132
The Green Bag
City of Waseca, 118 N. W. Rep. 259, declares the provision entirely proper. After review ing similar provisions in numerous charters it concludes that it is clear upon principle and authority that the legislature may grant or deny to individuals a right of action against municipal corporations for injuries resulting from the negligent manner in which streets and highways are maintained. Having this power, it may grant the right of action upon any conditions which it chooses to prescribe. It may therefore provide that the city shall not be liable unless it has had actual notice of the ex istence of the defect in the street for a desig nated or reasonable time before the accident. MUNICIPAL CORPORATIONS. (Power to prescribe skating rink hours.) Miss.— Relying on the power given it by the state to regulate dance halls and skating rinks, a municipality passed an ordinance providing that they should be closed from six p. m. to six a. m., and that any person using such place of amusement within the prohibited time should be liable to fine or imprisonment or both. Johnson, the proprietor of one of these establishments, applied for an injunction, alleging that the ordinance was unreasonable and void and destroyed his business. In Johnson v. Town of Philadelphia, 47 So. 526, the Supreme Court of Mississippi held that every power given by a state to a municipality to pass ordinances, contained the implied restriction that the ordinance should be rea sonable, and not destructive of a lawful occu pation. It is manifest that this regulation will destroy Johnson's business. Under pre tense of regulation the business attempted to be regulated cannot be destroyed. Rights cannot be stealthily taken away, under a power of municipalities which is defensive and cannot perform the offices of a weapon of destruction. NEGOTIABLE INSTRUMENTS. (Buyer knowing paper void for usury cannot enforce payment.) N. Y.—A bank which purchased from an individual negotiable paper, know ing it to be void for usury, is held, iaSchlesinger v. Lehmaier, 191 N. Y. 69, 83 N. E. 657, 16 L. R. A. (N. S.) 626, not to be able to en force payment of it from the maker, notwith standing a statute provides that in case of any usurious loans made only the interest shall be forfeited, with a penalty for exacting it, where the legislature has protected only holders in good faith without notice from defects in title to negotiable paper.
PUBLIC SERVICE CORPORATIONS. (City ordinance fixing rates valid unless clearly confiscatory.) U. S. Sup. Ot.— In The Mayor and Aldermen of the City of Knoxville, appellant, v. Knoxville Water Company, 29 Sup. Ct. 148, the Supreme Court of the United States, per Mr. Justice Moody, reversed the decree of the United States Circuit Court for the Eastern District of Tennessee, which had given judgment against the city, in a suit in equity which had been brought by the company to restrain the enforcement of an ordinance fixing the maximum rates to be charged (Jan. 4, 1909) :— "It cannot be doubted that in a clear case of confiscation it is the right and duty of the court to annul the law. Thus, in Reagan v. Farmers' Loan Trust Co. (154 U. S. 362, 14 Sup. Ct. 1047, 38 L. Ed. 1014), where the property was worth more than its capitaliza tion, and upon the admitted facts the rates prescribed would not pay one half the inter est on the bonded debt; in Covington, etc.. Turnpike Co. v. Sandford (164 U. S. 578, 17 Sup. Ct. 198, 41 L. Ed. 560), where the rates prescribed would not even pay operat ing expenses; in Smyth v. Ames (169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819), where the rates prescribed left substantially noth ing over operating expenses and cost of ser vice, and in Ex parte Young (28 Sup. Ct. 441), where on the aspect of the case which was before the court it was not disputed that the rates prescribed were in fact confisca tory, injunctions were severally sustained. But the case before us is not a case of this kind. . . . "Regulation of public service corpora tions, which perform their duties under con ditions of necessary monopoly, will occur with greater and greater frequency as time goes on. It is a delicate and dangerous function, and ought to be exercised with a keen sense of justice on the part of the regulating body, met by a frank disclosure on the part of the company to be regulated. The courts ought not to bear the whole burden of saving prop erty from confiscation, though they will not be found wanting where the proof is clear. The legislatures and subordinate bodies to whom the legislative power has been dele gated, ought to do their part." WILLS. (Bequests of personalty.) Del.— The rule in Shelley's Case is held, in Jones v. Rees, 69 Atl. 785, 16 L. R. A. (N. S.) 734, not to extend to bequests of personalty.
