The New Pennsylvania Constitution-A Summary commission, except according to an appropriation previously made; and of its Leading Features.

[From the Financier.]

every city shall create a sinking fund for the payment of its debt. All corporate charters now existing and not already used or in organization are made void; all existing corporations can have their charters altered, or any law passed for their benefit, only on condition of becoming subject to the new constitution. No corporation shall do any business not expressly authorized in its charter, or take or hold any real estate except what is necessary for its legitimate business. No corporation shall issue stocks or bonds except for money, labor done, or money for property actually received; and all fictitious increase of stock or indebtedness shall be void; the stock and indebtedness of corporations shall not be increased except in pursuance of general law, nor without the consent of the persons holding the larger amount in value of the stock first obtained at a meeting to be held after sixty days' notice given in pursuance of law."

The new constitution of Pennsylvania, recently ratified by popular vote of two to one, contains some noteworthy provisions of reform. The terms of state officers are extended by it. The governor is to serve four years; senators, four years; representatives, two years; secretary of state, four years; auditor general, three years; treasurer, two years; supreme court judges, (hereafter to be seven in number instead of five,) twenty-one years instead of fifteen, and not to be again eligible. The governor, treasurer, and auditor are prohibited from serving two consecutive terms. The legislature is prohibited from passing "any local or special law" for regulating the affairs of counties, cities, and the like; authorizing laying-out, opening, or maintaining roads, highways, or streets; altering or locating county-seats; incorporating cities, towns, or villages, or changing their charters; creating or extending corporations; and from doing a number of other things specified. No obligation or liability of any corporation to the state shall be in any way changed or lightened, or affected by the legisla-roads; that every company may intersect with any other, and receive and ture. Unless changed by a law receiving a two-thirds vote, the state election shall be on the Tuesday next after the first Monday in November. Each ballot, as cast, shall be numbered in the order of its receipt, and the number entered on the list of voters opposite the name of the voter; any voter may also write his own name on his ballot; all laws in respect to the manner of voting shall be uniform throughout the state, but no voter shall be deprived of his vote by not being registered.

Article seventeen relates to railroads. It provides that all railroads and canals shall be public highways, and all companies common carriers; that any company organized for the purpose, may construct and operate a road between any two points in the state and connect at the state line with other

transfer business without discrimination. Every company shall maintain a transfer office, with its books open to inspection by stockholders or creditors; the right to transportation is declared uniform and equal to all; transportation charges shall not exceed the charges for carrying the same class of persons or property in the same direction to a more distant station, but excursion and commutation tickets are allowed. No company owning, or leasing, or managing a railroad or canal, shall consolidate with, or lease or buy the property of, or in any way control, any competing or parallel line, nor shall any officer act as officer in such line; the question of the paral lelism or competition shall be decided by jury. No officer or employe shall be interested in furnishing material or supplies to the road, or in the business of transportation over it; no discrimination in charges or motive power shall be made; no free passes shall be granted, nor shall passes be granted at a discount except to officers and employes.

The above is a sketch of the most noteworthy provisions of the new con

Article nine, in respect to taxation and finance, provides that the power to tax corporations and their property shall not be surrendered or suspended by any contract to which the state shall be a party; that no state debt shall be created except to repel invasion, repress insurrection, defend the state in war, pay existing debt, or supply casual deficiencies of revenue, and the limit of debt for the last named purpose shall be $1,000,000; that all laws authorizing borrowing on behalf of the state shall specify the purpose for which it is wanted, and it shall be used for that purpose solely; that the state shall not assume all or any part of the debt of any municipality, "un-stitution, which took effect on Thursday of this week. All attempts to im less such debt shall have been contracted to enable the state to repel invasion, suppress domestic insurrection, defend itself in time of war, or to assist the state in the discharge of any portion of its present indebtedness;" that the state sinking fund shall be maintained, sufficient to pay interest on the state debt and at least $250,000 of principal annually; that all the money, over the necessary reserve, shall be used in paying the debt, and the sinking fund shall not be invested in or loaned upon anything but bonds of the state or of the United States; that monthly statements about the reserve shall be published; and that making any profit out of state funds, or using them in an unauthorized way, shall be punishable as a misdemeanor. The following important sections of this article we give entire :

"SEC. 6. The credit of the commonwealth shall not be pledged or loaned to any individual, company, corporation or association, nor shall the Commonwealth become a joint owner or stockholder in any company, association or corporation.

"SEC. 7. The general assembly shall not authorize any county, city, borough, township or incorporated district to become a stockholder in any company, association or corporation, or to obtain or appropriate money

for or to loan its credit to any corporation, association, institution or individual.

"SEC. 8. The debt of any county, city, borough, township, school district, or other municipality or incorporated district, except as herein provided, shall never exceed seven per centum upon assessed value of the taxable property therein, nor shall any municipality or district incur any new debt or increase its indebtedness to an amount exceeding two per centum upon such assessed valuation of property without the assent of the electors thereof, at a public election, in such manner as shall be provided by law; but any city, the debt of which now exceeds seven per centum of such assessed valuation, may be authorized by law to increase the same three per centum (in the aggregate at any one time) upon such valuation. "SEC. 10. Any county, township, school district, or other municipaltiy inincurring any indebtedness, shall at or before the time of so doing, provide for the collection of an annual tax sufficient to pay the interest and also the principal thereof within thirty years."

prove the organic law of both state and nation are of great interest, and these provisions should receive attention. One of them, which is of national importance, is that which simply makes the state election come on the same day of the year with the presidential election; this puts an end to the corrupt efforts regularly made, in each presidential year, to "carry Pennsylvania" in October. The change should be followed by other states, and if it proves the forerunner of the abolition of the electoral system altogether-about the most clumsy and mischievous provision in the federal constitution-Pennsylvania will have done almost as much to improve politics as she has done heretofore to corrupt it.

Legal News and Notes.

-A GOOD notion of the granges of Iowa is that which binds the members to settle their disputes by arbitration. It is said to reduce the lawyers almost to starvation in some quarters. Well, if arbitration is good in the big quarrels between nations, why not in the smaller ones that produce so much petty war and crime? But we suspect we shall have use for Black

stone and Cooley some time yet, and that even when the "swords are beaten into ploughshares and the spears into pruning-hooks," the lawyers will manage to live by the hooks.—[Missouri Democrat.

- Ex-Sheriff Brennan of New York city, and his deputy, Shields, were on the 9th instant, committed to Ludlow street jail for thirty days, and to pay a fine of $250 each, by Judge Daniels of the court of oyer and terminer, for contempt of court in permitting Henry W. Genet, placed in his custody under sentence of imprisonment, to escape. The penalty imposed is the extreme limit of the law applicable to such cases.

It is reported that Judge Busteed of Alabama,' and Judge Durell of Louisiana, becoming somewhat alarmed at the investigation which is to be made into their official conduct, and fearing impeachment, propose send. ing in their resignations to the president at once,

-The Supreme court of Iowa has decided that a sale of property for taxes to any one of a ring or combination of tax-buyers is void, and that the No debt shall be contracted, and no liability incurred, by any municipal title does not pass thereby, nor can the penalty be enforced,

Hon. JOHN F. DILLON, Editor.
S. D. THOMPSON, Ass'te Editor.)

ST. LOUIS, THURSDAY, JANUARY 22, 1874.

Bankrupt Act-Illegal Preferences.

SUBSCRIPTION:

$3 PER ANNUM, in Advance.

that the criminal law be so changed as to secure more exact justice; so amended as to leave results affecting the lives and liberties of men less de

pendent upon the judgment, the temperament or the caprice of those who administer the law."

We lay before our readers in this issue, the recent opinion of the Supreme Court of the United States as to the effect of the bankrupt act on the right of creditors to resort to state process to acquire liens on the property of insolvent debtors, and as to the elements essential to constitute an illegal preference, or an intent on the debtor's part to defeat the operation of the bankrupt act. Practically viewed, the opinion is one of unequalled importance. It is not, perhaps, too much to say that it revolutionizes all current notions on the subject; but it is strongly reasoned and embodies the deliberate judg-in larceny, embezzlement, false pretences, and other like of

ment of the entire bench.

Statute Revision in New York.

Undoubtedly, there must in most cases be a discretion reposed somewhere, and within certain prescribed limits, as to the quantum of punishment which a given offence shall carry with it. In some states, as at common law, this discretion resides in the judge; in others it is reposed in the jury. Evidently the policy of the law should be to limit this discretion as much as possible. It would seem worth while to consider, whether

fences affecting property, the punishment might not be gauged more nearly by the value of the property affected by the crime. This might to some extent do away with what is now a We learn from the Albany Law Journal that the revision of reproach to the administration of justice, that the the statute of law of New York, is progressing as rapidly as small thieves are punished more severely than the great is consistent with a thorough execution of the work, ones. But in cases of homicide, and assaults to kill, wound and in a satisfactory manner. Among the features of or beat, where the defendant frequently acts upon strong the new code, we note the following: The word "eject-provocation or from a principle of self-preservation, and ment" is formally recognized, and the word "replevy" where no two cases stand on the same footing with referrestored, in place of the awkward phrase, "claim the imme- ence to the quality of the act committed, a provision of law diate delivery," which had supplanted it in the Code of Pro- which leaves a large discretion in the court or jury with refcedure. The statute against purchasing lands held adversely, erence to the quantum of the punishment, would seem to be is very sensibly expunged. Another sensible provision is that conceived in a spirit of justice and mercy. At all events, the in an action for partition, if the title is in dispute, the parties question deserves of more extended investigation and patient shall not be remitted to a separate suit, but the question of thought, than the average legislator will find time to bestow title shall be tried and settled in the same action in which the upon it; and the wise course would seem to be to submit it to partition is sought. Another provision allows reversioners and a commission, to report to another session. remainder-men to maintain an action for partition; but this allowance is wisely confined to cases where an actual partition . can be had, and does not extend to permitting sales for partition. The reason assigned for this is that sales of land encumbered by an intermediate estate, generally result in a sacrifice of the property sold; and as the co-tenants in such cases are generally infant heirs, a proceeding ought not to be permitted which might, in many cases, work irreparable injury to them. One remedy by action has been provided for the recovery of dower; and to accomplish this, it is recommended that the surrogate, as such, be deprived of his present jurisdiction over this subject; and jurisdiction of proceedings for the recovery, as well as for the admeasurement of dower, is vested in the county courts.

Liability of Master to Servant-Fellow Servants

in Common Service.

The Supreme Court of the United States on the 5th inst., decided an interesting case as to the liability of masters to servants, where the main defence was that the servant injured, and the servant by whose fault he was injured, were fellowservants in a common employment. We refer to the case of Fort v. Union Pacific Railroad Co. A full report of the case below is given in 2 Dillon, C. C. R. 259. The following is a brief statement of it:

The action was brought by plaintiff to recover damages for an injury to his minor son, resulting in the loss of an arm while in the employ of the defendant.

The defendant, in its works at Omaha had a car department,

Discretionary Power of Fixing Punishment in of which Mr. Gamble was the superintendent; under him,

Criminal Cases.

The message of Governor Noyes to the Ohio Legislature contains the following suggestions of a reform in the laws with reference to the quantum of punishment in criminal cases:

and having immediate control of the shop, was a foreman, Mr. Ballou; under the foreman there were various sets, or, as a witness called them, "gangs," of men, under the immediate direction and control of some employe or "boss." Among "Another year's experience in the matter of hearing and deciding applica- those having control of a set or gang of men working in the tions for pardon, has confirmed me in the opinion that the law should be so modified, as to leave less discretion with the courts in passing sentence for shop was a Mr. Collett, whose duty it was to run and superincriminal offences. It often happens that two prisoners work side by side in tend the running of a certain machine, or certain machinery, the penitentiary, both sent there for precisely the same crime, one for one in the shop. From the time the plaintiff's son was employed, year and the other for ten. In such case, it is impossble to convince the he had been working under Collett, obeying his orders and convict incarcerated for the longer time that he has been fairly dealt with. directions; and the chief employment of the son had been And so long as he is stung with a sense of this injustice, he is not likely to reform. There is nothing approaching uniformity in the length of sentences at a moulding machine, receiving and putting away pronounced by different judges for similar offences. I earnestly recommend ings as they came from the machine. After the son had been

mould

BANK OF ST. PAUL.

Supreme Court of the United States, October Term, 1873. Bankrupt Act-Illegal preference-Judgment in State Court.-Section of the bankrupt act as respects an insolvent debtor, suffering his property to be take on legal process, with intent to give a preference to a creditor, or to defeat or delay the operation of the act, construed, and the following propositions ruled:

thus engaged for some months, on the day the accident in Bankrupt Act-Illegal Preference-Judgment in question happened, a belt or band connected with a shaft, State Court. some fourteen or sixteen feet high, was off the drum, or pulley, WILSON, ASSIGNEE OF VANDERHOOF BROS. v. CITY and needed lacing. It did not very clearly appear whether the belt thus out of order belonged to the moulding machine or some other machine near by; but it was within the scope of Collett's duty to see that it was repaired. At the time of the accident, Collett, wishing to lace the band at the end near the floor, ordered the plaintiff's son, about sixteen years of age, to ascend a ladder resting on the shaft at the upper end, which shaft was in motion at the rate of one hundred and sev-¦ enty-five or two hundred revolutions per minute, and hold or keep the band or belt away from the shaft, while he (Collett) laced or sewed it together at or near the floor; and the right arm of plaintiff's son, while thus engaged, pursuant to the orders of Collett, was caught, or in some way became entangled, in the belt, or drawn between it and the shaft, and was instantly crushed to pieces and torn from his body.

The jury made the following special finding in regard to the nature of the employment of Collett and of the plaintiff's son, and the cause of the injury, to-wit:

I That something more than passive non-resistance of an insolvent debtor to reg ular judicial proceedings, in which a judgment and levy on his property are obtained a preference of a creditor, or a purpose to defeat or delay the operation of the baik. rupt act. bankruptcy, is not a sufficient evidence of such preference, or of intent to defeat the operation of the act.

when the debt is due and he is without just defence to the action, is necessary to show

2 That the fact that the debtor under such circumstances does not file a petitiona

3. That, though the judgment creditor in such case may know the insolvent c dition of the debtor, his levy and seizure are not void under the circumstances, any violation of the bankrupt law.

4.

That a lien thus obtained by him will not be displaced by subsequent proceed ings in bankruptcy against the debtor, though within four months of the filing of the petition. The facts are stated in the opinion of the court, delivered by Mr. Justice MILLER, as follows:

This case comes before us on a certificate of division in opin ion between the circuit and district judge for the district of Mir

nesota.

The statement of facts and the questions certified are as fol lows:

termine which of the parties is entitled to the stock of goods, of the bankrupts, or the proceeds thereof. The assignee claims the goods, or the proceeds thereof, as assets of the bankrupts' estate. The bank claims the same by virtue of a judgment, execution, and levy thereunder. The facts are as follows:

"We find that the car department of the defendant was under the management of a general superintendent, who employed and dismissed the hands; that the shop, as to practical operations therein conducted, was under a foreman; that the The complainant is the assignee in bankruptcy of the firm of employes were divided, according to their work, into sets, Vanderhoof Bros., lately merchants in the city of Saint Paul. The with an under or immediate foreman; that one of these under-defendant is the City Bank of St. Paul. The bill is filed to deforemen was Mr. Collett, named in the petition, under whom plaintiff's son was to and did serve, as a workman or helper, and whose orders he was to and did obey; that Collett had charge of running and superintending certain machinery in the shop. We find that the plaintiff's son was injured in executing or carrying out an order of Collett, as described in the petition; that this order related to a matter within the scope of Collett's duty and employment. We find that the order to the plaintiff's son (in carrying out which he lost his arm) was one which was not within the scope of the son's duty and employment. We find that it was not a reasonable order, and that its execution was attended with hazard to life or limb, and that a prudent man would not have ordered the boy to

execute it."

There was no statute of the state touching the case. The judgment of the circuit court for the plaintiff was affirmed. Mr. Justice DAVIS delivered the opinion. The ground of liability was that, although an employer may not be an insurer of the lives and limbs of his servants, he is impliedly bound not to expose them to such hazard when not reasonable or necessary to do so, and the extra-hazardous service at which the plaintiff's son was put when he was injured, was not within the scope of his employment or the contract of service. Mr. Justice BRADLEY dissented on the ground that the boy and the superior servant were fellow servants in the same common employment, and hence the employer was not

On the 26th of February, 1870, judgment by default was rendered by one of the district courts of the State of Minnesota in favor of the bank against Vanderhoof Bros. for the sum of $2,130. On the same day execution was issued, and the sheriff immediately made a levy upon the whole stock of goods of the debtors, which was sold by him for $2,385, which is now in the hands of the bankrupt court to await the determination of this suit. The suit by the bank was brought on promissory notes, commercial paper made by the debtors, Vanderhoof Bros., to the City Bank of St. Paul, one of which notes was more than fourteen days past due when suit was brought thereon by the bank.

After the levy of the said execution, and before the sale by the sheriff, Vanderhoof Bros. were adjudicated bankrupts on the pe tition of creditors filed against them after judgment had been ob tained, and levy made under the execution. The Vanderhoots had no defence to the notes upon which the bank had sued them, and put in no defence. They had no property except their said stock in trade, which, at cost prices, was about equal to the amount of their liabilities.

The debtors, Vanderhoof Bros., were insolvent when said suit was brought against them by the bank, and the bank had ther reasonable cause to believe it, and knew that they had com mitted an act of bankruptcy, and that they had no property but their said stock in trade. The Vanderhoofs gave no notice to any of their creditors of the suit commenced against them by the bank, and, having no defence, did not defend it nor go into vol untary bankruptcy, nor otherwise make any effort to prevent judgment being obtained or the levy of the execution. On the trial the following questions arose, in relation to which the judges were opposed in opinion:

the

I. Whether or not an intent on the part of said debtors Vanderhoof Bros., to suffer their property to be taken on lega

ferred. Through the whole of the legal proceedings against them they remained perfectly passive. They owed a debt which they were unable to pay when it became due. The creditor sued them and recovered judgment, and levied execution on their property. They afforded him no facilities to do this, and they interposed no hindrance. It is not pretended that any positive evidence exists of a wish or design on their part to give this creditor a preference, or oppose or delay the operation of the bankrupt act.

very liberal in the classes of insolvents which it does include, and needs no extension in this direction by implication. But it still leaves, in a great majority of cases, parties who are really insolvent, to the chances that their energy, care, and prudence in business may enable them finally to recover without disastrous failure or positive bankruptcy. All experience shows both the wisdom and justice of this policy.

Many find themselves with ample means, good credit, large business, technically insolvent; that is, unable to meet their current obligations as fast as they mature. But by forbearance of creditors, by meeting only such debts as are pressed, and even by the submission of some of their property to be seized on execution, they are finally able to pay all, and to save their commer

There is nothing morally wrong in their course in this matter. They were sued for a just debt. They had no defence to it, and they made none. To have made an effort by dilatory or false pleas to delay a judgment in the state court would have been a moral wrong, and a fraud upon the due administration of the law. There was no obligation on them to do this, either in law or incial character and much of their property. If creditors are not ethics. Any other creditor whose debt was due could have sued as well as this one, and any of them could have instituted compulsory bankruptcy proceedings. The debtor neither hindered nor facilitated any one of them. How is it possible from this to infer, logically, an actual purpose to prefer one creditor to another, or to hinder or delay the operation of the bankrupt act ?

satisfied with this, and the parties have committed an act of bankruptcy, any creditor can institute proceedings in a bankruptcy court. But until this is done, their honest struggle to meet their debts and to avoid the breaking up of all their business, is not, of itself, to be construed into an act of bankruptcy, or a fraud upon the act.

It is also argued, that inasmuch as to lay by and permit one creditor to obtain judgment and levy on property, necessarily gives that creditor a preference, the debtor must be supposed to intend that which he knows will follow.

It is said, however, that such an intent is a legal inference from such inaction by the debtor, necessary to the successful operation of the bankrupt law; that the grand feature of that law is to secure equality of distribution among creditors in all cases of The general legal proposition is true, that where a person does insolvency; and that, to secure this, it is the legal duty of the a positive act, the consequences of which he knows beforehand, insolvent, when sued by one creditor in an ordinary proceeding he must be held to intend those consequences. But it cannot likely to end in judgment and seizure of property, to file himself be inferred that a man intends, in the sense of desiring, promoting, a petition of voluntary bankruptcy, and that this duty is one to be or procuring it, a result of other persons' acts, when he contribinferred from the spirit of the law, and is essential to its success-utes nothing to their success or completion, and is under no legal ful operation.

or moral obligation to hinder or prevent them.

Argument confirmatory of these views may be seen in the fact that all the other acts or modes of preference of creditors found in both the sections we have mentioned, in direct context with the one under consideration, are of a positive and affirmative character, and are evidences of an active desire or wish to prefer one creditor to others. Why, then, should a passive indifference and inaction, where no action is required by positive law or good morals, be construed into such a preference as the law forbids? The construction thus contended for is, in our opinion, not jus

The argument is not without force, and has received the assent of a large number of the district judges, to whom the administration of the bankrupt law is more immediately confided. We are, nevertheless, not satisfied of its soundness. We have already said that there is no moral obligation on the part of the insolvent to do this, unless the statute requires it, and then only, because it is duty imposed by the law. It is equally clear that there is no such duty imposed by that act, in express terms. It is, therefore, an argument solely of implication. This implication is said to arise from the supposed purpose of the statute totified by the words of either of the sections referred to, and can secure equality of distribution in all cases of insolvency, and to only be sustained by imputing to the general scope of the bankmake the argument complete, it is further necessary to hold that rupt act, a harsh and illiberal purpose, at variance with its true this can only be done in bankruptcy proceedings under that spirit and with the policy which prompted its enactment. statute. Does the statute justify so broad a proposition? Does Undoubtedly, very slight evidence of an affirmative character it in effect forbid all proceedings to collect debts in cases of insol- of the existence of a desire to prefer one creditor, or of acts done vency, in other courts, and in all other modes than by bank-with a view to secure such preference, might be sufficient to inruptcy [proceedings?] We do not think that its purpose of securing validate the whole transaction. Such evidence might be sufficient equality of distribution is designed to be carried so far. to leave the matter to a jury, or to support a decree, because the known existence of a motive to prefer or to defraud the bankrupt

As before remarked, the voluntary clause is wholly voluntary. No intimation is given that the bankrupt must file a petition un-act, would color acts or decisions otherwise of no significance. der any circumstances. While his right to do so is without any other limit than his own sworn averment that he is unable to pay all his debts, there is not a word from which we can infer any legal obligation on him to do so. Such an obligation would take from the right the character of a privilege, and confer on it that of a burdensome, and often, ruinous duty.

These cases must rest on their own circumstances. But the case before us is destitute of any evidence of the existence of such a motive, unless it is to be imputed as a conclusion of law from facts which we do not think raise such an implication.

These latter considerations serve to distinguish the present case from that of Buchanan v. Smith, (16 Wall. 277,) decided at last It is, in its essence, involuntary bankruptcy. But the initiation term, and which may seem to conflict, in some of the expressions in this kind of bankruptcy is, by the statute, given to the creditor, used in that opinion, with those found in this. That was a bill in and is not imposed on the debtor. And it is only given to the chancery involving several distinct issues of fact, on which much creditor in a limited class of cases. The argument we are com- and conflicting testimony was given, and the contention was batting goes upon the hypothesis that there is another class given mainly as to what was established by the evidence. There was to the creditor by inference, namely, where the debtor ought him-satisfactory proof that the creditor, before pursuing his remedy in self to go into court as a bankrupt, and fails to do it. We do not see the soundness of this implication from anything in the statute. We do not construe the act as intended to cover all cases of insolvency, to the exclusion of other judicial proceedings. It is

the state court, had urgently sought to secure a preference by obtaining from the debtor a transfer of certain policies of insurance on which a loss was due. The case was also complicated by an assignment made by the debtor, under which the assignee took