4Q8
THE GREEN BAG
follows that the business of the railroad will be run at a loss. The requirement, however, that a particular train shall be run though a loss will be incurred does not bring on such result. The business of the company in the state may, never theless, prove remunerative. Probably the most important doctrine in this case is the general principle that in govern mental regulation of public utilities it is permissi ble to go so far in a particular matter as to cause actual loss without unconstitutionality; provided that the operations of the public company, taken as a whole, produce fair returns. The case is also noteworthy for the extension of the power of regulation so far as to be actual dictation as to the very details of public service without constitutional objections. B.W. CONTEMPT (Justification). La. — In State v. Reid, 43 So. Rep., 455, which was a contempt proceeding against an attorney, the court holds that where the matter is abusive or insulting, evidence that the language used was justified by the facts is not admissible as a defense, as respect for the judicial office should always be observed and enforced. COURTS (Exclusive Jurisdiction of Federal Courts). U. S. Sup. Ct. — The exclusiveness of the jurisdiction conferred by the Act of Congress of Aug. 15, 1894, delegating to the Federal Circuit Courts the power to determine controversies necessarily involving the title to, and incidentally the right of possession of, Indian allotments, while the same are held in trust by the United States, is construed in McKay v. Kalyton, 27 Sup. Ct. Rep. 346. The court notes that it is observed in the Smith Case, 194 U. S. 408, 24 Sup. Ct. Rep. 676, 48 L. Ed. 1030, that prior to the passage of the Act of 1894 the sole authority for settling disputes concerning Indian allotments resided in the Secretary of the Interior. This being settled, controversies necessarily involving title of Indian allotments, while held in trust by the United States, prior to the Act of 1894, were not primarily cognizable by any court, either state or federal. Therefore it results that the Act of 1894, which delegated to a court of the United States the power to determine such questions, will not be construed as conferring on the state courts the power to pass on such ques tions on which prior to the Act of 1894 no court had any authority. This decision the court regard; as fortified by the subsequent act of Congress, of Feb. 6. 1901, providing that in suits respecting Indian allotments, " the parties thereto
shall be the claimant as plaintiff, and the United States as party defendant," and by the provision of the Act of 1894, that a judgment or decree in any such controversy shall be certified by the court to the Secretary of the Interior. DAMAGES (Mental Anguish). Tex. — Men tal anguish as an element of damages receives consideration in the case of Southern Pacific Company v. Milner, 100 S. W. Rep., 1170, recently decided by the Court of Civil Appeals of Texas. In this case it appears that plaintiff's wife was ill and about to undergo a surgical operation and desired the presence of her mother, and plaintiff purchased transportation of defendant railroad to be delivered by defendant to the mother in a distant town to enable her to come to her daugh ter. Through delay in delivery of the trans portation, the mother's arrival was delayed for two days; but because of the serious illness of the daughter, the operation had been delayed until a week after the mother's arrival. The evidence showed that the wife was suffering from mental anguish by the absence of her mother before she was sent for, and before any notification came that the mother would not arrive at the time expected The court held on authority of Western Union Telephone Co. v. Giffin, 93 Tex. 530, 56 S. W. 744, 77 Am. St. Rep. 896, that no recovery could be had for a simple prolongation ot the men tal sufferings of plaintiff's wife, caused by defend ant's negligence. DIVORCE (Foreign Decree). S. C. — The validity of a divorce obtained in a sister state on what might be termed constructive residence, receives another blow in State v. Westmoreland, 56 S. E. Rep. 673. On authority of Thompson v. Whitman, 18 Wall. (U. S.) 457, 21 L. Ed. 897, and a long line of decisions following this case, the court holds that the jurisdiction of a foreign court in rendering a divorce decree may be inquired into in a collateral proceeding, and it may be shown that plaintiff in a divorce action was not a citizen of the foreign state, but of the state of the forum when the divorce decree was obtained, though the averment ot the record is that he was a citizen of the foreign state. The court quotes from Thomp son v. Whitman, supra: " The records of the domestic tribunals of England and some of the states, it is true, are held to import absolute verity as well in relation to jurisdictional as to other facts, in all collateral proceedings. Public policy and the dignity of the courts are supposed to require that no averment shall be admitted to contradict the record; but . . . that rule has no extraterritorial force
