Humpty Dumpty's Rule in Law
I
‘WHEN I use a word,’ said Humpty Dumpty, ‘it means just what I choose it to mean — neither more nor less.’
But Alice objected, ‘The question is whether you can make words mean so many different things.'
And Humpty Dumpty airily replied, ‘The question is which is to be master, that’s all.’
We are not living in Wonderland, as we have reason to know every time we come to grips with actualities; and yet in this very real world what Humpty Dumpty said is true — words mean what their masters say they mean. And the masters are the courts of last resort, the Supreme Court of the United States and the appellate courts of the various states. This statement a study of their decisions will speedily confirm; and it will at the same time show what a myth is that certainty of the law which laymen are assured exists.
To begin with the highest court in the land, it held many years ago that the expression ‘high seas’ includes the Great Lakes, though the question arose in connection with the interpretation of a statute written originally by a Congressman who later became a judge, and who as a judge had declared that the Great Lakes were not included. A dictionary in common use even now, in defining the words ‘high seas,’ uses the Great Lakes as an example of what the words do not cover; and to ordinary folks the dictionary definition for ‘high seas ’ as the open ocean seems still to be good.
But would it occur to you that a fence is a building? A New York court said it was. And the highest court of Massachusetts has held a tent to be a building. A railroad car is a building in Nebraska, but not in Arkansas. A corncrib is also a building in Iowa, but not in Florida — perhaps because they raise corn in the former state and not in the latter. At any rate the Florida Supreme Court argued, ‘We have been unable to find this word “corncrib” in Worcester’s Dictionary; and it is not necessarily a building, a ship or a vessel. . . . “ Crib ” has various meanings, as the manger of a stable, a bin, a frame for a child’s bed, a small habitation, and it is used in the latter sense by Shakespeare. Nowhere else do we find it used in the sense of a building.’ That was in the year of the Lord 1882, and as a consequence of the court’s conclusions a defendant who had been convicted of burglary went free.
On the other hand, a Texas court, in order to sustain a conviction of burglary, held that an office in one corner of a hardware store, made of pickets about four feet high, three inches apart, with a plank on top used as a shelf, was a building, though it is clear that it was nothing more or less than a corner fenced off within a building. By the same reasoning the part of a courtroom railed off from the public is a building.
A jackass is a horse. The Tennessee Supreme Court settled that many years ago. And, according to the Illinois Supreme Court, asses are cattle. So are goats under a ruling of the North Carolina Supreme Court. The latter court cited in support of its conclusions the well-known case of Laban and Jacob.
Snakes are ‘implements, instruments, and tools of trade,’ at least when Uncle Sam is collecting his revenues. For the same purpose a new metal called ‘bouchan,’ used in watches, is a jewel. In Georgia a minor who has a separate estate is an orphan. In Pennsylvania a bicycle is an animal, and in the Federal courts it is also a business vehicle.
II
Chinamen in California were formerly held to be Indians, which disqualified them as witnesses against white folks and made it possible for good white men to rob and assault them with impunity. A Chinese merchant sent to the penitentiary is no longer a merchant, but a laborer, so that the exclusion acts may be applied to him. For the same purpose a gambler is a laborer. According to a very recent decision, however, an air pilot is not a laborer.
In New York, under the sanitary code, candies are vegetables; and in Georgia a watermelon is both a fruit and a vegetable. Pipes, tobacco, cigars, and newspapers are not ‘articles of comfort’ for a poor husband, but mere luxuries. So says the Alabama Supreme Court, which might be expected to have a deeper sympathy for the downtrodden male. In Massachusetts a college education is not a necessary under present-day conditions, according to a decision rendered last year.
In Michigan a dentist is a mechanic. In Mississippi he is not a mechanic. And in North Carolina he is not a physician, within a statute allowing the sale of liquor on the certificate of a physician. Otherwise, says the court, ‘ toothache would be more welcome and more prevalent than snake bite.’
A gelding is not a horse. At least both the Montana and the Kansas Supreme Courts have held that, where an indictment charges a defendant with having stolen a gelding, his conviction cannot be sustained if the evidence merely shows that he stole a horse. And a charge of stealing a hog cannot be supported by testimony of the stealing of a dead hog. In other words, a dead hog is not a hog. We have the word of the Supreme Court of Virginia for that.
A question that often arises in connection with certain crimes is the meaning of the term ‘daylight,’ or ‘daytime.’ This is also an important matter in connection with the service of search warrants. In such a case decided in 1923, it was held by a Federal court that a search warrant providing for a search in daytime only was no justification for a search made at 5.15 P. M. on December 22. In another case decided in 1927, however, it was decided that thirty-eight minutes after sunset was ‘daytime’ in Georgia. The test applied was the so-called burglary test, which is whether there is sufficient light from the sun to recognize a man’s features. Judge Sibley said in that case: ‘Daytime does not in law or by common understanding begin at sunrise, and end at sunset, but includes dawn at one end and twilight at the other.’
But in 1929, in a case involving a search under a daytime warrant, Judge Norton, another Federal district judge, reached a conclusion directly contrary to that of Judge Sibley. Judge Norton said: ‘“Daytime” in this statute is used in its ordinary meaning at the present time. . . . What seems to me to be the correct rule is stated in Murray’s Dictionary, where “day” is defined as “ in ordinary usage including the lighter part of morning and evening twilight, but, when strictly used, limited to the time when the sun is above the horizon.” This rule has great practical advantages. . . . Sunrise and sunset will make a much better working rule than the vague and shadowy boundaries adopted for humanitarian reasons in defining burglary.’
So there you are. Which is right? I confess that I do not know.
Is an airplane a ‘self-propelled vehicle’? A Federal district court held it was and convicted a defendant of the crime of having transported a ‘selfpropelled vehicle,’ which had been stolen, from one state to another, where the facts showed that he had flown a stolen plane across the state line. But the United States Supreme Court held only a few months ago that the district judge was mistaken — that an airplane is not ‘a self-propelled vehicle.’
In Missouri a pistol so defective that it could not be discharged even if it were loaded is a firearm. In New York it is not.
Nowhere is it more evident that the prejudices and predilections of the courts determine the meaning of words than in the decisions interpreting Sunday laws, particularly with reference to baseball. Thus, the Supreme Court of Kansas has held that baseball is not a game under a statute forbidding ‘games of any kind.’ The Missouri Supreme Court has laid down a similar rule, saying that baseball is a sport. But the Nebraska Supreme Court has held baseball to be a game within a statute forbidding ‘sporting’ on Sunday. The New Mexico Supreme Court, on the contrary, has held that baseball is neither a sport nor labor. But it is labor in Virginia, at least when played by professional players, though no admission is charged. In Tennessee it is not the exercise of ‘any common avocation of life’; and in Oklahoma it is a public sport and banned if played by professionals, but a private sport and not within the statute when played by amateurs.
III
Turning away from the criminal law for a moment, let us take a look at the exemption laws and the laws of estates. How would you define the words ‘household effects’? In Vermont it was held some years ago that they did not include a piano. In Michigan there has been a similar holding; but in Missouri, Oklahoma, and Texas the term ‘household effects’ has been held to include a piano. In New York it has recently been held that ‘household effects’ included two automobiles, a riding horse, and a speedboat; and an earlier New York decision was to the effect that wines in a well-stocked cellar were ‘household goods.’ It may be interesting in this connection to note that the Iowa Supreme Court held in 1929 that a radio had ‘no likeness or kindred relationship with a musical instrument.’
Another word that has puzzled the courts from time to time and led to conflicting rulings is the word ‘accident.’ According to a Pennsylvania court, the bite of a dog is an accident. So is being shot by an assailant or robber; and so was the shooting of a husband by his wife, when, following a quarrel, the husband approached the house, swearing and carrying an axe, and the wife took a pistol and killed him. The latter holding was made to enable the wife to recover on an insurance policy containing a provision that there could be no recovery by the beneficiary if the insured met his death at her hands other than by accident.
Suicide in a fit of delirium or insanity is an accident; but electrocution following a conviction of murder is not an accident according to a decision of the United States Circuit Court of Appeals handed down last June. However, death by lynching is an accident in the opinion of the Kentucky Supreme Court, whatever it may appear to the victim.
‘Colored person’ in Virginia means one having one fourth or more of Negro blood. In North Carolina, on the other hand, it means a person having Negro blood of any degree. In Oklahoma it is held to mean Negro so clearly that a white person charged with being colored can maintain an action for libel. But in Mississippi it has been held that the term ‘colored races’ includes all races except white. The Court of Appeals of the District of Columbia, on the other hand, held in 1910 that ‘colored’ referred only to persons of the Negro race, and that, regardless of the slight amount of Negro blood that might be in their veins, — the determining factors being ‘physical touches, whether of shade, hair, or physiognomy,’ — they were ‘colored’ if there was the least admixture of Negro blood.
The word ‘collision’ is another that has demanded a great deal of attention on the part of the courts, and their conclusions as to its application have been varied and conflicting as usual. The Michigan Supreme Court, for instance, held in 1920 that ‘an object coming from above’ might be considered as constituting a collision, the object in that case being the shovel of a steam shovel that fell upon a loading motor truck. The Texas Court of Civil Appeals, on the contrary, decided in a somewhat similar case that an object falling from above could not be considered as constituting a collision, the object being the upper floor of a garage that gave way and crushed a car standing on the floor below.
In New Jersey a recovery on an insurance policy on the ground of a collision was allowed where the car went through the guard rail of a bridge and was damaged by falling to the ground below. Where a car was backed into an open elevator shaft and fell to the floor below it was held to be a collision by the Pennsylvania Superior Court. But in Wisconsin it has been held that where a car ran off the road, and down an embankment into a river, the facts did not justify recovery as for a collision. In Missouri, on the other hand, recovery as for a collision was allowed under almost identical circumstances. Where, in order to avoid striking an approaching car, a driver turned out and his car left the road, fell down an embankment, struck a rock, and turned over, it was held in New York that the injury to his car was due to a ‘collision,’ the court saying, ‘In simple words it is a striking together of two objects. The road is an object, likewise the earth. Whether vertical or horizontal makes no difference.’ But the Washington Supreme Court held in 1924 that it was not a collision where a car skidded off the road and rolled and bounded down a mountain side, striking stumps and trees as it went. Again, on the contrary, the Alabama Supreme Court held that same year that where a car was left standing on a hill and started by the force of gravity, going over a cliff and hitting the ground a number of feet below, damages were recoverable as for a collision.
IV
There is one other troublesome word that needs to be noted — namely, the word ‘drunkenness.’ The Nebraska Supreme Court held that a man might be under the influence of liquor without being drunk, and gave as the test the one of whether or not he had lost control of his bodily and mental faculties. But the Iowa Supreme Court in a case involving the removal of a mayor on the ground of intoxication, after saying that intoxication and drunkenness meant the same, held, ‘It means not necessarily that he is so drunk as to be unable to walk straight or show outward signs to a casual observer, but is satisfied if he is sufficiently under the influence of liquor so that he is not entirely himself.’
A Texas court more wisely said, ‘A person may be intoxicated and not drunk. One drink will not ordinarily make a man drunk. Defendant had the appearance of a man who was drinking some but able to attend to his business.’ But the same court had said previously with even a greater exhibition of wisdom, ‘It is extremely difficult to draw the line on a “drunk.” There are various stages, such as quarter drunk, half drunk, and dead drunk. There are the stages of being vivacious, foxy, tipsy, and on a “high lonesome,” and it is as difficult to determine when a young lady gets to be an old maid as it is to tell when a man has taken enough alcoholic stimulant to pass the line between “jolly sober” and “gentlemanly drunk."'
And now, approaching the end, let us see what ‘end’ means according to an august appellate tribunal. Said the Virginia Supreme Court: ‘It imports what will be when the Apocalyptic Angel, with one foot on the sea and the other upon the Earth, shall lift his hand to Heaven and swear, by Him that liveth forever and ever, that there shall be “Time no longer.”’
It is well, however, to note that at least in one instance a high court was stumped by a problem of definition. It was the Supreme Court of Georgia, which in 1925 admitted and explained: —
‘From the days of Socrates and Xantippe, men and women have known what is meant by nagging, although philology cannot define or legal chemistry resolve it into its elements. Humor and threats arc idle. Soft words but increase its velocity and harsh ones its violence. Darkness has for it no terrors, and the long hours of the night draw no drapery of the couch around it. It takes the sparkle out of the wine of life and turns at night into ashes the fruits of the labor of the day. In the words of Solomon, “it is better to dwell in the corner of the housetop than with a brawling woman in the wide house.” ’
And further deponent sayeth not.