Bard Cited

The voice of William Shakespeare rang out twice last week in the high courts of two States as that widely informed Elizabethan's opinion was cited in a pair of widely different cases. In Indiana, the Bard's side won. In New York it lost.

Needy Shop, Called upon to decide whether or not Carroll Perfumers, Inc. of Fort Wayne was really a drug store and subject to the State's pharmacy law, Indiana's Supreme Court ruled that it was and that the fact that it sold other things than drugs had no bearing on the matter. In fact, the modern drug store's large and heterogeneous stock was nothing new to Judge James P. Hughes, who was reminded of Romeo's lines in Romeo & Juliet (Act V, Scene 1) when he entered the apothecary's shop:

. . . And in his needy shop a tortoise hung, An alligator stuff'd, and other skins Of ill-shaped fishes; and about his shelves A beggarly account of empty boxes, Green earthen pots, bladders and mustyseeds, Remnants of packthread and old cakes of roses, Were thinly scatter'd, to make up a show. . . . Goods, Chattels. Before the New York Court of Appeals came the case of a man who wanted to sue another man for alienating his wife's affections and criminal conversation (adultery). The case (Hanfgarn v. Mark) had been appealed to test two phases of New York's 1935 anti-heart balm act. For the plaintiff, counsel claimed that the rights which a husband has in the affection and society of his wife are property rights. After citing legal precedents, counsel turned to Petruchio's lines about his wife Katharina in The Taming of the Shrew (Act III, Scene 2):

... I will be master of what is mine own. She is my goods, my chattels; she is my house, My household stuff, my field, my barn, My horse, my ox, my ass, my any thing; And here she stands, touch her whoever dare; I'll bring my action on the proudest he That stops my way in Padua. . .

The citations were ineffective, the Court of Appeals decided, and the Shakespearean sentiments atavistic. Wrote Judge Irving G. Hubbs: "A wife is no longer the property of her husband in the eyes of the law, and by the general acceptance of society. . . . Not being a common law contract the [marriage] relation may be regulated . . . without violating the provision of the Federal or State Constitutions which forbids the taking of life, liberty or property without due process of law."

Upheld by the State's highest court on the last day of 1936 in the case of Fearon v. Treanor was the section of the law banning breach of promise suits. Last week in the U. S. Supreme Court Nurse Catherine Fearon of New York filed an appeal seeking to have New York's anti-heart balm act declared unconstitutional. Cited by her lawyer was Article I, section 10 of the U. S. Constitution: "No State shall.. . pass any . . . law impairing the obligation of contracts. . . ." In the Hanfgarn v. Mark opinion New York's Court of Appeals ruled that marriage "is not a common-law contract as generally understood . . . [containing] many elements foreign to [it]."

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