3i6
THE GREEN BAG
within the constitutional prohibition, or whether the order of the superintendent of public instruc tion against the wearing of such garb was regarded as controlling. Against the soundness of the latter position the reasoning of the dissenting opinion seems convincing, even conceding to the superintendent of public instruction the large ad ministrative power for which New York has be come conspicuous. In Pennsylvania the point which caused the controversy in this case is covered by statute (Law of June 27, 1895). SLANDER. (Privileged Communications.) Cal. — In Carpenter v. Ashley, 83 Pac. 444, a pro vision of the California Civil Code that a privi leged communication is one made in any legislative or judicial proceeding, but irrelevant or immate rial matter voluntarily or maliciously published in the course of judicial proceedings is not privi leged, is construed, and it is held that a district attorney conducting a criminal case in a justice's court is not privileged to charge opposing counsel with perjury or subornation of perjury. TAXATION. (Excise Tares — Trading Stamps.) Mass. — Another phase of the trading stamp ques tion, several decisions on which have been pre viously noted in this magazine, is presented by O'Keeffe v. City of Somerville, 76 N. E. Rep. 457 Mass. Const., art. 4, § i, authorizes the legislature to impose reasonable duties and ex cises upon any produce, goods, wares, merchan
dise, and commodities whatsoever brought into, produced, etc., within the commonwealth. Statutes 1904, p. 376, c. 403, § i, provides that every person selling, giving, or delivering trading stamps in connection with a sale of articles shall pay an excise tax for carrying on such business. This statute it is held is not justified by the con stitutional provision inasmuch as the right to conduct the business in the manner provided in the section is not a commodity within the mean ing of the Constitution. WILLS. (Probate — Appeals.) Ky. — A rather peculiar holding, the force of which, it is true, is to some extent limited by its dependence upon local statutes, is contained in Brooks v. Paine's Ex'rs, 90.8. W. Rep. 600. Ky. St. 1903, §4849, gives the county court of the county of decedent's residence original jurisdiction to probate his will : section 4852 declares the probate of a will before the county court conclusive, except as to the jurisdiction of the court, until superseded, reversed, or annulled; section 4857 authorizes the court to permit a document to be proven ex forte, or to cause all parties in interest to be before the court, while section 4859 authorizes any person inter ested in the probate of a will to prosecute an appeal to the circuit court. Under this statutory system for the probating of wills, it is held that general creditors of an insolvent heir of a decedent, who claim that a purported will disheriting their debtor is fraudulent as to them, may appeal from an order probating the will where their debtor him self fails to prosecute such an appeal.
