508
THE GREEN BAG
officer claimed was a disorderly house, but it was held that plaintiff was entitled to restrain defen dant from interfering with customers by stating to them that the house was disorderly and was liable to be raided at any moment and the occu pants arrested. The question as to where the officer should post his men for the purpose of preventing or detecting crime was held to be a detail of police administration, with which the court would not interfere. This, however, it is said, must be done in a lawful manner. The officer may observe, may arrest, and may arraign, but if he arrests, the court must pass upon the facts; the court must do the suppressing. The officer has no power to decide that a place is to be suppressed as disorderly and to act on that theory out of court, hence his action in interfering with plaintiff's customers by statements as to the character of plaintiff's place and threats of possible arrest was without warrant of law. If such con duct were approved, says the court, any legitimate business might be ruined. RAILROADS. (AUTOMATIC COUPLERS — DUE CARE) U. S. DIST. COURT, SOUTHERN DIST. OF ILL. A decision which, while it might well be thought unnecessary, is, nevertheless, so far as we know, the first of its kind, is that in United States v, Southern Ry. Co., 135 Federal Reporter, 122. The question relates to the scope and effect of Act Congress, March 2, 1893 (U.S. Comp. St. 1901, p. 3174). Section 2 of that Act provides that it shall be unlawful for any interstate carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact and which can be uncoupled without the necessity of men going between the engine and the cars. In an action for the penalty provided for violation of this act, defendant introduced evidence tending to show care and diligence in the employment of inspectors and repairers, and asked the court to hold the propositions of law based upon this theory of defense. It is argued by the court, in passing upon this question, that to construe the statute in such a manner that the exercise of diligence by a railroad company would excuse it for a violation of law, would in effect nullify the statute. The fact that the position of the defendant is
untenable is made reasonably apparent by the mere statement of the case by the court, where it says: "The defendant asks the court to hold, in effect, that they cannot haul the car in a defective condition, provided they have failed to use diligence, to discover its defective condition, but that if they have used due diligence, they may haul the car in its defective condition." In such cases it is submitted that it would be im possible for the officers of a government to deter mine in advance whether a statute had been violated or not, and that before a prosecution could be properly instituted they would have to go to the company, ascertain what care it had used, and determine, as a matter of fact and law, whether the acts of the defendant constituted due diligence, and from that determine whether a prosecution might be safely instituted. The case is considered in its analogy to other cases involving statutory penalties for the handling of adulterated goods, the selling of liquor without a license, the selling of oleomargarin, etc., and the cases of State v. Newton, 50 N. J. Law, 549, 1 8 Atlantic 77; Commonwealth v. Gray, 150 Mass. 327, 23 Northeastern, 47; Reg. v. Woodrow, 15 M. & W. 404; Altschul v. State, 8 Ohio Cir. Ct. Rep. 214; People v. Roby, 52 Mich, 577, 18 North western, 365, and People v. Snowberger, 71 North western, 497 are cited, and the holding therein, that in such prosecution the question of intent is of no importance, is approved.
TREASURE TROVE. (TITLE — OWNER. OF REALTY) N. Y. SUP. CT., 3D App. Div. In Burdick et al. v. Chesebrough, 88 N. Y. S. 13, the dust to some extent is shaken off from the venerable doctrine of treasure trove, and it is held that personal property deposited beneath the surface of the soil and so left until the place of deposit is forgotten and neither the owner nor his personal representatives can be found, becomes as a part of the soil, the property of the owner of the realty and passes by gift, sale, or descent as a part of the realty, and if discovered and re moved from the soil becomes the personal prop erty of the owner of the realty as against every one but the true owner, and is not the property of the finder.
