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Virginia Law Register 

R. T. W. Duke, Jr., Editor. 
Frank Moore and S. B. Fisher, Associate Editors. 

Issued Monthly at 0S per Jtnnum. Single Numbers, so cents. 
All Communications should be addressed to the publishers. 

Very little attention has been paid to a decision of the Supreme 
Court of the United States rendered on December 23, 1912, in the 

case of Williams, Agent of West- 
Governmental Agencies — era Union Tel. Co. v. The City of 
The Western Union Talladega. Had this decision been 

Telegraph Company. rendered within the first fifty 

years of this government we do 
not suppose there is a solitary newspaper from one end of the 
country to the other that would not have commented upon it — 
those representing the Federal party with approval and those rep- 
resenting the Democratic-Republican party with horror. 

The city of Talladega laid a license tax of one hundred dollars 
upon each person, firm or corporation commercially engaged in 
business sending messages to and from the city, to and from 
points in the State of Alabama for hire or reward, and required 
the Western Union Telegraph Company to pay this tax. The Su- 
preme Court of Alabama sustained the tax as a proper exercise 
of the police power of the city, as well as for the purposes of 
raising revenue. The defendant company claimed immunity 
from taxation because, by the Act of 1866, Congress, by virtue 
of the authority given it to establish post roads, conferred Fed- 
eral franchises upon the company and made the Western Union 
Telegraph Company an instrumentality of the Federal govern- 
ment and endowed with franchises to construct, maintain and op- 
erate telegraph lines on the post roads of the United States, with 
a duty not only to serve the government of the United States 
but also to serve the public which desired to transact business 
over its lines. This being the case, the court held that the ordi- 
nance imposing the license tax without exemption was void, in 
that it taxed the privilege of carrying on a business, a part of 
which is that of a governmental agency constituted under the laws 



1913. ] EDITORIAL. 859 

of the United States and engaged in an essential part of the pub- 
lic business — communication between the officers and departments 
of the federal government. 

If this be the case, then how can a State impose a license tax 
upon a railroad which carries United States mail? Is not that 
equally engaged in the business of carrying messages and com- 
munications between the officers and departments of the Federal 
government? It will be noted that this license tax was upon the 
business of sending messages entirely within the State. 

The United States Supreme Court is generally able when it 
comes to a pinch to get around the too-far reaching effect of its 
decisions, but it seems to us it will have a hard time to get around 
this decision if the question of the franchise tax upon a railroad 
ever comes up before it, especially if the railroad was to avail itself 
of the Act of 1866. It is a little hard to reconcile the later decision 
of Ewing v. The City of Leavenworth, decided by the same court 
on January 6, 1913,' with this decision. Here a tax was imposed 
upon the United States Express Company by way of a license on 
the business of said company, entirely intrastate, although the 
curious fact was stated in this case that no package could be 
brought into or sent out of Leavenworth except by making a 
short passage through Missouri. The court held that this, like 
the baby in Maryatt's novel, was too little to count for much, and 
declared the tax valid, although in the case of Handley v. K. C. 
S. Railway Company, 187 U. S. 617, the court had held a similar 
license tax void because only fifty-two miles were within the 
State of Arkansas and the rest out of the State. The case last 
decided is a somewhat severe application of the de minimis idea. 



The last examination given by the Board of Law Examiners 
in Richmond on January 15th and which was published in our 

February number, is easily the most 
The Recent Bar Exam- difficult examination that has ever 
ination. been presented to applicants for ad- 

mission to the Bar in this State, and 
in our humble judgment is much severer than is necessary to test 
the ability of the would-be practitioner unless a very judicious 
scale of marking is in force with the Board. Whilst a member of 



860 18 Virginia law register. [ March, 

the Board denies that it is the policy of that body to restrict as 
far as possible the number of men to be licensed to practice in this 
State, examinations of this character will necessarily have that 
effect, whether this be the policy of the Board or not. 

This member of the Board assigned three causes for the fail- 
ure of so large a number to pass : First, that the applicants study 
old questions and it is the policy of the Board never to ask them ; 
second, that applicants the night before are apt to indulge too 
freely in alcoholic liquors; and third, that applicants who have 
not completed the law course or who are not otherwise sufficiently 
grounded in the elementary principles of the law, do not under- 
stand the questions propounded. As to the second reason there 
cannot of course be any argument, for a man who prefers to frolic 
the night before so important a matter as his examination for ad- 
mittance to the Bar, ought not to be licensed to practice law even 
if he stood the examination ; and it is not to be regretted that 
such persons fail ; but with regard to the first reason we believe 
that a careful review of the old questions furnishes a very good 
guide for any review that the student must make in preparation 
for an examination and we can see no reason why questions of 
a similar nature should not be asked. In fact, it is very hard to 
see how an examination on elementary principles can be had 
without going over some of the old ground. One of the very in- 
cidents quoted by the gentleman of an absurd answer to a per- 
fectly plain and easy question bears us out in this. One appli- 
cant in reply to a question asked him, "In what cases has the 
Supreme Court original jurisdiction?" replied, "In misdemeanor 
cases." The applicant could not have fallen into this error if he 
had examined previous questions, for this same question had 
been asked very many times before. 

As for the third reason advanced by the member of the Board, 
we have always thought that the examination should be upon 
elementary principles, more than particular cases or hard sub- 
jects. There is no doubt, as suggested, that undergraduates 
should be discouraged from taking the examination and we hap- 
pen to know that the Law Faculty of the University of Virginia 
counsels its students to refrain from applying until they have 
completed their course and, we are inclined to think, place ob- 



1913. ] EDITORIAL. 861 

stacks in the way of students' taking this examination prema- 
turely. 

Needless to say we have the highest confidence in every mem- 
ber of the Examining Board and they have always shown the 
utmost desire to be perfectly fair to every candidate, and 
wherever either the professors in colleges or applicants have 
shown dissatisfaction with the failure in any particular case the 
Board has been perfectly willing to take the matter up to the end 
that all concerned should be convinced and satisfied. As a re- 
sult of one of these "post mortems" one of the leading teachers 
of the law in this State was so well satisfied that the Board was 
right in rejecting the applicant that he stated, "This student got 
what was coming to him." However, some of the best papers 
handed in have been those of non-degree men and undergradu- 
ates. 



And this reminds us that the following proviso has been car- 
ried from § 3191 of the Virginia Code into the amended section 

which created the Board of Law Ex- 
Limitation on Bight aminers and took out of the hands of 
of Attorneys the Court of Appeals the duty of ex- 

to Qualify. amining applicants for admission to the 

Bar: 

"Provided the attorney at law holding the same has already 
commenced the practice of his profession or shall commence the 
practice thereof within two years from the date of the granting 
of said license — otherwise, the said attorney shall not practice in 
this State without first obtaining a license as provided by this 
act." 

By this proviso all licenses heretofore legally granted are vali- 
dated, provided the attorney a,t law holding the same has already 
commenced the practice of his profession, or shall commence the 
practice thereof within two years from the date of the granting 
of said license. 

Now it is a matter of common knowledge that the purpose of 
this proviso originally was to prevent those who had taken that 
merely nominal examination held before a single judge from en- 
tering upon the practice of law unless he did so within two years 



862 18 Virginia law register. [ March, 

after taking it. It was a penalty. Of course many who contem- 
plated practicing law but who were not at the time prepared to 
commence at once stood this examination merely to avoid the 
more rigid examination then provided for before the Court of 
Appeals. But this legislation, as contained in the statute creating 
the Board of Law Examiners, apparently impose this limitation 
not only upon such persons referred to above, but also upon those 
who have stood the examination before the Court of Appeals; 
at least, that is our construction of this act. But the policy of 
this proviso was never intended to bar such persons. In other 
words, the evils intended to be corrected are non-existent now 
and there would seem to be no reason for embracing this proviso 
in the present statute, unless the framer of such enactment in- 
tended to do great injustice to those who had already passed an 
adequate examination. Aside from this the act is very ambigu- 
ous and difficult of construction. For example: "When has a 
person commenced the practice of his profession" within the 
meaning of these terms as used in the statute? Is holding one's 
self out to the public as an attorney necessary ? If so, what con- 
stitutes holding one's self out as a practitioner? Is it necessary 
to pay the license fee? Moreover very few judges in the State 
seem to be aware of the existence of this limitation and hence 
many attorneys are qualified before our courts who may not be 
entitled to do so. We cannot see what sound policy is subserved 
by tacking this penalty for delay on those that may at the time 
be unable to enter upon the practice immediately upon passing 
the examination or even within two years thereafter. 



B, a married woman, received land under a grant, for her sole 
and separate estate, with right of disposal by will, "but without 

power to mortgage or other- 
Deeds — Restraints on Alien- wise incumber, or to sell or 
ation — Validity. convey the same during her 

life" A statute of Kentucky, 
in existence when the conveyance was made, gave married women 
the right to convey or devise their separate estates unless for- 
bidden by the instrument under which such estates were acquired. 
B contracted to sell the land to defendant C who then refused to 



1913. ] EDITORIAL. 863 

perform because B could not give a good title. Held, that B had 
a fee and could sell during her life, and that C must perform, for 
the restraint on her right to alienate the land given her was void 
as unreasonable. Cropper v. Bowles (Ky. 1912), 150 S. W. 380. 

As a general proposition, when an estate is given to one in fee, 
restrictions against alienation are void as against public policy. 
13 Cyc. 687; 2 Tiffany, Real Property, 1135; Murray v. Green, 
64 Cal. 363; Munroe v. Hall, 97 N. C. 206; Miller v. Denny, 99 
Ky. 53 ; Booker v. Booker, 104 N. Y. S. 21 ; Diamond v. Rotan, 
124 S. W. 196; Pritchard v. Baily, 113 N. C. 521; Teany v. 
Mains, 113 la. 53; Latimer v. Waddell, 119 N. C. 370. There is 
an exception to this general rule, that there may be a restriction 
placed on the alienation of property granted, if it be reasonable. 
13 Cyc. 687; Munroe v. Hall, 97 N. C. 206. For example, a 
condition that the grantee shall not alienate for a particular time, 
or to a particular person, is good. Langdon v. Ingram's Guard- 
ian, 28 Ind. 360. Or a restriction is good if for the life of any 
person in existence at the time of the grant. M'Williams v. 
Nisly, 2 Serg. & R. 507. Also a condition, where husband and 
wife were grantees in equal parts, that the wife should not sell 
or incumber her half, was held good in Hicks v. Cochran, 4 Edw. 
Ch. 107. Finally, a restraint on alienation may be imposed in 
granting the separate estate of a married woman, especially 
where the estate is an equitable one. 13 Cyc. 687; 2 Perry, 
Trusts, §§ 670-1 ; 2 Tiffany, Real Property, 1138; Camp v. cieary, 
76 Va. 143. 

It is exceedingly hard for us to understand how the Kentucky 
Court ever arrived at the conclusion they did in this case, for 
we cannot see how the restraint can be adjudged unreasonable; 
for to hold it reasonable would be merely to carry out the exact 
wording of the statute; for the provision against alienation by 
Mrs. B. during her life was contained in the grant to her. The 
cases cited by the Court — Stewart v. Brady, 3 Bush. 623, and 
Harkness v. Lisle, 132 Kentucky 767 — while they discuss a gen- 
eral rule against alienation, do not touch on the exception of mar- 
ried women's estates. 

We have no such statute at present in the State of Virginia 
but the question is one not without interest. Our courts, it is 



864 18 Virginia law register. [ March, 

true, have steadily set their faces against restraints upon alien- 
ation where there was anything in the deed which could be con- 
strued to give the party a fee, but would it not be possible in 
this State still in spite of our Married Woman's Act, to convey 
property to a married woman with the provision that if she 
should encumber, mortgage, or otherwise attempt to convey the 
same, the property should vest in some third party, to be held 
in trust for her benefit. We have known one case in which one 
of the ablest lawyers in the State advised that this could be done 
in order to establish a spendthrift trust, and we can see no good 
reason why such an estate should not be given to a married woman 
as separate estate, with a proviso containing a restraint against 
her squandering it in her lifetime, and thereby insure her against 
poverty and want. 



The Supreme Court of the State of Indiana in the case of 
Barker v. Boyle, 99 N. E. 986, has rendered an important 

decision which it will be well 
Liability of a Promoter for our organizers of corporations 
for Security of Profits. to bear in mind; for while a great 

many of such organizers have 
been of the opinion that after the Corporation Commission had 
passed upon the question of the issuing of stock for property all 
future trouble was barred except in cases of direct fraud, we 
are strongly inclined to think that the language of the court of 
Indiana in the case named would be that adopted by the courts 
in our State. That Court said in part as follows : 

"While a promoter, notwithstanding the fiduciary relation, 
may sell property to the company which he is promoting, he may 
do so lawfully only when he shall have provided an independent 
board of officers, in no wise under his control, and make a full 
disclosure to the corporation through them; or when he shall 
have made a full disclosure of all material facts to each original 
subscriber for shares of stock in the corporation; or when he 
shall have procured a ratification of the sale, after disclosing its 
circumstances, by vote of the stockholders of the completely es- 
tablished corporation." 

We believe that the law as thus laid down is just and proper 



1913. ] EDITORIAL. 865 

and it is certainly sustained by all the principles of common right 
and justice. 



The monstrous and measureless evil wrought by the use of in- 
toxicating liquors is generally admitted by all thinking people. 

This hydra-headed and remorse- 
Anti-Salooners in Antic- less monster with ceaseless and 
Behavior. tireless energy, wastes the sub- 

stance of the poor, manufactures 
burdensome taxes for the public, monopolizes the valuable time 
of the courts, fills jails, penitentiaries, and asylums, ruins homes, 
destroys manhood, terrorizes helpless women and innocent chil- 
dren, baffles the church and mocks the law, and, in answering its 
inexorable demands, "each new morn new widows mourn, new 
orphans cry, new wrongs strike Heaven in the face." These are 
the products of a curse not imposed by the decree of God, but 
self-inflicted by the voluntary conduct of man, its weak and 
wicked victim. Judges of all classes of criminal courts, speak- 
ing from official experience, have grown weary in calling atten- 
tion to the drink habit as one of the principal causes of crime, 
and nothing that we may say can add to this manifest truth. 
And we venture to say that if all men in Virginia could be made 
sober, prisons would be well-nigh vacant, the chain gang system 
would fall into an innocuous desuetude, and cities, towns and 
villages throughout this State would witness the renaissance of 
many poverty stricken, miserable and unhappy families. That 
great English Premier did not exaggerate when he declared that 
"greater calamities have been inflicted on mankind by intemper- 
ance than by the three great historical scourges — war, pestilence 
and famine," and this evil is "the measure of a nation's discredit 
and disgrace." Bearing all this in mind it is with regret that we 
note the downfall and humiliation of the so-called Law and Or- 
der League. We are at a loss whither to turn for our uplift and 
fear that there is "no help in us." In Scott v. O'Hara (Ky.), 
151 S. W. — , we find the Anti-Saloon League engaged in com- 
pounding felonies and selling their birthright for a few pieces 
of silver. This league, which had started a number of prosecu- 
tions against the plaintiff for the illegal sale of intoxicating liq- 
—5 



866 18 Virginia law register. [ March, 

uors, in collusion with the judge of the police court, stifled the 
same by extorting money from the plaintiffs whom they alleged 
had violated the liquor law. In an action by the plaintiff to re- 
cover back this money, the court applied the rule of in pari de- 
licto potior est conditio defendentio and denied any recovery. 
This all goes to show that this evil can never be successfully re- 
formed by any such organization, but depends on education and 
enlightenment. 



Our ladies who "toil" at those wonderful games called bridge 
and progressive whist will be very much surprised to hear that in 
the "tight little island" across the herring 
Progressive Whist, pond they would be liable to get them- 
selves in trouble in case they played them 
in the British Isles and that under the Gaming House Act in 
England the ladies who are in the habit of having bridge parties 
regularly at their houses would be liable to prosecution. In 
Morris v. Godfrey, decided April 26th, 1912, it has been held to 
be clear law in England that any person who conducts on his 
premises a "progressive whist" competition under the usual con- 
ditions is guilty of using the premises for "unlawful gaming" 
within the meaning of the Gaming Act, 1859, § 4. To constitute 
"unlawful gaming" it is not necessary that the games played 
should be unlawful games ; it is sufficient that the play is carried 
on in a "common gaming house," i. e., a house in which a large 
number of persons are invited habitually to congregate for the 
purpose of gaming. (See Gaming Act, 1845, and Gaming 
Houses Act, 1854, § 2.) The fact that the user of the premises 
is confined to a limited class such as the members of a club is no 
defence, provided the user is "habitual" (Jehks v. Turpin; 53 L. 
J., M. C. 161). But a man who occasionally games with a 
party of friends in his own house cannot be said to be guilty of 
"habitually" keeping it open for gaming (Regina v. Davies, 66 
L. J., Q. B. 513). The games played must be games of chance, 
not games of skill ; but the question as to which of these categories 
is entitled to the inclusion of any particular game is not a ques- 
tion of fact for the jury, but one of law for the judge (Regina v. 
Davies, supra). 



1913. ] EDITORIAL. 867 

It seems a rather curious conclusion of law, however, that the 
question as to what is a game of chance should be one of law, 
especially in view of the peculiar ruling of Mr. Justice Avery in 
Morris v. Godfrey, 76 J. P. 298, which was that the fact that 
persons of both sexes take part in the game of progressive whist 
is an important consideration in determining whether it is a 
game of chance. Whether the learned judge meant to reflect 
upon the skill of the ladies or held that any game in which a 
woman took part- must necessarily be a game of chance we leave 
to the consideration of those more versed in this matter than 
ourselves. 



Readers of the Register will notice that the name of Mr. 
James F. Minor, Associate Editor, no longer appears in this 
periodical, and that with the present num- 
Our New Editorial ber Mr. S. B. Fisher becomes an Asso- 
Associate. date Editor. Mr. James F. Minor has 

removed to the city of Richmond and 
under most auspicious circumstances has commenced the active 
practice of his profession. The Editors associated with Mr. 
Minor in the conduct of this publication unite in wishing him 
the degree of prosperity and success to which his talents so 
plainly entitle him. During his editorial connection the relation 
between himself, the Editor in Chief, and his Associate Editor 
were of the most harmonious and cordial nature. We shall miss 
his exceeding carefulness, his wondrous ability for taking pains 
and his earnest desire to make this periodical worthy of the pro- 
fession in Virginia. The numerous annotations to cases signed 
with his initials are the best evidences of the nature of his work, 
and have a'ways met with the highest commendation. 

The Register is to be congratulated upon having secured Mr. 
Fisher as Mr. Minor's successor. Mr. Fisher has been for some 
years connected with the Michie Company and his work upon 
the Encyclopedia of United States Supreme Court Reports and 
other works published by the Michie Company should assure 
our readers that his efforts on behalf of this journal will be such 
as to continue the approval and patronage of the profession.