Compulsory Education. The legislature of New York, which has just adjourned, passed a law making the education of children within certain ages compulsory. The Albany Law Journal comments upon it as follows: posed in the legislative branch of the government, when the inevitable result of such usurpation is to create or attempt a political revolution in the state, and to overwhelm it with anarchy and bloodshed. In many of the United States political parties are so evenly balanced that the result of a gubernato"The compulsory education act, just passed by the legislature rial election is not unfrequently determined by a few votes. of this state, commands parents and guardians of children be. It is manifest, then, that the peace and security of society retween eight and fifteen years of age to cause them to attend quire that contests for the possession of the executive offices of school at least fourteen weeks of each year, eight weeks of which a state government should be speedily determined by one tri shall be consecutive, or to cause them to be regularly instructed bunal, without appeal, and to the exclusion of all others. at home to the same extent, in spelling, reading, writing, Eng- When, therefore, such jurisdiction is clearly vested in the leglish grammar, geography and arithmetic, unless the physical islative department of a state government, to tolerate the exor mental condition of the child is such as to render such at-ercise of it by the judiciary on the doubtful grounds which tendance or instruction inexpedient and impracticable, and have been invoked in favor of it in this case, would be to set affixes a penalty of one dollar per week for the first, and five a precedent fraught with mischief and insecurity to the peace dollars per week not exceeding thirteen weeks in any one of every state in the Union. Happily the president, acting year, for each subsequent infraction. The act also, in the secon the advice of his chief law-officer, has seen his duty clearly ond section, forbids the employment of any child under the in this emergency, and, assuming the weight of responsibility age of fifteen years in any business during school hours of the which the constitution has laid upon him, has simply ignored public school in the school district where the child resides, the unwarranted and disgraceful exercise of judicial power by unless the child shall have made the attendance or received which Brooks for a time acquired and maintained possession the instruction above mentioned at least fourteen weeks of of the capitol and archives of the state of Arkansas, and has the fifty-two next preceding the year of such employment, issued his proclamation commanding him and his followers to and affixes a penalty of $50 for each infraction. If the padisperse, designating them as "turbulent and disorderly perrent or guardian is unable to furnish the requisite text-books, the same shall be furnished at the public expense. These are The opinion of the attorney-general presents in clear lanthe main provisions. Machinery for their enforcement is pro-guage the only view which it would seem an unprejudiced and vided. The wisdom of these provisions, especially of that of dispassionate lawyer could entertain of the question. Consection 2, can scarcely be controverted. As a matter of cerning the extraordinary usurpation of jurisdiction of the public policy there can be no room for hesitation. It is best circuit judge of Pulaski county, he uses the following severe for society to have all its members intelligent. As to the but just language: "That this circuit judge should have renmatter of private right, it may be said that in a state of soci-dered judgment for Brooks, under these circumstances, is surety no man has a right to be a dunce and a fool himself, nor to permit his children to grow up dunces and fools, unless nature is in the way. We regard the enactment as much more equitable and reasonable than the intelligence qualification required in some communities as a condition for the exercise of the elective franchise. The true way to get intelligent voters is to educate the masses from childhood. But we fear that the legislators have practically defeated the intent of the act by the permission to instruct at home. It must be observed also, that while in section two, relating to employment of children, there is a requirement that the attendance or instruction shall be upon or by a teacher qualified to instruct in the specified branches, there is no such requirement as to the home instruction in the first section. So we do not see why a child may not remain at home practically uninstructed, if he is only idle also. We think this point will bear looking into more closely by the law-makers." End of the Arkansas Gubernatorial Contest. We yield a small portion of our space in this number to publish the material part of the opinion of the federal attorney-general with reference to the armed contest for the governorship of the state of Arkansas. In the every-day practice of the lawyer questions of this kind will never occur, but viewed as a question of constitutional or public law, it is of unequalled importance. It relates to nothing less than whether the judiciary of a state will be tolerated in usurping a jurisdiction which the constitution of the state has expressly re sons. prising; and it is not too much to say that it presents a case of judicial insubordination which deserves the reprehension of every one who does not wish to see public confidence an uncertainty and the good faith of judicial proceedings wholly destroyed." From his opinion it also appears that the extraordinary judgment of four of the judges of the Supreme Court of Arkansas sustaining the circuit judge in the exercise of this jurisdiction, and thereby overruling, but without noticing, their twice-pronounced decision to the contrary, was simply a judgment in a moot case, gotten up for the purpose of eliciting the opinion for public effect-the litigating defendant as well as three of the judges having previously sent a paper to the president informing him that they recognized Brooks as governor. The attorney-general "refrains from comment," but can not avoid declaring a conviction in which every honest lawyer must concur, that "a judgment obtained under such circumstances is not recognized as authority by any respectable tribunal." The full opinion will be found in the New York Herald of May 16. Municipal Bonds-Mode of Collection. on the 4th instant. The suit was in chancery, brought in the U. S. Circuit Court for Louisiana by the holders of bonds issued by the board of levee commissioners for certain parishes (coun ties) in Louisiana. These boards are made by state of the statute quasi cor of the state. So far as the present case is concerned, porations with power to issue bonds and to provide for their payment by the levy of taxes upon the property within the district. The bill alleges a failure of the board to levy taxes to pay interest on the bonds; that the levee commissioners have pretended to resign their office for the purpose of evading this duty; that the plaintiffs have applied to the judge of the district court who was by statute authorized to levy the tax to pay the bonds if the levee commissioners failed to do so. The prayer for relief is that the levee commissioners be required to assess and collect the tax necessary to pay the bonds and interest, and if they fail, that the district judge be ordered to do the same. No suit at law had been brought or judgment recovered. A demurrer to the bill was sustained by the circuit court, and a decree thereon entered dismissing the bill, from which the plaintiffs appealed. The decree was affirmed by the supreme court, CLIFFORD and SWAYNE, JJ., dissenting. Mr. Justice MILLER delivered the judgment of the court. In discussing the various grounds put forward to sustain the equity jurisdiction, the learned justice, with the concurrence of the other members of the court, except the two justices The Homestead Law and the Obligation of Conabove named, lays down the following propositions : 2. Where the law has provided that a tax shall be levied to pay such bonds, a mandamus after judgment to compel the levy of the tax, in the nature of an execution or process to enforce the judgment, is the only remedy. 3. The fact that this remedy has been shown to be unavailing does not confer upon a court of equity the power to levy and collect taxes to pay the debt. 4. The power to levy and collect taxes is a legislative function in this country and does not belong to a court of equity, and can only be enforced by a court of law, through the officers authorized by the legislature to levy the tax, if a writ of mandamus is appropriate to that purpose. 5. Taxes are not liens unless declared so by the legislature under whose authority they are assessed. Still less can a lien be created by the mere duty to assess taxes, which has not been performed. In concluding his opinion, Mr. Justice MILLER holds the following striking language: "There does not appear to be any authority founded on the recognized principles of a court of equity on which this bill can be sustained. If sustained at all it must (be) on the very broad ground that because the plaintiff finds himself unable to collect his debt by proceedings at law, it is the duty of a court of equity to devise some mode by which it can be done. It is, however, the experience of every day and of all men that debts are created which are never paid, though the creditor has exhausted all the resources of the law. It is a misfortune which, in the imperfection of human nature, often admits of no redress. The holder of a corporation bond must, in common with other men, submit to this calamity when the law affords no relief. "The power we are here asked to exercise is the very delicate one of taxation. This power belongs in this country to the legislative sovereignty, state or national. In the case before us the national sovereignty has nothing to do with it. The power must be derived from the legislature tracts. It will be remembered that we took occasion in a previous number (ante, p. 173) briefly to discuss the question whether homestead exemption laws are constitutional so far as they operate upon existing contracts. The force of the cases appeared to be that such laws were not unconstitutional, unless the amount exempted was so large as to withdraw the greater part of the property of the debtor communities from execution. The American Law Register for April contains a wellconsidered opinion of the Supreme Court of Mississippi, written by Mr. Justice SIMRALL, in which it is ruled that the right to seize and sell by judicial process a debtor's property in satisfaction of a judgment against him, is a material part of the remedy for the enforcement of the contract on which the judgment is founded; that any law of a state which materially increases the amount of property exempt by law from execution, over the amount allowed when the contract was made, impairs the remedy materially, and is therefore prohibited by the federal constitution; and that the exemption law of Mississippi, passed in 1865, which increased the homestead exemption from 160 acres of land, not exceeding $1500 in value, to 240 acres regardless of its value, is, when applied to debts created before its passage, in violation of that clause of the federal constitution which prohibits states from passing laws impairing the obligation of contracts. After reviewing the cases which bear on the question, the learned judge says: "The lesson of the adjudications is, that the creditor may trust to the law as it is when he contracts, to know how much of the estate of the debtor he may look to for satisfaction. The existing law is in the contemplation of both parties. That furnishes approximately a safe basis of credit. If subsequent law may come in, and deny satisfaction out of half the property before liable, it is too plain for argument or illustration, that such a statute seriously impairs the right. "There is hardly room for doubt that the greatly enlarged exemptions under the act of 1865 come within the range and condemnation of these principles. This will be manifest by comparing the law of 1857 with that of 1865. The former exempted the lands and building occupied as a residence, not exceeding one hundred and sixty acres in quantity, and $1500 in value, including the improvements. The latter exempted 240 acres regardless of its value, so laid off as to include the dwelling-house and other buildings and the farm. The homestead as thus defined would, in all probability, equal half the value of the larger landed estates. Upon a critical examination it might perhaps turn out that half of the land estates of the freeholders of the state were placed entirely beyond the reach of creditors. It would embrace both in in quantity and value more than half of the cultivated lands. The effect of the law, in many instances, is to free from debt property worth ten or twenty thousand dollars, to place many debtors in comparatively affluent circumstances beyond the reach of the smallest creditor. Credits predicated on the basis of the law of 1857 may be perfectly solvent, and yet by the act of 1865 rendered insolvent. Such would be the consequences if the statute shall be construed to apply to preexisting debts." It will be seen by referring to the article written by us, that the case of Stephenson v. Osborne, 41 Miss. 119, 130, was invoked in support of what we supposed to be the prevailing rule. That case the Supreme Court of Mississippi now overrule. The opinion proceeds as follows: "We would have no doubt or hesitation in declaring this statute void as to pre-existing debts, because of the inhibition of the constitution, but for the embarrassment caused by the case of Stephenson v. Osborne, 41 Miss. 130. Mrs. Osborne, as widow, claimed the exempt personal property under the act of 1865, her husband having died since its passage. This claim was contested upon the ground, as stated in the answer to her petition, that she had by a deed of separation from her husband renounced all her rights and claims upon his estate. It does not appear from the report that a concession of her demand would have injured the creditors. It was conceded by her counsel in his brief, that the law was unconstitutional as to pre-existing creditors. Her right was predicated in argument on the fact that the estate was solvent, indebted not exceeding $500, and that her husband died after the law was in force. The question was not whether the law was void because it impaired the obligation of contracts; but rather whether the widow could take the personal property exempted by the statute in force at the death of the husband. It may not have been necessary to decide this question to pass upon the validity of the law as to prior creditors. What was said in argument by the court on the last point, entitled as it is to the highest respect and consideration, might be accepted as We are strongly inclined to the opinion that the enlarged homestead, as defined in the act of 1865, is prospective-allowable against after-incurred liabilitics. By express words, the homestead, under the act of 1857, may be claimed against future debts. The act of 1865 imports by its title to be an amendment of the existing laws. That purpose is clearly set forth in the seventh section, 'that this act shall be construed as amendatory of the exemption laws of this state, and not intended to repeal the said laws, otherwise than that the amendments shall supersede the former acts, so herein revised and amended.' The amendments mainly are an increase and description of the property, and directions as to preferring the claim, and settling doubts as to the right claimed. The prospective feature of the former law is not repealed by dicta. express words. If accomplished at all, it is by implication. Such repeals are not favored nor tolerated except for inconsistency and repugnance. Courts ought to assume that the legislature have declared how far the repeal shall extend, and will not enlarge it by implication, unless there is plain inconsistency and incompatibility; moreover, a statute should be so construed as that it may have effect. It is never to be inferred that the legislature intended to transcend the limits of its power. Statutes should be so interpreted, if the language and subject-matter will admit of it, as to conform to the fundamental law. A rendering which will harmonize with the constitution should be adopted, rather than one which shall be reprgnant to it. In Gunn v. Barry, 15 Wall., the intimation is strong that the law of Georgia, which is much like our statute of 1865, was prospective in its effects; the state court, however, had decided otherwise. "Accepting the decisions of the Supreme Court of the United States as conclusive authority upon constitutional questions, we are constrained to the conclusion that the adjudications of that court condemn the increased exemptions of 1865, so far as prior creditors are affected, as violative of the constitution. It was observed by the court in Stephenson v. Osborne, 41 Miss., that it had not met with an authority in which the constitutionality of exemption laws was raised and decided. Since that decision the case reported in 15 Wall. has been adjudged, and also a very well considered case reported in 22 Grattan, 266. "To dissent from a former judgment pronounced in this court is always attended with serious embarrassment. It should never be done until mature reflection had engendered the clearest conviction. But in cases like this we are subor dinate to the Supreme Court of the United States, and must The Personal Liability of Bank Directors for the Some time since we received, through the courtesy of Thomas H. Hines, Esq., of Bowling Green, Kentucky, a copy of the opinion of the court of appeals of that state in the cases of The United Society of Shakers v. Under, and Wm. Davenport v. Underwood, in which the above subject is considered. We have deferred publishing it from time to time, hoping to find time to write a note to it. In the meantime it has been published in several of the legal periodicals, includ ing the American Law Register for April, where it is supple- facts constituting causes of action, and this being the case, mented with a note by Judge REDFIELD. The force of the ruling is that bank directors will be held responsible to the depositors for the loss or converson by the bank of special deposits in such bank whenever they know of such conversion, or might have known of it by the exercise of such care and diligence as the law requires of such officers in representing the affairs of the bank; and that bank directors must be considered as affected with the knowledge of such facts as appear upon the bank books. The question arose on demurrer to the plaintiffs' petitions, the substantial allegations of which were that certain special deposits were made, and that the officers of the bank converted them—not to the personal emolument of the directors-but to the use and emolument of the bank, and that of such wrongful conversion and appropriation the defendants had, or could have had, by the most ordinary diligence, ample notice. It was also substantially charged in each petition that the defendants, acting as directors, "did, on various occasions, declare dividends when the condition of the bank did not justify the same, and so appropriated to themselves, they being the largest stockholders, large sums of money actually realized from the conversion of the plaintiffs' property as aforesaid." In the opinion delivered by LINDSAY, J., the court say that "the liability of the bank in these actions does not depend alone upon the averment of want of care and fidelity upon the part of the directors. It is specifically charged that the deposits were sold by its officers and the proceeds thereof converted to its use and emolument with the knowledge of the directors. The facts thus alleged imply the conversion by the bailee of the bailor's goods, for which, at the common law, an action of trover would lie. The question here presenting itself for our decision is, whether the directors, who had knowledge of these alleged wrongful sales, can be held to answer personally for the deposits so converted." Further on, the conclusion of the court is put upon clearer ground. The court say: "These appellants allege that their bonds were sold by the officers of the bank, and the proceeds paid out in the satisfaction of claims against it, and in the payment of dividends to the stockholders, and that of all this appellees had notice. Having notice, it was their duty, and they had full power in the premises, to prevent the sales. Failing in this, their subsequent action in directing the proceeds, or some portion thereof, to be paid out in the shape of dividends to the stockholders, including themselves, was a ratification of the conversion which they had theretofore wrongfully permitted. Considering their alleged wilful failure to discharge a plain duty, their ratification of the unauthorized sale and the appropriation to themselves of portions of the proceeds arising therefrom, there seems to be no valid reason, even under the rules of pleading at the common law, why they might not be held liable with the bank in an action of trover and conversion; but if there be well-founded doubt as to this conclusion, an action on the case would undoubtedly lie to compel them to make good a loss resulting from a palpable failure upon their part to discharge a plain legal duty, the performance of which the complainants had the right to demand at their hands, and the non-performance of which was the direct and immediate cause of the loss. It follows, therefore, that each of the two petitions under consideration sets out under our rules of civil procedure the general demurrer should have been overruled.” In his note to the case, Judge REDFIELD, while appreciating the high sense of justice implied in holding not only the bank, but also the directors, responsible for all the wrongful acts of the subordinate officers and servants of the bank, does not concur in the result reached. He says: "The case being tried on demurrer will rest upon the legal force of the averments in the complaint. And these, as stated in the opinion, are only that the appellees and each of them had, or could have had, by the use of the most ordinary diligence and investigation, ample notice.' As this is an averment in the pleadings of the appellants, it must receive the least favorable construction towards them. In that view it imports, not that the appellees had notice, but that they might have obtained notice by proper investigation. And by looking into the averment in one of the cases we find that this notice consisted in: had notice, as well as from the ledger, books and accounts of said bank, as from its correspondence, reconcilements and statements.' This imports, on the proper construction towards the pleader, that if the appellees had examined all these sources of information they would have discovered that the bank, by their tellers and cashier, had put these bonds to their own use. But this only implies a notice after the fact of conversion, since the avails would only appear upon the books, probably, when converted into money. But that is not important here. "But upon the most favorable construction for the appellants, these averments can imply nothing more than that the appellees were deficient in thexercise of the proper degree of care and diligence in the matter. But if any principle in the law of business corporations is entirely well settled, it is that the creditors of such corporations have no right of action against the officers for mere omission of duty-mere nonfeasance. Such defaults are only breaches of obligation towards the corporation, in which its creditors have no actionable interest. In the case of special deposits in a bank, the corporation is the depositary and not the officer receiving the same. Foster v. Essex Bank, 17 Mass. 479. There is thus no privity by way of contract or duty created between the depositary and any of the officers of the bank. It is competent for banks to receive the special deposits of their customers, but they are not obliged to do so whenever requested. Thatcher v. State Bank, 5 Sandf. Ch. 121. The bank in the case of special deposits are only gratuitous bailees, owing the lowest degree of care. Such deposits are not usually entered upon the books or certified to the depositor, but there are probably different practices in regard to this. The directors of a bank would not ordinarily know much in regard to such deposits, and could scarcely be expected to keep any lookout in regard to them. The president might know more than the ordinary directors, but even he could scarcely be considered as owing any special duty, and if he did, it would be to the bank and not the depositor. The cashier and tellers would naturally have the entire charge of such deposits, and their duty to the bank would extend only to seeing that they were not needlessly exposed to loss or damage, and no duty from such officers would be due the depositor. 66 "But, as said in Foster v. Essex Bank, supra, it would be a breach of trust for the bank or any of its officers to open a The New Jersey Pavement Case. THE MAYOR & COMMON COUNCIL OF NEWARK v. THE Court of Errors and Appeals of New Jersey, March Term, public at large, is unconstitutional. 1. Constitutional Law-Assessments for Street Paving.-A statute authoriz ing the expense of paving the road-bed of a city street, to be assessed in the proportion of two-thirds on the property abutting on the street, and the remaining third on the Assessments to be Proportioned to Benefits.-Assessments for local improvements of this character may be made against the property peculiarly benefited, but such assessments must be made to the extent only of such peculiar benefits. 2. 3. Improvements of Sidewalks.-This rule does not apply to the improvements of the sidewalk, which is to be regarded as subservient to the prem ises to which it is attached, and the expense of improving which may be charged wholly to the owner. 1849. pp. 206, 207) provides "That it shall be lawful for the The seventh section of the charter of Newark (pamphlet laws common council, on the application of three-fourths of the owners of property in any street, to order the said street or section of the street to be graded, gravelled, paved, flagged or planked, either in whole or in part, in such manner as they shall deem most advisable." &c., and that after the said grading, gravelling, paving, &c., is once effected, then the city shall take charge of and keep the Acts 1849, pp. 206, same in repair without further assessments. 207. A section of Broad street, between Market street and the Mor "We have reviewed the cases upon this question in 1 Railways, § 130, pp. 532-542. One of the latest English cases on the point is Burns v. Poulson, L. R. 8 C. P. 563. See also Ward v. London Omnibus Co., 27 L. T. N. S. 761. In the ́late case of Swift v. Winterbotham, L. R. 8 Q. B. 244, it is held that a bank is responsible for the wilfully wrong act of its servant committed in the course of his employment. But it is not important to discuss this point here. The books all show that such officers and servants are liable to the owner of such special deposits for their own wilful acts, but not for mere negligence in the discharge of their duty to the bank, although the depositor may suffer an incidental loss thereby. Bowlin v. Nye, 10 Cash. 416; Angell & Ames on Corp. §§ 241 et seq.; Story on Agency, chap. XII, §§ 308 et seq. Mr. Justice Story ris canal, was originally paved under the foregoing provision, and thus states the rule: "He [the agent] is not in general (for had been now repaved by virtue of the following section in the there are exceptions) [referring to cases of maritime con- supplement to the charter passed 18th March, 1868, page 411, viz.: tracts] liable to third persons for his own nonfeasance or omis "That when more than one half of the owners of the frontage on sions of duty in the course of his employment. His liability the line of any street, or section thereof, which is now paved, shall in these latter cases is solely to his principal. The early cases of apply to have such street or section repaved, it may be lawful for McManus v. Crickett, 1 East, 106; Ellis v. Turner, 8 T. R. the common council to order and cause the repaving thereof, and 531; Foster v. Essex Bank, supra; and Mechanics' Bank v. they shall assess upon the owners of the lots fronting upon the line of such street or section thereof, two thirds of the cost and exThe Bank of Columbia, 5 Wheat. 326, and some others, penses of such repaving, and the city treasury shall bear the rewherein it has been held that the master is not responsible for maining one-third; and the city shall be entitled to all the old maany wilful act of his servant, since that is, ipso facto, a de- terial, and said assessment to be made in all respects as were reparture from the employment, may be said to have a kind of a quired by the act to which this is a supplement and the supplehalf-dying existence still. But the introduction of railways ments thereto in cases of the original paving of streets." has compelled the courts to hold corporations responsible for BEASLEY, Ch J.-The writ in this case has brought before the all acts of their servants, however wilful, providing they come court the proceedings in the assessment of the expenses incurred fairly within the range of the employment and are profes-in repaving the road-bed of a portion of one of the public streets sedly done on behalf of such corporations. And negligence is not inferrable from the loss merely; the burden of proof of negligence rests on the plaintiff. Smith v. Bank, 99 Mass. 605. "But here the persons performing the wrongful acts complained of were in no sense the servants of the appellees. They were the servants of the bank, as much as any servants employed under the supervision of a superintendent are the servants of the common master. It would present a novelty in jurisprudence to hold the general superintendent of works personally responsible for the acts of his subordinate to those dealing with the owner, upon the ground that he did not restrain such subordinates from dereliction of duty. But that, in principle, is this case. And we can not suppose, if the bank were still solvent, any one would dream of maintaining this action." in the city of Newark. The cost of this work has been imposed their improvements in the proportion of two-thirds of such cost on in accordance with the directions of the legislative act authorizing the owners of the lots fronting on the line of the section of the street thus repaved, and the remaining third on the city treasury. It thus appears that the statute in question undertakes to fix at the mere will of the legislature the ratio of expenses to be put upon the owners of the property along the line of the improvement, and the question is whether such an act is valid. This enquiry, thus involved, has of late been so exhaustively discussed in a crowd of judicial decisions, that I do not feel inclined to do more than to so far refer to general principles as may be fore decided by this court. necessary to explain clearly what I conceive to have been hereto The doctrine that it is competent for the legislature to direct the expense of opening, paving or improving a public street, or at least some part of such expense to be put as a special burthen upon the property in the neighborhood of such improvement, can not, at this day, be drawn in question There is nothing in the constitution of this state that requires that all the property in the state, or in any particular subdivision of the state, must be embraced in the operation of every law laying a tax. That the effect of such laws |