Central Law Journal.

ST. LOUIS, MO., JUNE 22, 1917.

THE LAWYER'S DUTY AS TO CLIENT'S ATTACKING GOVERNMENTAL POWER DURING THE WAR.

To practice law is not a natural right. To hold oneself out to represent others before judicial tribunals has been recognized from time immemorial, but the theory is that this aids, and does not obstruct, the administration of justice. Accordingly it has been prescribed that not only shall there be a qualification in presumptive knowledge, but also a qualification in character, for the lawyer.

Should one who has acquired an ill-fame in his propaganda of theories subversive of organized government be permitted to appear for others in its constituted tribunals created to apply its principles in favor of or against asserted rights?

For this reason many have insisted, that the sentiment attributed, as we remember, to Lord Brougham, that in a case the lawyer should know his client above everything else, is bad in principle and inconsistent with the privilege to represent a client. The right to exercise this privilege correlates rather with honorable dealing with courts. It unites opposing counsel in a case with the judges in its disinterested solution.

While it is true that, if a judge has any bias or financial interest in the result this may disqualify him, this disqualification is greatly statutory, and statute has not prescribed it for attorneys. Undoubtedly there is power to prescribe it.

Looking, then, at our high calling as but the manifestation of grace to the end of the better securing of the beneficial ends of government, the question presents itself as to what is true professional conduct in a war where government is fighting for its existence. How far may an attorney rep

resent a client in the assertion of a right which, if the assertion is sustained, will interfere with the struggle which the donor of the privilege to a lawyer to be heard in courts for that client, is making for its very life?

The suppression of this privilege is far from a denial of the right of free speech. The lawyer stands by grace in a representative capacity. His principal, it may be conceded, may have the right to voice his views, but he may not delegate it to another whose right to appear for him is circumscribed by other considerations than are found within the four corners of his power of attorney.

These reflections come to us from the fact of our noticing through the public prints an attack by a Chicago attorney, in behalf of a client, on the draft law, whereby the President under act of Congress is proceeding to raise an army for the defense of this country. Should our courts allow an attorney to assail, in behalf of another, the very vitals of such a law?

And suppose an attorney, endowed, by grace of privilege, to appear for clients, might be received by the courts to represent a client in a controversy, which aims at crippling his government in its effort at self-preservation, what is his duty in the premises? Should he consent to essay the role of Sampson in pulling down the pillars of a temple to irretrievable ruin?

Is patriotism merely a material thing, or is it a moral obligation? We know that an attorney is under oath to deal fairly by the courts as a condition to his appearing therein. We know that he may not become a mere casuist as to his moral duties. We know there are ideals which may inconveniently interfere with his going to the full length of a client's desire. When he is employed the client knows all of this. Shall an attorney and his client sit like squat toads and the former lend his listening ear to a recital of the base designs of the latter? Cicero, in a pagan age, appears to have had a nobler view than this.

The profession of the law has represented and created its civilizing tendencies in every age, and but for its independent spirit the servile spirit of such judges as Jeffries would have left as our heritage but scant measure of the liberty we enjoy. In every time of stress in our own government, dedicated to equal rights, the lawyer has aroused the people to danger and rallied them to the defense of themselves. The names of James Otis and Patrick Henry will live long in American history for their fulminations against tyranny. But what influence would these have had, if back of their words there had not been the reputation of an honorable profession instead, as our detractors charge, of dealers in "the quillets of the law?"

Our profession and our judiciary are servants of the people for the upholding of our government in its fullest integrity. God grant that no suspicion of disloyalty may ever attach to their skirts, while our soldiers are pouring out their blood for our liberty.

NOTES OF IMPORTANT DECISIONS.

dence to authorize the commission's finding, if correctly viewed. But it took the evidence the commission passed on and ruled differently upon the weight of that evidence. And the Supreme Court affirms the finding of the reviewing court without once saying it thought its judgment on the merits was to be preferred to that of the commission.

What we are in doubt about is, whether this makes a virtual finality of the reviewing court's judgment, though there be as certain a remedy from the reviewing court as to that court. And what, we ask, is there in the way of presumption of correctness of the findings of a special tribunal? Has it less standing than has a master in chancery? He may be merely a chance official, but the trend of decision is, especially as to public service commission cases for public utilities, to regard tribunals appointed to do particular work as being composed of members with special qualifications in their line. What particular presumption attends a judge passing on facts and these, too, as shown by a dry transcript thereof? What is the use of a commission anyway, if their acts in strict accordance with their jurisdiction may be set aside, because some judge may not look at facts as they do? There is much said in the opinion in the way of tender solicitude for soldiers under the Soldiers' Preference Law. But this leads us to think their surest safety is in reliance upon commissions who are to consider their cases.

CERTIORARI-FUNCTION OF COURT IN REVIEW OF JUDGMENT OF CIVIL SERVICE COMMISSION.-With much elaboration and refined argumentation, the Iowa Supreme Court holds that statutory certiorari as a means of review of the findings of a civil service commission goes far beyond the office of such a writ at common law and embraces the right of a reviewing court to substitute its judgment on a question of fact for that of the commission. Butin v. Civil Service Commission of Iowa, 162 N. W. 565.

In the face of a statement of this kind it would seem that the statute ought to be very specific to accomplish such a result. In saying this we make no point whatever as to the way to apply for a review of findings by a commission. If the statute had remitted a complainant to his remedy by appeal, it is conceivable that the legislature might for reasons of expedition given him choice by certiorari or made the latter exclusive. Here, however, the reviewing court admitted jurisdiction and evi

SAFETY APPLIANCES-PROXIMATE AND NOT IMMEDIATE, CAUSE OF INJURY.—In Louisville & N. R. Co. v. Layton, 37 Sup. Ct. 456, it is held that the requirement of automatic car couplers is not solely for the protection of employes going between cars, but for all employes who might be injured proximately, but not immediately, from non-compliance with the safety appliance acts.

In this case the injury was to a switchman, who was thrown from the car of a standing train by the impact against it of several cars which an engine had pushed against, but not coupled with, because they were not equipped with automatic couplers. These cars were started by the engine, which itself stopped so as to have prevented the cars from striking the train had they have become coupled.

The court, by Justice Clark, said: "While it is undoubtedly true that the immediate occasion for passing the laws requiring automatic couplers was the great number of deaths and injuries caused to employes who were obliged to go between cars to couple and uncouple

them, yet these laws, as written, are by no means confined in their terms to the protection of employes only when so engaged. The language of the acts and the authorities we have cited make it entirely clear that the liability in damages to employes for failure to comply with the law springs from its being made unlawful to use cars not equipped as requirednot from the position the employe may be in, or the work which he may be doing at the moment when he is injured. This effect can be given to the acts and their wise and humane purpose can be accomplished only by holding, as we do, that carriers are liable to employes in damages whenever the failure to obey these Safety Appliance Laws as the proximate cause of injury to them, when engaged in the discharge of duty."

This statement about "wise and humane purpose" extending legislation so as to embrace injuries or accidents beyond what the law would not fairly be considered to embrace is a facile sort of statement to make, and it opens quite widely perspective as to things not dreamed of by legislators.

It remits, so to speak, the question of extension, by construction, to the individual view of judges regarding the quality of a legislative act. As to this there may be diversity of opinion.

CARRIERS OF GOODS DRAWEE OF DRAFT WITH BILL OF LADING ATTACHED PAID BY THIRD PERSON. Frank Adam Co. v. Orpheum Theatre Co., 193 S. W. 908, decided by Kansas City (Mo.) Court of Appeals, holds, that where goods were shipped, one shipment being by railroad on bill of lading accompanying draft for a named sum, and the other C. O. D., then a third person paying the draft and the C. O. D. amount acquires title to the property shipped.

The facts show that a St. Louis concern was applied to for credit by the contractor of a building in Kansas City, who was owing it a past due account, the goods being intended to go into said building and for which the St. Louis concern, if the goods were sold, would be entitled to a lien if they went into the building. It was arranged between vendor and vendee to ship the goods and make draft for old account and in part payment for the goods shipped, in two shipments, railroad and express. The contractor, not being financially able to take up the draft, arranged with the owner of the building that he should take it up, which being done, the bank turned over to him the draft marked paid and the bill of

lading. The St. Louis concern sought to enforce a mechanics' lien against the building for the balance of its account on the goods which went into the building.

The court in affirming the court below in rendering judgment for defendant owner of the building, said: "A bill of lading stands for the property and a delivery of the bill, even without indorsement, is a symbolical delivery of the property. *** In this case plaintiff put out the bill of lading with knowledge of the law that a delivery of the bill to a third party was a transfer of the title to that property whenever the money condition for such transfer was complied with. Plaintiff put it in the power of the (contractor) to transfer the property through a transfer of the bill, and it should not be allowed to harm such transferee. who knew nothing of its agreement with the (contractor)."

This reasoning does not seem to us to touch the real question involved. The owner did know that the goods were shipped as material to go into his building and, had the goods have been shipped on a straight bill of lading, he could not have purchased them from the consignee-contractor and used them in his building without taking the risk of their having been bought on credit. Is this situation changed by the fact that he paid a draft as a condition of their delivery to the consignee? It seems to us that he could not take the place of the drawee of the draft upon some arrangement with him. The bank, as collecting agent, had no right to do anything but collect, not transfer the draft. When, therefore, he paid the draft he paid it as agent of the drawee, and when he acquired the bill of lading he did this in the same capacity. There was then no delivery to him of the bill of lading at all but only a delivery to him as agent of the drawee.

By whatever agreement his principal is bound, so also is his agent bound. In other words, the source of the agent's rights lies in whom the agent represents, a principle which needs no elaboration in argument.

While it may be true that a bill of lading may be delivered so as to pass title without any indorsement, yet that would not apply to one acting as agent of the intended consignee, and that consignee, as above said, could not pass title to such an one as this owner was without his taking chances on the property having been fully paid for. This seller, with his right to a lien, was certainly as well protected as a vendor in a conditional sales contract. This reasoning also applies to the C. O. D. shipment.

HAS CREATIVE GENIUS AND ORIGINALITY IN THE LEARNED PROFESSIONS BEEN IMPAIRED BY TOO MUCH ORGANIZATION?

The above title represents a present-day controversy of growing intensity in every walk of life. Organization is robbing the nation of all initiative. It is creating a vast machine of which the individuals are only so many spokes. It is working its way into. all classes of business. Religion and pleasure are not free from it, and even the professions, most individualistic.of all enterprises, are feeling the baneful effect of it.

Thus, the profession of medicine is chafing to-day under the restraints imposed by big foundations for the discovery of remedies for disease. These foundations, according to the London Lancet, usually discover nothing; on the contrary, discourage individual initiative. The Science, an American publication, takes up the fight against "organizing" science, and its observations are worthy of careful reflection. It says:

"One wonders what institution or organization Newton or Darwin belonged to, without which 'they would have exerted only a very small influence.' *** An army wins a battle, but the creative thinking is commonly done by some one Napoleon. The writer knows of a case recently where an organization worked on a problem for many months without achieving anything except more or less useful (mostly trivial) data. But one day a member not working on that problem, devoted some high-tension thinking to the subject, aided by a happy combination of other knowledge, and was able to see the solution of the whole question on radically different lines.

"Other scientists would do well to take a leaf from the surgeon's book. Certainly in part, the high position of American surgery is owing to the fact that the surgeon's work is his own. I presume that the Mayo brothers have an 'executive,' precisely as any hospital has a manager, who attends to the buying of supplies, etc.; but nobody ever heard of him. It is curious how American

surgeons have been able to do such good work with no 'executive surgeons' to occupy the center of the stage, and make them cooperate. Incredible as it may seem, in this field the mahogany roll-top desk is not the greatest thing in the world."

Another American publication, Current Opinion, takes up the fight against organization, and in speaking of the Lancet's complaint, says:

"The source of the difficulty hinted at here is a mania for organization, the mania in question being most acute in this country at this time. It may be an aspect of the commercialism which tends so often to defeat its own purpose. The fundamental error is a belief that an individual can exert only a small influence except as a member of an organization. The truth is that organization often discourages genius in the scientific field by robbing it of incentive. The inspirational quality is gone when organization reaches its logical conclusion. There is very little disposition in the great research laboratories of our time to reward ability, to recognize genius, to bring out the work, associated effort. Experience shows capacity of the individual. The aim is team that originality is not expressed through the medium of team work. In a word, the research laboratories owe their failure to make progress with such problems as they were organized to solve because the human is alien to them."

Viewing the question in its still larger aspect, the editor of the New York Nation delivers the punch that should make the "organizers" groggy. It says:

"Wherever two or three are gathered together, and even where they are not gathered together, some one is on his way to organize them. In the madness for organization we have long since lost sight of the end in the means; we have forgotten that neither the fruition nor the advancement of human life can take place in the absence of individual freedom and creativeness, and we have come to believe that the sole meaning of life and of culture is-to be organized. The loss in efficiency is very great indeed."

Of course there is here no idea of discarding organization. It has its uses as well as its abuses. An organization is useful only so far as it is an effective dis