Appellants Brief — Young v. Masci

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No. 648 VAN GS

Supreme Court of the United States

CHARLES YOUNG, Appellant

VS.

ANTHONY Mascl, Appellee

APPELLANT’S BRIEF OPPOSING MOTION

TO DISMISS APPEAL

DANIEL THEW WRIGHT,

R. ROBINSON CHANCE,

Counsel for Appellants.

W. F. ROBERTS CO. WASHINGTON 0. C

OG AIS RO 24* AN PS EES,

Supreme Court of the United States

CHARLES YOUNG, Appellant

VS.

ANTHONY Mascl, Appellee

APPELLANT’S BRIEF OPPOSING MOTION

TO DISMISS APPEAL

It is obvious that appellee’s counsel seeks to convey

the impression that the case involves merely the con-

struction of a valid statute, or the question whether

one State will extend comity to a valid statute of

another State. Of course neither of those questions

are federal questions.

The position taken in the papers served for ap-

pellee, that we assumed the New York statute to be

valid if applied and enforced to impose liability on

Young, who was never within the legislative jurisdic-

tion of New York, is refuted by the record.

The constitutional question was definitely and

distinctly raised in the trial court by paragraphs 5

and 9 of the motion to strike out the amended com-

plaint (R. 14-15): by objection to the admission of

the New York statute in evidence (R. 76-77): by

motion to direct a verdict at the conclusion of the

evidence (R. 144-145): by exception to the courts

charge to the jury (R. 155-156) : by express reserva-

tion of these questions for appeal (R. 159-160): by

the “Grounds for Appeal” (R. 165-170) :

In New York ex re/. Bryant v. Zimmerman, 278

U. S. 63, 67; 73 L. Ed. 184, 187, was said :-—

“There are various ways in which the validity

of a state statute may be drawn in question on the

ground that it is repugnant to the Constitution

of the United States. No particular form of

words or phrases is essential, but only that the

claim of invalidity and the ground therefor be

brought to the attention of the state court with

fair precision and in due time. And if the

record as a whole shows either expressly or by

clear intendment that this was done, the claim is

to be regarded as having been adequately pre-

sented.

Of course the decision must have been against

the claim of invalidity, but it is not necessary

that the ruling shall have been put in direct

terms. If the necessary effect of the judgment

has been to deny the claim, that is enough.”

The New Jersey Court of Errors and Appeals

recognized that appellant Young did not assume the

statute to be valid to impose liability upon him.

Beginning with the paragraph which starts: “The

insistence of the appellant is that the New York

statute can have no effect to impose liability upon an

owner who is a resident of New Jersey and who was

in New Jersey at the time of the occurrence com-

plained of, when the lending or bailment took place

in New Jersey.”—and continuing to the end of the

opinion, the Court of Errors and Appeals considers

and decides whether the New York statute could,

without violating the United States Constitution, im-

pose liability upon Young under the circumstances of

this case. In view of what was said in the opinion

— NEI Re OY POR LT LLP PELE,

ae WEEP AE SRR IO A DERE 4 :

it is evident that the Court of Errors and Appeals

recognized that we were denying rather than assum-

ing validity of the statute in so far as extra-territorial

effect was claimed for it.

In view of the fact that the Court of Errors and

Appeals actually decided the federal question ad-

versely to Young the following cases are pertinent :—

In Manhattan Life Ins. Co. v. Cohen, 234 U. S.

123, 134; 58 L. Ed. 1245, 1253 reference is made to

“the elementary rule that it is irrelevant to in-

quire how and when a Federal question was

raised in a court below when it appears that

such question was actually considered and de-

cided.”

In Miedreich v. Lauenstein, 232 U. S. 236, 243;

58 L. Ed. 584, 589 the court said :—

“Where the state court holds that a Federal

question is made before it, according to its prac-

tice and proceeds to determine it, this court will

regard the question as duly made.”

North Carolina R. Co. v. Zachary 232 U. S. 248,

257; 58 L. Ed. 591, 595 answers the objection that a

Federal question was not properly raised, thus :—

“But this is a question of state practice; and

since it appears that defendant expressly claimed

immunity by reason of the act of Congress, and

the highest court of the state either decided or

assumed that the record sufficiently presented a

question of Federal right, and decided against

the party asserting that right, the decisions of

this court render it clear that it is our duty

to pass upon the merits of the Federal ques-

tion.”

In Chambers v. B. & O. R. Co. 207 U. S. 142, 148;

52 L. Ed. 143, 146, is said :-—

“The defendant objects to our jurisdiction to

re-examine the judgment because the Federal

question was not properly and seasonably raised

in the courts of the state. But it clearly and un-

mistakably appears from the opinion of the

Supreme Court that the Federal question was

assumed to be in issue, was decided against the

claim of Federal right, and that the decision of

the question was essential to the judgment ren-

dered. This is enough to give this court the

authority to re-examine that question on writ of

error.”

In Mallinckrodt Chemical Works v. Missouri,

238 U.S. 41, 49; 59 L. Ed. 1192, 1195, is said :—

“There is a motion to dismiss, based upon the

ground that the Federal questions here set up

were not raised in the trial court, or in the Su-

preme Court of the state with sufficient definite-

ness to comply with Sec. 237 Judicial Code (act

of March 3, 1911, 36 Stat. at L. 1087, 1156,

Chap. 231, Comp. Stat. 1913, 968, 1214. It ap-

pears, however, from the opinion of the Su-

preme Court that the question of equal protec-

tion under the Fourteenth Amendment was

treated as being sufficiently raised, and was

specifically dealt with and ruled against the

plaintiff in error. This is sufficient to confer

jurisdiction upon this court and the motion to

dismiss must be denied.”

See also Chicago Rock Island and Pacific Ry. 7

Perry, 259 U. S. 548; 66 L. Ed. 1056, Syllabus I.

The fact that the decision of the Constitutional

question was essential to the judgment rendered by

the New Jersey Court of Errors and Appeals, is es-

tablished by considering that the amended complaint

2 att RAE

pleaded the New York statute, and set out no other

cause of action: a judgment for plaintiff, necessarily

affirmed the validity of that statute. The same

result follows from the charge of the Trial Court to

the jury, the correctness of which was affirmed; the

Trial Court charged:

“As I understand it, it is not disputed under

the evidence submitted in this case that the acci-

dent happened in the City of New York and the

State of New York, and, therefore, under the

rule of law I charge you that the laws of the

state where the accident happened control with

respect to liability. * * * So I charge you that

it is immaterial whether or not the operator,

Michael Balbino, was at the time of the accident

operating the automobile of the defendant,

Charles Young, on his own business or on

Young’s business. All that is necessary for you

to find is that the operator, Michael Balbino,

was at the time of the accident operating this

automobile with the defendant’s permission,

either express or implied. * * * If you find

that the eperater, Balbino, was driving this

automobile at the time of the accident with the

permission of the defendant, either express or

implied, you must then determine the question

of negligence on the part of the operator, Bal-

bino, and the question of the contributory negli-

gence on the part of the plaintiff. If you find

that the operator, Balbino, was negligent and

that such negligence was the proximate and na-

tural cause of the accident and injuries, and that

the plaintiff was free from contributory negli-

gence, and also find from the evidence—which

may not be disputed, but if it is that is for you

to say—that permission was given by the de-

fendant to Balbino—and I think I also said if

you find that the plaintiff was not guilty of con-

tributory negligence—then you would come to

the question of the plaintiff's damages in this

IF RAGA A REESE MIEN a

case. The plaintiff would be entitled to recover

as against this defendant, first, such sum as you

believe to be fair and reasonable for the bodily

injuries sustained.”

From which it is manifest, that the New Jersey

Court of Errors and Appeals could not have ap-

proved this charge, and decided the case, without

affirming the validity of the New York Statute as

applied to the case, all against the appellant’s claim

that the Statute so applied, violated the Constitution

of the United States.

The cases cited by Appellee, as making against

jurisdiction, are not very closely in point.

Michigan Cent. Railroad Co. vs. Mich. Sou. 60,

U. S. 378, 15 L. Ed. 689 in substance holds that juris-

diction must appear by direct allegation or necessary

intendment. Our reply to this is that it does appear

and that the state court decided the Federal question

in its opinion, and erroneously decided it.

Murdock vs. Memphis, 87 U. S. 590, 22 L. Ed. 429

presents a lengthy outline of the points essential to

jurisdiction but we see nothing in it which leads to a

conclusion that there was not drawn in question in

the case sub judice, the validity of the New York

statute if applied and enforced to impose liability

upon Young who had never been in New York, and

was not amenable to New York law.

Miller v. Cornwall R. R. 168 U.S. 131, 42 L. Ed.

409 holds that the validity of a statute is drawn in

question whenever the power to enact it, as it is

by its terms, or is made to read by construction, is

fairly open to denial and is denied. We think this

case supports our contention rather than that of the

appellee. It has been our continuous protest that the

New York legislature had no power to enact a law

: wud

fs . - " ; . ents ;

which could impose liability upon an owner who is

a resident of New Jersey and who was in New Jersey

at the time of the occurrence complained of, when

the lending or bailment took place in New Jersey,

under the law of which state the bailor is not liable

for the negligence of the bailee; and opinion of the

Court of Errors and Appeals expressly recognizes

that we so insisted.

If the above cases and those cited in the statement

of jurisdiction filed by appellant did not entitle him

to have the case reviewed by appeal, the rule now

is that mistake in adopting the procedure of appeal

when certiorari should have been taken, is not fatal.

(Judicial Code, Section 237-c, as amended by Act

of February 13, 1925, 43 Stat. 937; Title 28, USCA,

Section 344, sub-division c.) One case illustrating

this is R--he v. McDonald, 275 U. S. 449, 72 L. Ed.

365, w’ cre a writ of error was dismissed, certiorari

granted, the case considered on its merits and

judgment therein reversed. But the appeal was

properly allowed in this case and that the motion to

dismiss should be denied, is

Respectfully submitted,

DANIEL THEW WRIGHT

R. ROBINSON CHANCE

Counsel for Appellant.

LOR CM WaT

A LOD ABS NOLS WAH EN.

ET ET SL RNIN NIE SP HF NG

FILE COPY

Supreme Court of the United States———

No. 643

CHARLES YOUNG, Appellant

VS.

ANTHONY Mascl, Appellee

BRIEF FOR APPELLANT

OCTOBER TERM 1932

DANIEL THEW WRIGHT,

R. ROBINSON CHANCE,

PHILIP ERSHLER

Counsel for Appellant.

W. +. ROBERTS CO. WASHINGTON 0. ¢

PAUSE eRe 5 Tete Sale es cee , 1 aueren naan ‘ et —

INDEX

Page

et I i) l

Assignments 0f Errors... cece conan cael 3

SIE eect e kns ere sabe ees ee 9

The Application of the N. Y. Statute Offends

Sec. 10, Art. 1 of the Constitution... ae

State Statutes Have No Extra-Territorial

ane ee A iO i 6 lL re ae Bn 12

The Application of the N. Y. Statute Offends

the 14th Amendment to the Constitution... 17

Denial of Equal Protection of the Law................ 21

STATUTES CITED

Laws of New York 1929 V. 1, p. 82

Cahills Cons. L. N.Y. 1930, p. 2573 ..ccccccccccson 2

CASES CITED

weer on. 4). G., Zoe 0. Be, WO 18

Allgeyer vs. Louisiana, 165 U.S. 589.0. 18

American Banana Co. vs. Fruit Co., 213 U. S.

odie, Lee ra et ee eo. 12

Carter vs. Texas, 177 "J. S. 442... ee be

Coppage vs. Kansas, 236 U. S. 14... 19

Danke-Walker Co. vs. Bondurant, 257 U.S. 282.8

Dewey vs. Des Moines, 173 U.S. 193.0. 1S

Doran vs. Thompson, 76 N. J. Li. 754. oon 10

Fiske ws. Kansas, 274 U.S. 380 .ccccccccccccccsccccssunn., §

NE BENS

age

Gavin vs. Cohen, 136 Atl. 330....... 10

Heiner vs. Donnan, 285 U. S. 312 19

Home Telephone Co. vs. Los Angeles, 227 U.S.

, ER NRA aN SIR, vector Ha ea 22

Lee vs. Hopkins, 118 U. S. 356. 22

Meyers vs. Nebraska, , ie MAES 20

Maurer vs. Brown, 106 N. J. Li. 284 ccccccccceeceneeees 10

N. Y. L. E. vs. New Jersey Elec. Co., 60 N. J. L.

BIE iach ovietutiaeab mates 10

N. Y. Life Ins. Co. vs. Head, 234 U. S. 160.......... 13

Pennoyer vs. Neff, 95 U. S. 714. 12

Sanford vs. McDonald, 248 U.S. 185 ...eccccsccscsesee 12

Scott vs McNeal, 154 U. S. 45........ 21

Twin City Pipe Co. vs. Harding Co., 283 U. S.

DURE iodo cpecanncioainatoninners 20

Wolff Packing Co. v. Court of Indust. Rel., 262

U. S. 399 20

Supreme Court of the United States

No. 643

CHARLES YOUNG, Appellant

vs.

ANTHONY Mascl, Appellee

BRIEF FOR APPELLANT

The case is here on appeal from a judgment of the

New Jersey Court of Errors and Appeals, affirming

against the appellant, a judgment which was

rendered by the New Jersey Supreme Court for

Passaic County, a trial court of original jurisdiction.

The case is reported in 162 Atl. 623.

The authorities sustaining the jurisdiction of this

Court on appeal, appear in appellant’s “Brief Oppos-

ing Motion to Dismiss Appeal,” to which reference

is made.

NATURE OF THE CASE

The appellant, Young, was a citizen and resident

of the State of New Jersey; Masci the appellee, a

citizen and resident of the State of New York. One

Balbino, a friend of Young, wishing to take his

family for a pleasure ride, borrowed Young’s auto-

mobile in New Jersey, for that purpose. (R. 43-13.)

There was no “hiring” of the automobile. The

bailment took place in the State of New Jersey.

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Young had no knowledge where Balbino intended to

drive, and it is doubtful from the evidence whether

Balbino knew himself at the time he borrowed the

car. Young had not been in New York, had no

knowledge of the Laws of New York, and the

thought that Balbino might possibly drive the car

out of the State of New Jersey never occurred to him.

However, Balbino, after having accumulated his

family, in his meanderings did journey into the City

and State of New York, and there accidentally struck

the appellee, Masci, who was a pedestrian upon the

street of New York City.

Masci sued Young in the New Jersey Supreme

Court for Passaic County. His Amended Complaint

contained two counts (R. 1) both based upon a

Statute of the State of New York, which was pleaded

verbatim in the Amended Complaint and is as

follows :—

“Every owner of a motor vehicle or motor-

cycle operated upon a public highway shall be

liable and responsible for death or injuries to

person or property resulting from negligence in

the operation of such motor vehicle or motor-

cycle in the business of such owner or otherwise

by any person legally using or operating the

same with the permission express or implied of

said owner.” (Laws N. Y. 1929, Vol. 1, p. 82,

Cahill’s Cons. L. N. Y. 1930, p. 2573.)

From the inception of the case, the appellant

Young contended that the application of the New

York Statute to him in the case, violated parts of the

Constitution of the United States.

The constitutional questions were raised in the

trial court by Motion to Strike out the Amended

Complaint (R. 5), by objection to the admission

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of the New York Statute in evidence at the trial

(R. 28), by Motion for a Non-Suit at the conclusion

of plaintiff's evidence by Motion for a Directed

Verdict at the conclusion of all the evidence (R. 75-

76), and by exception to the Court’s charge to the

jury (R. 83-84). The trial resulted in a verdict for

Masci and against Young for $14,000; remittitur of

$4,000 and judgment for $10,000 against Young

entered. (R. II.) The constitutional questions

were expressly specified for determination by the

New Jersey Court of Errors and Appeals, which

method seems to be appropriate practice in the State

of New Jersey (R. 84).

ASSIGNMENT OF ERRORS

1. The New Jersey Court of Errors and Ap-

peals erred in deciding that Section 59 of

Chapter 54 of the Laws of 1929 of the State of

New York, which is as follows:

“Every owner of a motor vehicle or

motorcycle operated upon a public highway

shall be liable and responsible for death or

injuries to person or property resulting

from negligence in the operation of such

motor vehicle or motorcycle in the business

of such owner or otherwise by any person

legally using or operating the same with

the permission express or implied of said

owner.”

is valid and is not repugnant to Section 10 of

Article 1 of the Constitution of the United

States and not repugnant to the 14th Amend-

ment of the Constitution of the United States in

its application to the Appellant, said Charles

Young, in this case.

CARTAN RR ERIRE IEE OM 0d ae

2. The New Jersey Court of Errors and

Appeals erred in affirming the judgment of the

Supreme Court of New Jersey, denying De-

fendant’s motion to strike out the first and second

counts of Plaintiff's Amended Complaint, which

for cause of action set out Sec. 59, Ch. 54 of the

Laws of 1929 of the State of New York, above

quoted, and in deciding that said statute in its

CE cs oe

4 application to the Appellant in this case, was

% valid, and did not deny him equal protection of

: the Law, and did not deprive him of liberty

4 and property without due process of law, in

' contravention of the 14th Amendment to the

: Constitution of the United States.

‘ 3. The New Jersey Court of Errors and

‘ Appeals erred in affirming the judgment of the

New Jersey Supreme Court, in admitting in

evidence at the t. al, over the objection and ex-

ception of the defendant, Sec. 59, Ch. 54 of the

Laws of 1929 of the State of New York, above

quoted ; and erred in deciding that such applica-

tion of such statute to the Appellant, Charles

Young, in this case was valid was not repugnant

to the 14th Amendment to the Constitution of

the United States, did not deny him equal pro-

tection of the law, and did not deprive him of

liberty or property without due process of law.

4. The New Jersey Court of Errors and

Appeals erred in affirming the judgment of the

New Jersey Supreme Court in denying the

motion of the Defendant, Charles Young, made

at the close of all the evidence, to direct the

jury to return a verdict in his favor, and erred

in failing to decide that to apply said Sec. 59,

Ch. 54 of the 1929 Laws of New York to Ap-

Os St attics |

pellant, Charles Young, in this case would de-

prive him of his property without due process

of law in violation of the 14th Amendment to

the Constitution of the United States; would

deprive him of his liberty to contract and make

contracts, in violation of the 14th Amendment;

would deny him the equal protection of the laws

in violation of the 14th Amendment, and would

violate Section 10 of Article 1 of the Constitu-

tion of the United States by impairing the obli-

gation of an existing contract of the Appellant,

Charles Young.

5. The New Jersey Court of Errors and

Appeals erred in affirming the judgment of the

New Jersey Supreme Court, and its action in

charging the jury, over the objection and excep-

tion of the Defendant, Charles Young, as

follows:

“As I understand it, it is not disputed

under the evidence submitted in this case

that the accident happened in the City of

New York and the State of New York, and,

therefore, under the rule of law I charge

you that the laws of the state where the acci-

dent happened control with respect to lia-

bility. Section 59 of the Motor Vehicle and

Traffic Act of New York, among other

things, provides that ‘Every owner of a

motor vehicle or motorcycle operated upon

a public highway shall be liable and re-

sponsible for death or injury to person or

property resulting from negligence in the

operation of such motor vehicle or motor-

cycle, in the business of such owner or

otherwise, by any person legally using or

operating the same, with the permission,

express or implied, of such owner.’

“So I charge you that it is immaterial

whether or not the operator, Michael

Balbino, was at the time of the accident

operating the automobile of the defendant,

Charles Young, on his own business or on

Young’s business. All that is necessary for

you to find is that the operator, Michael

Balbino, was at the time of the accident

operating this automobile with the defend-

ant’s permission, either express or implied.

This article or ordinance only relates to the

use of the automobile and not to the ques-

tion of negligence.

“If you find that the operator, Balbino,

was driving this automobile at the time of

the accident with the permission of the de-

fendant, either express or implied, you must

then determine the question of negligence

on the part of the operator, Balbino, and

the question of the contributory negligence

on the part of the plaintiff.

“If you find that the operator, Balbino,

was negligent and that such negligence was

the proximate and natural cause of the acci-

dent and injuries, and that the plaintiff was

free from contributory negligence, and also

find from the evidence—which may not be

disputed, but if it is that is for you to say—

that permission was given to use this car

and operate it, permission given by the de-

fendant to Balbino—and I think I also said

if you find that the plaintiff was not guilty

of contributory negligence—then you would

come to the question of the plaintiff’s dam-

ages in this case.

“The plaintiff would be entitled to re-

cover as against this defendant, first, such

sum as you believe to be fair and reasonable

for the bodily injuries sustained.”

EAD: PRT APES RG

and erred in deciding that Sec. 59, Ch. 54 of the

1929 Laws of New York as so applied to the

Appellant, Charles Young, in this case, was

valid and did not deprive him of liberty or

property without due process of Law, did not

deny him the equal protection of the Law, in

violation of the 14th Amendment to the Consti-

tution of the United States, and did not impair

the obligation of an existing contract of the

Appellant, Charles Young, in violation of Sec-

tion 10 of Article 1 of the Constitution of the

United States.

As to the parts of the Constitution invoked by

Appellant the assignments of errors, five in number,

(R. 95) challenge the judgment of the New

Jersey Court of Errors and Appeals in that the ap-

plication of the New York Statute to the appellant

Young, in this case, is repugnant to Section 10 of

Article I, and repugnant to the 14th Amendment of

the Federal Constitution.

The appellant Young contends, and contended

below:

I. That the application to him of the New York

Statute in this case, impaired the obligations of his

existing contract of bailment made by him with

Balbino in the State of New Jersey in the loaning of

the car, and by which contract, valid and lawful in

the State of New Jersey where made, he was by the

law of the state in which it was made, protected

against and exempted from the very liability for

Balbino’s negligence, which the Statute of New York

would place upon him, if applied to him. This is in

violation of Section 10, of Article I, of the Federal

Constitution.

‘

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“3

Lae REGS FAV ARIE NITRO aE 628 N 2 KORTE

II. The appellant Young contends that the ap-

plication of the New York Statute to him in this

case, deprives him of liberty without due process of

law, in that it deprives him of liberty to make and to

enjoy his immunity from liability under his contract

of bailment valid by the law of his domicile in the

state where it was made, and which by the law of that

state protects him against this particular liability

for the Bailee’s negligence.

III. The appellant Young contends that the ap-

plication of the New York Statute to him in this case

deprives him of property without due process of law,

in that it imposes a liability in personam upon him,

who was never in New York State, was never amen-

able to its laws, and in satisfaction of that personal

liability deprives him of property which was never in

the State of New York and never amenable to its

laws, in violation of the 14th Amendment.

IV. The appellant Young claims that the applica-

tion of the New York Statute to him in this case

denies him the equal protection of the laws of New

Jersey, which protects all citizens of New Jersey

from liability for the negligence of a bailee under a

contract of bailment made in the State of New Jersey.

“A decision of a state court applying and en-

forcing a state statute of general scope against a

particular transaction, as to which there was

a distinct and timely insistence that if so applied

the statute was void as in violation of the

Federal Constitution, necessarily affirms the

validity of the statute as so applied, and the

judgment is reviewable on writ of error under

paragraph 237 of the Judicial Code.”

Fiske v. Kansas, 274 U. S. 380.

Dahnke-Walker Milling Co. v. Bondurant,

257 U. S. 282.

POLE SEPT ARTE ae

use Ce a

ARGUMENT

THE APPLICATION OF THE NEW YORK

STATUTE TO YOUNG IN THIS CASE,

OFFENDS SEC. 10 OF ART. 1 OF

THE CONSTITUTION

“No State shall pass any law impairing the

obligation of Contracts.”

The word “pass,” may be synonymous with,

“create,” or “put into effect.”

The Point that the application of the New York

Statute to Young in this case “impairs the obligations

of contract” cannot be evaded by suggesting that the

Statute may have been enacted before Young made

his contract of bailment in New Jersey. The Statute

may have existed in New York, but it did not exist

in New Jersey, prior to Young’s contract. It was

the “application” of the New York Statute to Young

after the contract had been made, of which he com-

plains; the New York Statute had no operation in

the State of New Jersey at the time the contract of

bailment was made, no more than if it had not yet

been enacted in New York; it was the dragging of

the New York Statute over the state line into New

Jersey, and its application there to Young after his

contract was made, which violates the “contract”

clause of the Constitution; in other words, no Statute

of New York existed in or operated in New Jersey

when Young made his contract of bailment; the law

of New Jersey at once attached to that contract and

protected Young from liability for the bailee’s negli-

gence; it was the drawing of the New York Statute

over the state line after the contract was made, and

giving it its first operation in New Jersey after the

contract was, by its application to Young by the

EER Oy Kae RL Fay a

Courts of New Jersey, which impaired his contract:

and whether this was done by New York officials or

New Jersey officials or a combination of both, is im-

material; it is in any event the action of a State, which

has impaired the obligations of Young’s contract, in

violation of the clause of the Constitution. Neither

a single State, nor any combination of States, can

wipe out a constitutional right.

The appellant Young was not and had not been in

the State of New York; he had no knowledge of the

law of New York and was not chargeable with such

knowledge, because he was never within the jurisdic-

tion of the Statute’s operation; Young was no more

chargeable with knowledge of the law of New York,

than was the Court in New Jersey; the law of New

York had to be proved even to the Court by the

introduction of evidence. Balbino, the driver of the

car was not Young’s agent; was not engaged on any

of Young’s affairs, the automobile was not being

driven for Young, nor about his business; the loan

of the automobile was a valid contract of bailment

under which Young was protected from liability for

the negligence of Balbino by the Law of the State

where the contract of bailment was made.

“Qwner not in automobile, being driven by

another to whom he had loaned it to bring

latter’s wife and child from another city, at time

of collision, is not liable for injuries to occupant

of another car.” Gavin vs. Cohen, 136 Atl. 330.

See also, N. Y. L. E. and W. R. R. Co. vs.

N. J. Electric R. Co., 60 N. J. L. 338;

Doran vs. Thompson, 76, N. J. L. 754;

Maurer vs. Brown, 106 N. J. L. 284, 285.

The fundamental premise, inherent in the case is,

a contract of bailment is made, the bailee drives off

t 2 oi

SAE au PUPAE MEU iry WeSC

with the car; and the Law of the State of New Jersey

exempts and protects Young from liability for what

the bailee does with it.

Young engages in no further activity, does nothing

more; so that there is no act of his which can

deprive him of his protection and render him liable.

What is there then which can strike out his exemp-

tion from liability which the lex loci contractus

affords him, and impose liability upon him? Can

the laws of a sovereignty within whose territory he

never was, and under the operation of which he had

never come, change his status and impose a personal

liability upon him? It is not a question whether the

automobile itself could be forfeited under the Law of

New York for being in the State of New York,

although without the owner’s knowledge or consent;

perhaps it could be forfeited. The question is, whether

he who was never in New York, and whether other

property of his which was never in New York, are

amenable to the Laws of New York, which laws

never reached over either him personally, or over his

other property, for the reason that neither he nor it

was ever within the limits of their territorial opera-

tion.

The immunity from liability for the bailee’s negli-

gence, which under the Law of New Jersey Young

enjoyed, is unaffected by any act of his, for he did

no act which affected it after Balbino drove away

with the car; this immunity from that negligence

remains, and continues to exist, as matter of law,

unless it is obliterated and destroyed by the operation

in the State of New Jersey of a Statute of New York.

Can this be?

oe Marg atic SER METER ERM BEE ECAR IO HOR PE BD I EA ‘ , a

STATE STATUTES HAVE NO EXTRA

TERRITORIAL OPERATION

That the laws of a state or sovereignty have no

extra territorial operation is axiomatic.

“Legislation is presumptively territorial and

confined to limits over which the law-making

power has jurisdiction.” Sanford ws. Mc-

Donald, 248 U.S. 185 at 195. 63 L. Ed 200-204.

“The foregoing considerations would lead in

case of doubt to the construction of any statute

as intended to be confined in its operation and

effect to the territorial limits over which the law-

maker has general and legitimate power. All

legislation is prima facie territorial.” Ameri-

can Banana Co. vs. United Fruit Co., 213 U. S.

p. 347-357, 53 L. Ed. 832.

See also, Pennoyer vs. Neff, 95 U. S. p. 714,

24 L. Ed. 565.

Sie

Ses

ne]

It is not a question of the validity of the New York

‘ Statute within the limits of the State of New York, if

| applied to either persons or property within the

territorial limits of the State of New York; its valid-

ity with respect to such persons and such property

may be conceded. But the Court below declined to

so limit that statute’s operation; the trial court in-

structed the jury (R. 80) that the New York Statute

operated to render Young liable for the bailee’s

negligence, although Young had never been in the

State of New York either actually or constructively;

although he believed the bailee would not go into

New York; although the bailee Balbino was not

Young’s agent either by express appointment or by

implication; and that although Balbino was not

engaged upon Young’s business, yet Young was liable

in any event, merely because he was the owner of the

car.

see eal ONC

a aie

How could the Courts below have so decided

except by giving extra teritoria] Operation to the

New York Statute? The appellee Masci, seems to

have urged upon the Courts below, that the question

was one of “comity” between States; his idea seems

to have been, that the courts of one state will within

their own jurisdiction, give active, operative effect to

the statute of another state. Such a claim, is at least

an inadvertence; there is not and never was any such

rule of “comity” in the sense that a State statute could

extend over the state line and either deprive a non-

resident of an existing right in personam, or impose

a personal liability upon him. In support of this

claim below, were cited cases where statutory causes

of action for wrongful death, are enforced in the

courts of a state other than that in which the wrong-

ful death occurred; but in none of them was there

applied a statutory liability against one who had

never been in the State which enacted the Statute.

It is quite true, that the Courts of one state will

enforce a transitory cause of action arising in another

state; but this is enforcing an existing personal right

arising out of the “lex loci”; it is not giving extra-

territorial operation to a law, by applying it so as to

create a cause of action in another State.

The question of the power to extend the operation

of a state statute beyond the territorial limits of the

state is directly met and disposed of in N. Y. Life

Insurance Co. »v, Head, 234 U. S. 160, wherein the

Court said:

“* * * And this concession brings us to

consider the second general inquiry, which is the

power of the state of Missouri to extend the

Operation of its statutes beyond its borders into

the jurisdiction of other States, so as in such other

states to destroy or impair the right of persons

GRO EY NEN OTA EI Te EL TAR TT

not citizens of Missouri to contract, although the

contract could in no sense be operative in

Missouri, and although the contract was sanc-

tioned by the law of the state where made. That

is to say, the right of a state where a contract con-

cerning a particular subject-matter not in its

essence intrinsically and inherently local is once

made within its borders not merely to legislate

concerning acts done or agreements made within

the state in the future, concerning such original

contract, but to affect the parties to such original

contract with a perpetual contractual paralysis

following them outside of the jurisdiction of the

state or original contract by prohibiting them

from doing any act or making any agreement

concerning the original contract not in accord

with the law of the state where the contract was

originally made. In other words, concretely

speaking, we must consider the validity of the

loan agreement; that is, how far it was within

the power of the state of Missouri to extend its

authority into the state of New York, and there

forbid the parties, one of whom was a citizen of

New Mexico and the other a citizen of New

York, from making such loan agreement in New

York simply because it modified a contract

originally made in Missouri. Such ques ion, we

think, admits of but one answer, since it would

be impossible to permit the statutes of Missouri

to operate beyond the jurisdiction of that state

and in the state of New York, and there destroy

freedom of contract without throwing down the

constitutional barriers by which all the states are

restricted within the orbits of their lawful

authority, and upon the preservation of which

the government under the Constitution depends.

This is so obviously the necessary result of the

Constitution that it has rarely been called in

question, and hence authorities directly dealing

with it do not abound.” 234 U. S. 161, 58 L. Ed.

1264.

OSA, ARES ETD

The Court further said :-—

“It is illustrated as regards the right to free-

dom of contract by the ruling in Allgeyer v.

Louisiana, 165 U. S. 578, 41 L. Ed. 832, 17 Sup.

Ct. Rep. 427, and it finds expression in the

decisions of this court affirmatively establishing

that a state may not, consistently with due

process Clause of the 14th Amendment, extend

its authority beyond its legitimate jurisdiction

either by way of the wrongful exertion of

judicial power or the unwarranted exercise of

the taxing power.” 234 U. §S. 162, 58 L. Ed.

1264.

“A state statute authorizing an assessment to

be levied upon property for a local improve-

ment, and imposing upon the lot owner who is a

non-resident of the state, a personal liability to

pay such assessment, is a statute which the state

has no power to enact, as to enforce such per-

sonal liability would be a taking of property

without due process of law and a violation of

the Federal Constitution.” C. P. Dewey v. City

of Des Moines, 173 U. S. 193, 43 L. Ed. 665.

In discussing the sovereign powers of States, and

the principles of public jaw which snstain them, the

Court said :—

“One of these principles is, that every State

possesses exclusive jurisdiction and sovereignty

Over persons and property within its territory.

As a consequence, every State has the power to

determine for itself the civil status and capacities

of its inhabitants; to prescribe the subjects upon

which they may contract, the forms and

solemnities with which their contracts shall be

executed, the rights and obligations arising from

them, and the mode in which their validity shall

be determined and their obligations enforced ;

and also to regulate the manner and conditions

ee eee 2 ee ee ee

upon which property situated within such terri-

tory, both personal and real, may be acquired,

enjoyed and transferred. The other principle of

public law referred to follows from the one

mentioned; that is, that no State can exercise

direct jurisdiction and authority over persons or

property without its territory. Story Confl. L.,

ch. 2; Wheat Int. L., pt. 2, ch. 2. The several

States are of equal dignity and authority, and the

independence of one implies the exclusion of

power from all others. And so it is laid down

by jurists, as an elementary principle, that the

laws of one State have no operation outside of its

territory, except so far as is allowed by comity;

and that no tribunal established by it can extend

its process beyond that territory so as to subject

either persons or property to its decisions. ‘Any

exertion of authority of this sort beyond this

limit, says Story, ‘is a mere nullity, and in-

capable of binding such persons or property in

any other tribunals.’ Story, Confl. L., sec. 539.

Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 568-

569.

Actions in tort are in their nature transitory; in

transitory actions liability may be enforced wherever

the person against whom liability exists can be

found; but “comity” can never impose liability upon

one against whom by the law of his situs no liability

exists; and in this case, no liability for Balbino’s

negligence rested upon the appellant Young under

the Law of New Jersey, and no liability for that

negligence could exist without giving to the New

York Statute the effect of reaching over into the

State of New Jersey and imposing upon Young the

very liability from which he was protected by the

law of the state in which all his actions were per-

formed and his contract made. To enforce outside of

the State of New York a cause of action against one

who was within the State of New York at the time

of the occurrence, and therefore amenable to the

Laws of New York is one thing; to carry the Law of

New York over into the State of New Jersey and

there impose upon one who was never in the State of

New York and never amenable to its laws, a liability

which the Law of New Jersey exempted him from,

is quite another thing. There is no question in this

case about whether Young expressly or impliedly

consented to the operation of the Laws of New York

over him personally by knowingly sending his auto-

mobile into that state; the trial court in its charge to

the jury left Young no opening for escape upon this

ground, for it charged the jury (R. 80) that

Young was liable for the negligence of Balbino the

bailee, if only, Young loaned his car to Balbino quite

independent of where Balbino drove it, or intended to

drive it; under the charge of the trial court Young

was liable although Balbino had borrowed the car

merely to drive it around the corner, under an express

agreement with Young that he would not drive it

into the State of New York

THE APPLICATION OF THE NEW YORK

STATUTE TO THIS CASE OFFENDS

THE 14TH AMENDMENT

“Nor shall any state deprive any person of life,

liberty or property without due process of law.”

The application of the New York Statute to

Young in the State of New Jersey, deprives him of

“liberty” to make in New Jersey, the State of his

domicile, and to enjoy, a contract of bailment which

is protected by the Law of that State, and under

which contract the lex loci contractus protects him

from liability for the negligence of the bailee; this

op eT

PLP SOLA PLEA LP SR ELE MOY

“liberty” to make and to enjoy contracts is protected

by the 14th Amendment.

“The liberty mentioned in that amendment

means, not only the right of the citizen to be free

from the mere physical restraint of his person,

as by incarceration, but the term is deemed to

embrace the right of the citizen to be free in the

enjoyment of all his faculties; to be free to use

them in all lawful ways; to live and work where

he will; to earn his livelihood by any lawful

calling; to pursue any livelihood or avocation,

and for that purpose to enter into all contracts

which may be proper, necessary, and essential

to his carrying out toa successful conclusion the

purpose above mentioned.” Allgeyer v. State of

Louisiana 165 U. S. 589, 41 L. Ed. 835.

In Adair v. United States 208 U. S. 161, the valid-

ity of an Act of Congress was brought in question;

that Act undertook to make it a crime for an officer of

an interstate carrier to discharge an employee from

service simply because of his membership in a labor

organization; in determining whether the Act of

Congress was repugnant to the 5th Amendment of

the Constitution, the Court in referring to the section

of the Act in question said:

“In our opinion that section, in the par-

ticular mentioned, is an invasion of the personal

liberty, as well as of the right of property, guar-

anteed by that Amendment. Such liberty and

right embrace the right to make contracts for the

purchase of the labor of others, and equally the

right to make contracts for the sale of one’s own

labor;” Adair v. United States, 208 U. S. 172,

52 L. Ed. 441.

In the Adair case the Court concluded that the

Act of Congress in question was repugnant to the

A ope

HA 9 OD IME RSS EASY TIE AI

“due process” clause of the 5th Amendment. The

phraseology of the “due process” clause of both the

Sth and 14th Amendments is identical; and as to the

identity of the meaning of the “due process” clause

in both Amendments, there can be no doubt; the Sth

Amendment being a limitation upon the power of the

United States, and the 14th Amendment upon the

power of the States.

“The restraint imposed upon legislation by

the due process clauses of the Sth and 14th

Amendments is the same.” Heiner v. Donnan,

et al. 225 U. S. 312, 76 L. Ed. 772.

In Coppage v. Kansas, 236 U. S. 1, the principles

announced in the Adair case were approved, reaf-

firmed, and applied to a similar Statute enacted by

the State of Kansas; the state statute was held repug-

nant to the “due process” clause of the 14th Amend-

ment. In each the Adair and the Coppage case, the

Court held that the restriction of the “liberty of

contract” undertaken to be imposed by the statute

in question, was repugnant to the “due process”

clause of the Sth and 14th Amendments respectively.

In Coppage v. Kansas the Court said :—

“Included in the right of personal liberty and

the right of private Property—partaking of the

nature of each—is the right to make contracts

for the acquisition of Property. Chief among

such contracts is that of personal employment,

by which labor and other services are exchanged

for money or other forms of property. If this

right be struck down or arbitrarily interfered

with, there is a substantial impairment of liberty

in the long-established constitutional sense.”

236 U. S. 14, 59 L. Ed. 446.

“Competent persons Ordinarily have the

utmost liberty of contracting, and their agree-

PCy Tae ome Tee el ne oy TR RTT tae

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Pibiedaisiemimio ions:

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ments voluntarily and fairly made will be held

valid, and enforced in the courts.”

Twin City Pipe Line Co. & Ind. Oil & Gas

Co. v. Harding Glass Co. 283 U. S. 353,

75 L. Ed. 1112.

“While this court has not attempted to define

with exactness the liberty thus guaranteed, the

term has received much consideration, and some

of the included things have been definitely stated.

Without doubt, it denotes not merely freedom

from bodily restraint, but also the right of the

individual to contract, to engage in any of the

common occupations of life, to acquire useful

knowledge, to marry, establish a home and bring

up children, to worship God according to the

dictates of his own conscience, and, generally,

to enjoy those privileges long recognized at

common law as essential to the orderly pursuit

of happiness by free men.”

Meyer : Nebraska, 262 U. S. 399, 67 L. Ed.,

1045.

“The right of employer and employee to con-

tract with respect to wages is part of the liberty

protected by the 14th Amendment to the Federal

Constitution.”

Charles Wolff Packing Co. v. Court of Indus-

trial Relations of the State of Kansas, 262

U. S. 522, 67 L. Ed. 1103.

“The extra territorial operation given to the

statute also takes Young’s property without due

process of law in violation of that amendment

under the reasoning of the opinion in N. Y. L.

Ins Co. v. Head, 234 U. S. 160, above quoted.

Owing to the fact that New York cannot give

its statute any extra territorial operation, that

statute, as applied in this case, amounts to an im-

position of liability which the State was without

power to impose. It is to that extent as much a

taking of property without due process of law in

violation of the Fourteenth Amendment as was

the attempted extra territorial tax referred to in

Frick v. Pennsylvania, 268 U. S. 473.”

To become amenable to constructive service under

the New York statute providing for service on the

Secretary of State in actions against nonresident auto-

mobile owners, the nonresident must either be oper-

ating the automobile personally, or the operation

thereof must be through an agent or employee of

such nonresident acting within the scope of his em-

ployment, and the operation of the statute does not

extend to a person not associated with the nonresident

owner by agency, but who is merely operating the

automobile with the knowledge and consent of the

owner. Zurich General Acci. & Liability Ins. Co. »v.

Brooklyn & Q. Transit Corp., 241 N. Y. Supp. 465.

And under this statute providing that in an action

by a nonresident “growing out of any accident or

collision in which such nonresident may be involved

while operating a motor vehicle,” summons may be

served by leaving a copy with the Secretary of State,

has no application to an accident which occurs while

the car in question was being driven by a repair man,

who had undertaken to locate trouble in the car, and

who was not accompanied by the owner. O’Tier v.

Sell, 252 N. Y. 400.

And a similar statute has been held to apply to the

one actually operating the car, but not to the em-

ployer of one who had charge at the time when an

accident occurred. Morrow v, Asher (esc. i. «.)

55 F. (2d) 365.

20%

REM THA SON OEP BIE: ——

DENIAL OF EQUAL PROTECTION

OF THE LAW

The State of New Jersey, through its Courts, in

this case, denied the appellant Young the “equal pro-

tection of the law” of New Jersey guaranteed by the

14th Amendment. Everyone who makes in New

Jersey a contract of bailment such as that at Bar, is

protected by the law of New Jersey, from liability

for negligence of the Bailee. But in this case, the

courts of New Jersey denied Young this “equal pro-

tection,” by imposing upon him the extra-territorial

operation of a New York statute, which when so

imposed upon him, denied him the operation and

protection of the law of New Jersey. In order to

violate the 14th Amendment it is not necessary that

the act of the State should be through its legislative

body in the form of a statute; the act of any person

or authority vested with state power, is sufficient.

“The 14th Article of Amendment of the Con-

stitution of the United States, after other pro-

visions which do not touch this case, ordains ‘nor

shall any state deprive any person of life, liberty

or property without due process of law, nor deny

to any person within its jurisdiction the equal

protection of the laws.’ These prohibitions ex-

tend to all acts of the state, whether through its

legislative, its executive or its judicial authori-

ties.” Scott v. McNeal, 154 U. S. 45, 38 L. Ed.

901.

In Carter v. Texas, 177 U. S. 442, 44 L. Ed. 839, a

negro claimed that in a criminal trial in the state

court he had been denied the equal protection of the

laws in that the Jury Commissioners had deliberately

excluded from the grand jury which found the in-

VET H LE POEM AR

We HP LAPP N AM AIR Ve EBS GIS OUT! al AR iw PENN s . GAVy a

dictment, all persons of the African race; a motion

to quash the indictment was made upon this ground,

and the truth of the allegations were offered to be

proven; but the Court declined to hear any evidence

upon the point, and Carter was tried and convicted.

The Supreme Court of the United States reversed

Leib eisai ee SE oar it LT " .

the conviction upon the ground that the action of the

trial court in declining to hear evidence in support of

the charge and to quash the indictment if the charge

q was proven, denied Carter the equal protection of the

' law,

3 “The exclusion of all persons of the African

& race from a grand jury which finds an indictment

‘ against a negro in a state court, when they are

¢ excluded solely because of their race or color,

§ denies him the equal protection of the !aws in

2 violation of U. S. Const. 14th Amend., whether

such exclusion is done through the action of the

legislature, through the courts, or through the

executive or administrative officers of the state.”

Carter v. State of Texas, 177 U. S. 839, 44 L. Ed.

442.

“The prohibitions and guaranties of U. S.

Const., 14th Amend., are addressed to, and con-

trol, not only the states, but also every person,

whether natural or juridical, who is the reposi-

tory of state power.” Home Telephone & Tele-

graph Co. v. City of Los Angeles, et al. 227 U.S.

278, 57 L. Ed. 510.

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