Charles F. Welsh

ATTORNEYS

AT LAW

Max Kahn

REFERENCES:-Dime

covered by the examination, but merely report their findings, together with their recommendations, to the central office at Washington. The inspectors are also required to give the taxpayer a copy of their findings of fact or a synopsis thereof-in order that he shall be apprised of the amount of additional which may result from the examination. The inspectors' statement forms the basis of any action which may be taken by the taxpayer. So far as the findings concern the accuracy of the accounts it is a matter for the accountant. But more frequently the proposed additional assessment is based on construction of the provisions of law and falls within the province of the lawyer.

Contrary to impression of many taxpayers the findings of the inspectors are not conclusive either as to facts or as to law. Whether or not they will carry any weight in the final decision by the Commissioner depends entirely on the soundness of the position taken by the inspectors-and the ability of the taxpayer or his counself to show the true facts and the proper applicaton of the law. The inspector's position is analogous to that of an advocate; the commissioner's that of a judge.

The practice is to file a protest against any assessment on the basis of the inspector's finding until the taxpayer has had opportunity to submit an answer. The answer may be submitted in writing to the Commission, or a hearing may be arranged at Washington at which the taxpayer may appear and supplement his written answer by oral argument. The case is heard and decided in the first instance by one or more of the Commissioner's large staff of subordinates. From their decision an appeal lies to the Board of Review-a committee of three within the Department and from them to the Commissioner personally, although this final appeal is seldom taken and a decision by the Board of Reviews is to all intents and purposes a decision by the Commissioner.

The accountant's work lies in the province of figures. His is the duty of marshalling the items of income and outgo; of arranging the totals in the conventional groups which we know as balance sheets, profit and loss statements, and the like. In perfoming that duty he is necessarily called on to exercise judgment and sound discretion, for the preparation of an account is not

nearest agent-in-charge. The inspectors are not authorized to settle, increase, or reduce the amount of the assessment for the year or years mere routine action. But outside the scope of his work lies a large field that only the lawyer's work can cover. It concerns the meaning of the statute, the intent of Congress, in prescribing what shall be included and excluded in the computation of net income; it concerns the methods which shall be followed by the taxpayer in order to protect his rights and his interests, and it involves the care and responsibility of determining that the client assumes his just burden of taxation and no more. Time may come when the tax will be so simplified and well understood that the taxpayer can discharge his duty under the income tax laws without assistance, but for a long time yet the lawyer's aid will be necessary and valuable to the clent-an important and integral part of the professional service rendered by the one and received by the other.

-Ohio Law Review.

Honolulu Fights Gambling With Advertising. Advertising has found a new field in Honolulu. Paid publicity has been recruited as an aid to the foes of lawlessness. Judge William H. Heen, who recently took office as city and county attorney is buying space in the local dailies to further his campaign against gamblng.

The following classified advertisement has appeared:

"Wanted-Any information against professional gamblers, owners of gambling joints and che-fa bankers. Such information will be treated confidentially and, if reliable will be paid for.

* * *

COMING TO HERSELF.

On one occasion Dr. Francis Warner, who is retiring from the position of senior physician at the London Hospital, was trying to bring back to complete consciousness a woman who had had a paralytic stroke.

His efforts seemed likely to be in vain. For a long time her utterances were only the raving of delirium, but all at once she sat up in bed, and, looking straight at Dr. Warner, she cried out: "Oh, you funny old man!"

"Ah!" said Dr. Warner, cheerfully. "Now she's beginning to talk sense!"

The rapid approach of the airplane as an instrumentality of commerce presents the occasion for defining more precisely the doctrine of the ownership of the air space, as embodied in Coke's maxim, cujus est solum, ejus usque ad coelum. Examining first the cases which involve interference with the column of air by encroachments from adjoining lands, we find that not only is the subjacent landowner permitted to cut away as nuisances overhanging shrubbery and projecting corners, but in some states he may resort to an action in ejectment. That the encroaching landowner is liable also for all forseeable damage is settled; but whether there is cause of action for the mere entry into the air space resulting in no real injury is not so clear. In England there are, in addition to conflicting dicta on the exact case of a balloon, irreconcilable statements concerning the encroachment In this country, however, actual damage from the encroachment does not seem to be requisite for a cause of action. The air space, at least near the ground, is almost as inviolable as the soil itself.

cases.

On the reasoning of these cases, the aviator would be held a wrongdoer and, therefore, would be liable for all foreseeable damage to the land. This financial responsibility for all the natural consequences of the flight over the land, regardless of the care exercised, may prove so great a burden that it will retard considerably the flow of capital into the airplane service and hamper materially its development. Yet states adopting the doctrine of absolute liability in the conduct of dangerous undertakings might impose that burden at any rate on the aviator. Massachusetts, however, has already provided against such a difficulty by enacting that there be liability only for failure to take every reasonable precaution; and the statute is probably constitutional.

The consequences of the trespass, other than liability for actual damage, need concern the aviator but little. A litigious owner will find it expensive seeking nominal damages, especially where statutes make costs at law discretionary. Further, he will be an ingenious land-owner who can keep the trespassing airplane off without seriously endangering the aviator's life; whatever means he employs will be far from reasonable. Then, too, there will be practically no basis for an injunction to prevent the repeated trespasses, since the sum total of the damage would be nominal and the danger of an easement's arising the slightest, when we consider the difficulty of establishing twenty years' adverse user of a particular lane at a fixed height as well as within a certain width.

If we rigorously apply Coke's maxim, the re

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sult is that the law will frown upon the aviator, but unless he causes actual damage it wil connive at the formal wrong. This branding of the inoffensive aviator as a tort feaser, even if only in form, may be an embarrassing annoyance to one who acclaims the elasticity of the common law. Fortunately there are no binding decisions which stamp the aviator as a trespasser; and of the cases adopting Coke's maxim unqualifiedly it may be said that the particular situation of a passage by an airplane was not considered. They have, then, only an inferential bearing on our problem, so that the courts may feel free to invoke general principles and practical considerations in balancing the interest of the aviator in the unrestrained development of a beneficial enterprise and tha tof the landowner in the free use of his superincumbent air space.

During the past decade foresighted lawyers have been discussing the problem, and several have ventured a theory upon which the balance should be struck. It has been suggested that although, according to the maxim, the landowner does own the air space up to the heavens, there is also a right of public passage, as long as the enjoyment of the landowner is not interrupted: a situation similar to the right of passage over navigable rivers privately owned. The similarity, however, is slightly incomplete, for on rivers it is the navigator who is not to be interferred with by the bed-owner; here, the owner is to be left undisturbed.

Another theory construes Coke's maxim as securing to the landowner only a right of user, and maintains that the aviator is within the circle of lawabiding citizens, until he causes actual damage. This doctrine, however, imposes absolute liability for any interference with the landowner's use.

A third doctrine asserts that "the scope of possible trespass is limited by that of effective possession," just as possession is at the basis of proprietary rights in land, so is it the basis of any proprietary right in the air space. The passage at a high altitude is, then, not a trespass. But there is liability for all interferences with the air effectively possessed.

Although the flight of an airplane will very likely not be held a tort, the common law seems to afford no basis for holding the aviator liable only for negligence. If the burden of absolute liability for injuries to the land tends to check the growth of the airplane industry, we must look to the legislatures for relief. It is to be observed, however, that a duty of due care under the circumstances surrounding travel by airplane is practically as burdensome as absolute liability. -Harvard Law Review.

Important to Corporations

Your attention is called to the importance of following the requirements of the statutes of other States than your own where these statutes have, as in many cases, made requirements upon "foreign" corporations, and affixed penalties for failure to comply therewith. In many cases, statutes recite that where the requirements of the law are not strictly followed "foreign" or outside corporations shall not have the privilege of enforcing contracts in the local courts. Many corporations doing business beyond the limit of their own State are negligent in this matter, and frequently find themselves unable to maintain their rights because of their failure to take the steps necessary. The publishers of this magazine have printed below a list of Attorneys, one for each State, residing in an important business center, who are unquestionably competent to see that your papers conform to the requirements of the law, attend to having them properly filed, and obtain your certificate. Where it is required that you shall have an office in the State, we would suggest the you make arrangements with the attorneys named to designate their ofce 88 your particular place or office of business in the States named, and make arrangements with them that they or some member of their firm may be named as the person upon whom process may be served. Make arrangements with them for an annual fee for attending to this service, which ought not to be less than $10. nor more than $25 per annum. Neglect in attending to this matter may deprive you of the right to do business in some desirable territory or to bring suit in some important matter. These attorneys would then inform you what it is necessary that you do. and whether or not the provisions of the law refer to within corporations who sell the State by means of traveling salesmen, while having no branch or factory or other business office in the State.

IOWA-B. J. Cavanagh, Fleming Bldg., Des Moines.

LOUISIANA-Lawrence M. Janin, 837 Maison Blanche Bldg., New Orleans. MAINE-Harry L. Cram, 102 Exchange St., Portland.

MICHIGAN-Selling & Brand, 502-3-4-5-67-8-9-10 Hammond Building, Detroit. MISSISSIPPI-R. H. & J. H. Thompson, Thompson Building, Jackson.

NEW YORK-Lester T. Hubbard, 227 Arkay Bldg., State and Pearl Sts., Albany. NORTH DAKOTA-M. J. George, First National Bank Bldg., Ashley.

OHIO Miller, Thompson, Dunbar & Martin, 310 Columbus Savings & Trust Bldg., Columbus.

PENNSYLVANIA-Conard, Middleton & Orr, Lincoln Building, Philadelphia.

In the recent case of International News Service vs. Associated Press (U. S. Sup. Ct. Dec. 23. 1918), suit was brought by the Associated Press to restrain the defendant from its systematic appropriation of complainant's news, first, by bribing employes; second, by inducing Associated Press members to violate its by-laws and permit defendant to obtain news from publication; and third, by copying news from bulletin boards and from early editions of complainant's members' newspaper and selling this, bodily or after rewriting it, to defendant's customers. The question as to the right of complainant to relief against the third of these methods was the principal question in the case.

The District Court granted a preliminary injunction against the first two practices but, although satisfied that defendant's acts were wrongful, refused relief against the third, because the legal question was one of first impression and the court preferred to await the outcome of the appeal.

The Circuit Court of Appeals remanded the cause with directions to issue an injunction

against the bodily taking of the words or substance of complainant's news until its commercial value as news had passed away. Upon certiorari to the Supreme Court the decree was affirmed.

The court based its decision squarely upon unfair competition in business and refused to waste any time over the question as to whether there was a violation of any common law property right in news matter and whether this was lost or still remained after publication by reason of the copyright act. The words of Mr. Justice Pitney, who delivered the opinion of the court, are particularly instructive:

"The right (he said) of another of the purchaser of a single newspaper to spread knowledge of its contents gratuitously, for any legitimate purpose not unreasonably interfering with complainant's right to make merchandise of it, may be admitted; but to transmit that news for commercial use, in competition with complainant-which is what defendant has done and seeks to justify-is a very different matter. In doing this, defendant, by its very act, admits that it is taking material that has been acquired by complainant as the result of organization and the expenditure of labor, skill, and money, and which is salable by complainant for money. and that defendant, in appropriating it and selling it as its own, is endeavoring to reap where it has not sown, and by disposing of its to newspapers that are competitors of complainant's members is appropriating to itself the harvest of those who have sown. Stripped of all disguises, the process amounts to an unauthorized interference with the normal operation of complainant's legitimate business precisely at the point where the profit is to be

reaped, in order to divert a material portion of the profit from those who have earned it to those who have not; with special advantage to defendant in the competition because of the fact that it is not burdened with any part of the expense of gathering the news. The transaction speaks for itself, and a court of equity ought not to hesitate long in characterizing it as unfair competition in business."

"Regarding news matter as the mere material from which these two competing parties are endeavoring to make money, and treating it, therefore, as quasi-property for the purposes of their business because they are both selling it as such. defendant's conduct differs from the ordinary case of unfair competition in trade principally in this that, instead of selling its own goods as those of complainant, it substitutes misappropriation in the place of misrepresentation, and sells complainants' goods as its own."

This case shows the adaptability of the courts to meet new conditions and reveals the elasticity of the term "unfair competition." The subject matter was news-obviously mere news is not property, and it has been held that news as such is not copyrightable (1). Books containing information can be protected under the copyright statute, but the information itself, as distinguished from the literary form in which it is cast, is not protectible under the copyright acts (2). While common rights before publication are perhaps bsoader than rights after publication (3), which are created by statute, still news, to be of value for newspaper purposes, must be published, and if published without copyright, the common law right terminates and, as previously pointed out, the copyright statutes do not embrace such things. There was much discussion in early quotation cases on this point (4), but the consensus was that rules of law which had grown up concerning literary property and copyright could not be expanded to reach and protect news as such. The principles governing unfair trade, as that term is commonly understood, seemed inadequate. Unfair trade was perilously close to being crystallized and limited to mere passing off. The term "unfair trade" by common consent seemed to be regarded as an outgrowth or expansion of trademark infringement. The unfair trader of early days usually contented himself with pirating trade-marks and trade names. The courts, after some hesitancy, made this sort of piracy unprofitable by stopping it. Then the trade parasite, by various unscrupulous and ingenious contrivances, sought to steal his successful rival's business by wavs other than infringing his trade-mark, by the imitation of packages, by the deceptive use of personal or descriptive or geographical names, by the simulation of labels, and in the countless

PENSACOLA, FLORIDA H. J. MACKEY, Attorney

REMITTANCES on collections made daily.

REPORTS: Mercantile and individual reports made from investigations after receipt of inquiry.