and to serve with care. In a state of society so primitive as that of the time of which we are speaking, the kinds of thin s which a person would be likely to hold himsef out to do for all applicants would be few. . . . How ever, as a result of the rapidly changing economic conditions it soon became more and more usual for rsons to hold themselves out to serve the pub ic generally in all lines of commercial activity, so that such a holding-out lost any distinctive signiﬁcance which it earlier had; and as a result of the rapid development of legal science and the clariﬁcation of legal ideas, breach of legally-imposed rather than self-imposed duty came to be conceived of as the basis of tort lia bility, and the asrumprit, so important in earlier actions on the case, and implied in the case of one engaged in a common calling from the holding out, was no longer recognized as a necessary element. What effect had this upon the lia bilities of those engaged in ‘common callings'? . . . A person no longer became liable to an action on

the case simply because he held himself out to serve the public generally and then refused to this serveobligation some member nowofattached the public only whotoapplied— common carriers by land and water (including ferrymen) and innkeepers. . . . Perhaps several reasons may be hazarded for the survival of this peculiar liability of the carrier and innkeeper, even when the reasons in which it originated would no longer be recognized as sufficient basis for a tort action. . . . Thus survived the common law duty of common carriers and innkeepers to serve, according to their holding-out, those who might apply, though the ori inal reason for the imposi tion of the duty, no onger sufficient in itself to justify its imposition, was forgotten, and new reasons had to be found for its justification." Local Govu'nment. "Political Innovations." By Hon. Robert W. Bonynge. Forum, v. 45, p. 645 (June). “The adoption of the ‘short ballot' offers the simplest and most complete remedy for the defects in our present system of representative government. It does not involve any radical change in the form of the government, but, on the contrary, would be a return to a truly repre sentative government. Its reinstatement would mean the application to political affairs of the methods that are so sucessfully em loyed by all the great industrial cor

rations o the country

for the transaction of t eir business." Marriage and Divorce. See Domestic Re lations. Monopolies. “The Unreasonable Obiter Dicla of Chief Justice White in the Standard 01'! Case." By Albert H. Walker. 72 Central Law Journal 413 (June 9). The writer takes the preposterous position that as “the decision of the Standard Oil case did not depend in the slightest degree upon the

presence or absence of any such limitation upon the statutory word ‘restraint’ or the statutory word ‘monopolize,’ as Chief Justice White, in his ﬁve-thousand word argument, sought to place upon those words,. . . all those ggrtions of his written opinion which appear to

intended to operate to thus limit those statu tory words are obiler dicta."

Petrology. See Criminology, Probation and Parole, Prison Labor. Prison Labor. “Something for Nothing." By Julian Leavitt.

American Magasine, v. 72,

p. 351 (July). “It is safe to say that 1,500 convicts have dis placed at least as many free workingmen perma nently and reduced the wages of ten thousand others to starvation point." Probation and Parole. “The Constitution ality of the Federal Parole Law." By Agnes K. McNamara. 45 (May—June).

American

Law

Review

401

“The United States Supreme Court has u held speciﬁcally two state parole laws — that o Illi nois in Dreyer v. Illinois (187 U. S. 71), and that

of Michigan in Ughbanks v. Armstrong (208 U. S. 481) — but in both cases the point decided is that a state parole law does not violate the fourteenth amendment of the federal Constitu tion, and in both cases the Supreme Court de

clines to review the state court's decision that the parole law in question did not violate the state constitution by infringing on the judicial or executive powers. “Reasoning both from the analogy of state parole laws and the general trend of federal decisions on the president's pardoning power the probabilities are that the federal parole law supported, as it is, by public policy, will be held constitutional." See Penology. nical Procedure. Grounds “Delays in Civil and and Reversals Criminal on Trials." Tech~ By E. J. McDermott. 45 American Law Re view 356 (May-June). “(1) It should be possible to prosecute a criminal (a) by indictment, and in misdemeanors at least (6) by information on the part of the

public prosecutor with the concurrence of some magistrate or judge. “(2) An indictment should be short and simple.

It should briefly state the nature of the crime and only such facts as are necessary (a) to enable

the accused to know what the offense is and where and when it was committed and (b) to enable the court to enter such a judgment as will prevent a second prosecution for the same offense. All of that could be stated in any case in ﬁve or ten lines. “(3) The

rosecutor should have the right to

amend the indictment at any time, provided the whole character of the crime is not changed and the accused is given the right to a continu ance, when necessary, to get new proof for his defense.

“(4) The rules of procedure should be held