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but not an excess, of revenue; and that if the legislative power leaves any public utility in such a plight that a confiscatory rate is inflicted, by statute, refusal of change in a franchise provision, or otherwise, the wholesome powers of a court of equity will be exerted, to hold the confiscatory regulation in abeyance, during whatever period of time its practical workings would produce confiscation. If they see fit to exercise their power, the legislature and the Public Service Commissions are to be the instrumentalities by which rates are to be kept from excess or deficiency; but if the legislative power withholds this measure of justice, the judicial power will, for the time and pro tanto, suspend the regulation whose consequences are proved to be confiscatory.
(5) As to street railroad fares limited by such a “consent," franchise or contract entered into under the sanction of the state constitutional provision, but under circumstances varying at all (if not distinguishable) from those passed on in the Quinby case, the Court of Appeals has indicated its disinclination to apply the Quinby ruling, but has not yet squarely said that it will not do so.
(6) As to fares on transportation facilities furnished under lease of city owned property rather than franchise rights in public streets (e. g., the New York City subways), the Court of Appeals has in nowise indicated its view whether the “reserved police power" could avail to increase a rate fixed as one of the terms of such a lease of city property.
On one hand, the New York City Dual Subway Contracts are not "franchises" or "local consents" granted under the constitutional provision; on the other hand, they involve a formal lease, a complicated contract with elaborate terms of mutual obligation, and the use of the subways built with city monies and owned by the city, as distinguished from public streets, which belong to all the people of the state and not to the municipality. The question of legislative power and delegation thus stands on a somewhat different basis as to the subway contracts, and I have not attempted to discuss it.
For my own part, I feel that reasons remain for doubt whether, in any case where the safety, convenience and welfare of the public are shown to be actually menaced by the inevitable consequence of rates too low the Court of Appeals will ever again refrain from holding that the full“ police power” of the state over rates has been withheld from the Public Service Commissions, so far as franchise limitations are concerned. At the present time, however, the Quinby decision must be deemed to be still the law as to situations based on similar facts.
Published in November, January, March and May by the faculty and students
of the Cornell University College of Law, Ithaca, New York Subscı iption price $1 a year
Single numbers 35 cents
EDITORS AND MANAGERS
JAMES ALLEN EWING, Ohio, Business Manager
Student Associate Editors RICHARD H. BROWN, New York
CHARLES W. LITTLE, New York MALCOLM B. CARROLL, New York
JACOB MEADOW, New Jersey EUGENE F. GILLIGAN, New York
BENJAMIN PEPPER, New York FREDERIC M. HOSKINS, New York CHARLES F. REAVIS, JR., District of Columbia DORTHEA KOCH, New York
ARTHUR L. SHERRY, Connecticut
The College of Law opened on October 10, 1918, with a total registration of 117 students. Owing to the fact that leaves of absence had been granted to Professor George G. Bogert as a major in the Judge Advocate's Department with the American Expeditionary Force in France; to Professor Charles K. Burdick for work with the Department of Civilian Relief of the National Red Cross at Washington; and to Assistant Professor Henry W. Edgerton until the expiration of his tenure at the end of the academic year; and because of the organization of a unit of the Students' Army Training Corps at Cornell University, it became necessary to effect a substantial change in the usual curriculum. The course in Torts, customarily given to freshmen, was deferred as to them until next year, and the junior and senior courses were reduced to six, twelve and ten hours respectively.
Sixty-one students enrolled as freshmen. No professional law instruction was given these students, and all of their work was taken in the College of Arts and Sciences. In the sophomore class thirtytwo students were registered. Of this number, seventeen took no professional law work for the reason that the special programs of work which they followed in the S. A. T. C. did not permit any law study. Of the remaining fifteen, ten were in the S. A. T. C., and carried but six hours of law work, as provided in the program of that organization for law students. The other five of this group were
As only six hours of instruction were given in sophomore subjects, the balance of the schedules of these students was made up
of courses in the College of Arts and Sciences. Fifteen juniors returned. Of this fifteen, ten took no law courses, due to the demands of their special S. A. T. C. programs. Three others were in the S. A. T. C. pursuing the prescribed law program of six hours of law work. Two members of the class were women, and carried twelve hours per week including a combination of junior and senior courses. The senior class numbered nine students. Three of this number took no regular law courses because of their enrollment in special branches of the S. A. T. C. Three others were enrolled in the S. A. T. C. but carried six hours of professional law work. The remmaining three, not in the S. A. T. C., were given ten hours of law instruction in senior courses.
Under the scheme devised at Cornell University for carrying on the academic work of students in the S. A. T. C., supervision of the courses in Military Law and International Law was entrusted to this College, and provision was made for instructing over five hundred students in these courses.
On December 2d, it appearing that the Government of the United States was to demobilize the S. A. T. C. at Cornell University, and that many former students then in the service were desirous of resuming their work in the College of Law, it was decided to begin a new college year in the College of Law on December 30th, 1918, continuing until July 26th, 1919, with twenty-eight weeks of instruction, and that students passing examinations in the courses given during both of the two terms in the new year be given credit for a full year of work towards graduation.
Carrying out this plan, a normal curriculum for the sophomore, junior and senior classes was resumed on December 30th. Professor Burdick returned from Washington, and Mr. Charles Sager Collier, on leave of absence from the Law Faculty of George Washington University, was appointed lecturer in law for the current year. The present registration in the College of Law is 185, apportioned as follows: freshmen, 69; sophomores, 59; juniors, 28; seniors, 27; special students, 2. Eighteen students from other colleges in the University are electing work in the College of Law.
Professor George G. Bogert has been promoted to the rank of Lieutenant Colonel, and is Judge Advocate of the 78th Division. It is announced that the 78th Division will sail for home in May, and Professor Bogert will resume work with the College of Law next fall.
The attention of every former student of the Cornell University College of Law is called to the Semi-Centennial Celebration, to be
held on June 20, 21 and 22. The opening day, the 20th, will be of particular interest. In the morning Hon. Charles E. Hughes, formerly a member of the Cornell law faculty, is to deliver the principal address. In the afternoon are to be held Alumni Conferences in each college, and several very interesting subjects are to be brought up in the Law Conference. The committee in charge of the Law Conference is composed of all the graduates of the College of Law who are or have been Justices of the New York Supreme Court, to whom is added a graduate who has won marked distinction in the field of legal education. The committee as thus constituted is as follows: Hon. Irving G. Hubbs, LL.B.'91, of the Appellate Division, Chairman; Hon. George McCann, LL.B. '88; Hon. Louis Marcus, LL.B. '89; Hon. Randall J. Le Boeuf, LL.B. '92; Hon. Harry L. Taylor, LL.B. '93; Hon. Rowland L. Davis, LL.B. '97; Professor Frederic C. Woodward, LL.B. '94, of the Faculty of the Law School of the University of Chicago. In the evening the University will be host at a dinner given to all the alumni. It is earnestly hoped that all the former Cornell law students will make a great effort to attend this celebration.
When the last number of volume III of the QUARTERLY had appeared in May of last year it was decided to discontinue publication temporarily because of war conditions, and notices to that effect were sent out to subscribers and advertisers. However, when a new law school year was started on December 30th, and when a number of the student editors had returned, and it further became evident that conditions in the college of law would be reasonably normal, it was decided that publication of the QUARTERLY should be resumed. In resuming publication the Board of Editors wishes to particularly ask the hearty support of our previous subscribers, and of all alumni of the College of Law. It is believed that all subscribers and alumni will be interested to know that it is planned to publish an unusually interesting issue at the time of the Semi-Centennial Celebration in June.
THE QUARTERLY announces the election to the editorial board of Charles F. Reavis, Jr., '19, of Washington, D. C.; Arthur L. Sherry, '19, of Hartford, Connecticut; Dorothea Koch, '20, of New Dorp, New York; and Jacob Meadow, '20, of Paterson, New Jersey.
Notes and Comment
Bills and Notes: Defenses: Usury.—The case of Sabine v. Paine, 223 N. Y. 401 (1918), involved an action upon a negotiable promissory note transferred by the payee to the plaintiff, a holder in due course. The defendant, the maker, pleaded the defense of usury, and this defense was held effective even as against a holder in due course.
The court in reaching this conclusion had difficulty in reconciling an apparent inconsistency between the Negotiable Instruments Law and the General Business Law of the State of New York. The General Business Lawl provides in section 370 that “The rate of interest upon a loan or forbearance of any money, goods or things in action, except as otherwise provided by law, shall be six dollars upon one hundred dollars, for one year, and at that rate, for a greater or less sum, or for a longer or shorter time." Section 373 provides, “All bonds, bills, notes
whereupon or whereby there shall be reserved or taken,
any greater sums, or greater value for the loan or forbearance of any money
than is above prescribed shall be void.
Whenever it shall satisfactorily appear by the admissions of the defendant, or by proof, that any bond, bill, note, assurance, pledge, conveyance, contract, security or any evidence of debt has been taken or received in violation of the foregoing provisions, the court shall declare the same to be void, and enjoin any prosecution thereon, and order the same to be surrendered and cancelled."
Section 96 of the Negotiable Instruments Law, provides that "A holder in due course holds the instrument free from any defect of title of prior parties and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon.”
Assuming the plaintiff to be a holder in due course, the question presented to the court was whether section 96 of the Negotiable Instruments Law repealed by implication section 373 of the General Business Law, or whether they may be reconciled.
Before the Negotiable Instruments Law was enacted in this state, it was well established that a usurious note was absolutely void by statute and had no legal efficacy whatever, even in the hands of a holder in due course.3 The court in the case last cited said that "a note void in its inception for usury continues void forever, whatever its subsequent history may be. It is as void in the hands of an innocent holder for value as it was in the hands of those who made the usurious contract. No vitality can be given to it by sale or exchange, because that which the statute has declared void cannot be made valid by passing through the channels of trade.” The
Consol. Laws 1909, Chap. 20.