Michigan Law Review

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I
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MICHIGAN
LAW
REVIEW
VOLUME
XIX
1920-1921
UNIVERSITY OF MICHIGAN
LAW SCHOOL
ANN ARBOR, MICHIGAN
1o21
COPYRIGHT, I92o-Io2I
By MICHIGAN LAW REVIEW ASSOCIATION
TABLE
OF CONTENTS
ARTICLES
Const1tut1on of the Emp1re op Japan, TheGeorge A. Malcolm
62
Const1tut1onal Dec1s1ons by a Babe Major1ty of the CourtRobert
Eugene Cushman
771
Const1tut1onal Law 1n 1919-192o, I, II, IIIThomas Reed Powell
1, "7- 283
Court of Industr1al Relat1ons 1n Kansas, TheH. W. Humble
675
Damage L1ab1l1ty of Char1table Inst1tut1onsCarl Zollman
395
Departure from PrecedentH. W. Humble
6o8
Does the Const1tut1on Protect Free SpeechHerbert F. Goodrich. 487
H1story of M1ch1gan Const1tut1onal Prov1s1on Proh1b1t1ng a Gen
eral Rev1s1on of the LawsW. L. Jenks
615
Ind1rect Revocat1on and Term1nat1on by Death of OffersJames
Lewis Parks
152
Interest on Cla1ms 1n Rece1versh1p Proceed1ngsRalph E. Clark
35
Law of O1l and Gas, IV, TheJames A. Veasey
161
League of Nat1ons and the Laws of War, The
835
New Hampsh1re Const1tut1onal Convent1onLeonard D. White
383
Plural1ty of Advantage and D1sadvantage 1n Jural Relat1onsAl
bert Kocourek
47
Publ1c Pol1cy and Personal Op1n1onJohn Barker Waite
265
Purchase of Shares of a Corporat1on by a D1rector from a Share
holderHarold R. Smith
698
Read1ngs from Anc1ent Ch1nese Codes and Other Sources of Ch1nese
Law and Legal IdeasJohn Wu
5o2
Rent Regulat1on under the Pol1ce PowerAlan W. Boyd
599
Respect1ve R1ghts of Preferred and Common Stockholders 1n Surplus
Prof1tsGeorge Jarvis Thompson
463
Rule of Law and the Legal R1ght, TheJoseph H. Drake
365
States and Fore1gn Relat1ons, TheJohn M. Mathews
69o
Statutes of Edward I, TheThe1r Relat1on to F1nance and Adm1n
1strat1onNathan Isaacs
8o4
Suspens1on of the Absolute Power of Al1enat1on, TheOliver S.
Rundell
235
Term1nat1on of War, TheJohn M. Mathews
819
Trust Company 1n M1ch1gan, TheRalph Stone
718
"Watered Stock"Comm1ss1ons"Blue Sky Laws"Stock w1thout
Par ValueWilliam W. Cook
583
c^>
468096
AUTHORS OF ARTICLES
Boyd, Alan W.Rent Regulation under the Police Power
599
Clark, Ralph E.Interest on Claims in Receivership Proceedings
35
Cook, William W. "Watered Stock" Commissions "Blue Sky
Laws"Stock without Par Value
583
Cushman, Robert EugeneConstitutional Decisions by a Bare Majority
of the Court
771
Drake, Joseph H.The Rule of Law and the Legal Right
365
Goodrich, Herbert F.Does the Constitution Protect Free Speech?
487
Humble, H. W.Departure from Precedent
6o8
The Court of Industrial Relations in Kansas
'
675
Isaacs, NathanThe Statutes of Edward ITheir Relation to Finance
and Administration
8o4
Jenks, W. L.History of Michigan Constitutional Provision Prohibiting
a General Revision of Laws
615
Kocourek, AlbertPlurality of Advantage and Disadvantage in Jural
Relations
47
Malcolm, George A.Constitution of the Empire of Japan
62
U Mathews, John M.The States and Foreign Relations
6go
The Termination of War
819
Parks, James LewisIndirect Revocation and Termination by Death of
Offers
152
Powell, Thomas ReedConstitutional Law in 1919-192o, /, //, III.1, 117, 283
Rundell, Oliver S.The Suspension of the Absolute Power of Aliena
tion
285
Smith, Harold R.Purchase of Shares of a Corporation by a Director
from a Shareholder
698
Stone, RalphThe Trust Company in Michigan
718
Thompson, George JarvisRespective Rights of Preferred and Common
Stockholders in Surplus Profits
463
Veasey, James A.The Law of Oil and Gas, IV
161
Waite, John BarkerPublic Policy and Personal Opinion
265
White, Leonard D.New Hampshire Constitutional Convention
383
Wu, JohnReadings from Ancient Chinese Codes and Other Sources of
Chinese Law and Legal Ideas
5o2
Zollman, CarlDamage, Liability of Charitable Institutions
395
SUBJECT INDEX
ACCIDENTMeaning of, in Workmen's Compensation
ACKNOWLEDGMENTBy Married Woman over Telephone
638
432
ADMINISTRATIVE LAWAuthority to License Private Detectives.. 648

Corporation Commissions
5^3
ADMIRALTYMaritime LiensPersonality of Ship
3*4
ADMIRALTY LAWRule of "Care, Cure, and Wages" as Applied to

the Great Lakes
539
ADOPTIONRe-Adoption by Natural ParentEffect upon Right to
Inherit from Foster Parents
92
Specific Performance of Contract to Adopt
114
ADVERSE POSSESSIONColor of Title without Writing
Hostility of Possession
Life Tenant under Void Devise Holding against Remainder
man
Possession in One County With Color of Title Covering Land
Extending into Other County
Tacking
645
93
ADVERTISEMENTSUse of Wall for, as Easement
1oo
741
552
93
ALIENATIONNew York Rule against Suspension of the Power of

Alienation
242
Suspension of the Absolute Power of (art.)
235
ALIENSCapacity to Inherit Land
1o4
ALIMONYAward of Specific Portion of Husband's Estate as
564
ANIMALSDamages by Trespassing Chicken

Liability of Owner for Acts of
422
2o9
APPEAL AND ERRORAllowance of Costs for Brief Needlessly

Large
561
APPELLATE JURISDICTIONAppeals by State in Criminal Cases.. 79
ASSAULT AND BATTERY (See also Criminal Law)
Infection of Wife by Husband with Venereal Disease
659
ASSIGNMENTSInstruction to Debtor to Pay Debt to Third Person.. 552

Set Off by Debtor against Assignor in Action by Assignee
54o
ATTACHMENTSpecial Bail in Action Commenced by
853
vi
TABLE OF CONTENTS
ATTORNEY AND CLIENTAbsence of Counsel as Unavoidable Cas

ualty Excusing Default
S&7
Contract Prohibiting Dismissal of Action without Attorney's
Consent
745
Fee of Attorney as "Reasonable and Necessary Family Ex
pense"
657
Privileged Communications when Party to Action Consults Him
self as Attorney
1oo
ATTORNEYSDisbarment for Disloyalty
865
AUTOMOBILES"Collision" as Used in Insurance Policy
88o
Constitutionality of Statute Making Owner Liable for Injury
Caused by Another's Negligent Driving
333
Contributory Negligence of Guest in Failure to Warn
433
Contributory Negligence of Passenger in Failing to Warn Driver
of Danger
743
Duty of City to Inspect City Officer Soliciting Ride in
569
The FamilyLiability of Owner for Its Negligent Use
543
Forfeiture for Carrying Intoxicating Liquors
35o
Liability of Owner of Dog for Upsetting
2o9
Negligence Based upon Violation of Statute Giving Vehicle
from Right the Right of Way
742
Negligence of Driver as Imputable to Guest
858
Speed Law Not Void for Uncertainty though Reasonbleness of
Speed Left to Jury
218
Taxicabs as Common Carriers
94
BAILMENTSDuty of Gratuitous Bailor to Warn of Defects
93
BASEBALLNational Agreement as Monopoly under Sherman Act... 867
Baseball and The Judiciary
19o
BETTINGNuisance by Aiding
449
BLUE SKY LAWS (art.)
583
BOUNTIESDrafted Man Inducted into Military Service but Rejected
at Cantonment
742
BOYCOTTEffect of Clayton Act
628
BROKERSEffect of Subsequent Impossibility of Performance of Con
tract upon Broker's Right to Commission
334
Vendor's Knowledge of Instrumentality of, not Necessary
866
CAPITAL ASSETSProfits from Sale of, as Income
85/
"CARE, CURE, AND WAGES"Rule of, as Applied to Great Lakes.. 539
CARRIERSCommodities Clause of the Hepburn Act
553
Contributory Negligence of Passenger in Failing to Warn Driver
of Danger
743
Degree of Care Required in Keeping Aisles Clear
743
Liability for Loss of Baggage of Passenger from Adjacent
Foreign Country
433
TABLE OF CONTENTS
vii
Limitation of Amount of Liability

645
Rates on Single Class of Commodities
744
Taxicabs as Common
94
CHAMPERTY AND MAINTENANCE (See Contracts)
CHARITABLE INSTITUTIONSDamage Liability of (art.)
395
CHARITIESCy Pres Doctrine
335
CHATTEL MORTGAGES (See Mortgages)
CHICKENSDamages by Trespassing
422
CHINESE LAWEasement of Light and Air in
565
Readings from Ancient Chinese Codes and other Sources
5o2
CITY PLANNINGLocation of Streets and Establishment of Build
ing Lines
327
CLAYTON ACTEffect in Boycott Cases
628
COMMERCEStatute Regulating Use of Foreign Eggs in Hotels, etc. 739
COMMISSIONSControl over Stock Issues (art.)
583
Power of, to Change Contract Rates of Public Utility
112
Regulation of Rent
6o4
Review of Actions of
648
CONDEMNATIONRight of Municipal Corporation to Take Land in
Another State by
448
CONDITIONSImpliedMateriality of Breach of Promise in Bilat
eral Contract
338
CONSPIRACYClosed Shop Controversy
628
CONSTITUTIONForbidding General Revision of Laws
615
Of the Empire of Japan, (art.)
62
CONSTITUTIONAL DECISIONS BY A BARE MAJORITY OF
THE COURT (art.)
771
CONSTITUTIONAL CONVENTIONIn New Hampshire
383
CONSTITUTIONAL LAW (See also Police Power)
Administrative Power and Procedure as Shown by Supreme
Court Cases in 1o19-102o
313
Arbitration Law as Impairment of Contract Obligation
866
Automobile Owner Made Liable for Injury by Another's Neghgent Driving
333
Baseball Club as Engaged in Trade or Commerce under Sher
man Act
867
Compulsory Workmen's Compensation
731
Concurrent Power under 18th Amendment
329, 435
Conservation of Natural Gas
555
Decisions by a Bare Majority of the Court
771
Declaratory Judgments
86
Delegation of Legislative Power
211
TABLE OF CONTENTS
Does the Constitution Protect Free Speech? (art.)
Dower not a "Privilege or Immunity"
Due Process
Ancient Procedure as
Exemption of Farmer from Food Control under Lever Act. .
Fixing Prices for Sale of Necessaries
Forfeiture of Automobile for Carrying Intoxicating Liquors
Ordinance Authorizing Commissioner to Revoke License...
Eminent Doman Decisions of Supreme Court in 1919-192o
Foreign Egg Legislation
Freedom of Press
Immunities of Persons Charged with Crime (Decisions in 1919192o)
In 1919-192o (art.)
1, 117,
Intergovernmental Relations in Supreme Court Cases of 1919192o
;
Jurisdiction and Procedure of Courts as Developed by Supreme
Court Decisions in 1919-192o
Minimum Wage
Municipal Zoning
Oil Inspection Law with Fees Largely Exceeding Cost thereof
Invalid as to Interstate Commerce
Police Power
Anti-Cigarette Law
Cedar Rust Law as Exercise of
Decisions of Supreme Court in 1919-192o
Ordinances to Prevent "Scalping"
Rent Regulation (art.)
Power of Congress over Senatorial Primaries
Power of Legislature to Regulate Rents
Price Fixing by the State
Price Regulation under the Police Power
"Privileges and Immunities" Clause a Limitation of State Action
Action
Prohibition of General Revision of Laws
Regulation of Dance Music under 14th Amendment
Regulation of Sale and Prices of School Text-books
Rent Regulation
Repeal of Tax Exemption as Impairment of Contract
Requirement that Voter State Age
Retroactive Civil Legislation Decisions of the Supreme Court
in 1919-192o
State Medical Association as State Board of Health
State Ownership of Cement Plant
State Power in War Time Legislation
State Power to Deal with "Criminal Syndicalism"
487
556
853
436
336
35o
64o
147
739
728
288
283
322
3o1
756
192
2o9
557
554
136
871
599
86o
437
415
74
558
558
615
883
649
95
438
878
283
213
747
87o
746
TABLE OF CONTENTS
Statute Creating Offense Void for Indefiniteness
Vagueness of Statutory Offense as Violative of 6th Amendment.
CONTRACTSArbitration Statute Constitutional
Custom and Usage as Affecting Written
Fixing Resale Price
Giving "Information" as Consideration
Identity of Contracting Parties Material
Implied ConditionsMateriality of Breach
Implied Contract by Corporation to Pay Its Officer for Services.
Impossibility as Affecting Broker's Claim to Commissions
Indirect Revocation and Termination by Death of Offers (art.) .
Mistake in Communication of Offer by Telegram
Moral Consideration
Postnuptial Contract to Pay Wife an Allowance not Illegal
Prohibiting Dismissal of Action without Attorney's Consent
MutualityIndefinite Quantity
Rights upon Nonpayment of Installment
Sheriff's Right to Reward
Silence as Acceptance
Stifling Competition
Substantial Performance of Conditions Precedent
CONVERSIONMeasure of Damages for Conversion of Timber
CORPORATIONSCompensation of Officers
Criminal Liability
Guaranties of
Investments by Trustee in Stock of
Necessity for Seal in Incorporation
Purchase of Shares by a Director from a Shareholder (art.) . . .
Respective Rights of Preferred and Common Stockholders in
Surplus Profits (art.)
Stockholder's Liability for Tort under Statute Imposing Liabil
ity for "Debts"
Valuation for Franchise Fee Purposes in Case of Stock with
No-Par Value
Watered Stock and Stock without Par Value
CORRUPT PRACTICESConstruction of Federal Act
COSTSAllowance for Brief Needlessly Large
COURT OF INDUSTRIAL RELATIONS IN KANSAS, THE (art.) .
COVENANTSSee Restrictions
CRIMINAL LAWAiding and Abetting Suicide
Assault with Intent to Rob where Accused Claims Ownership
Appeals by the State
Double JeopardyConviction in State Court as bar to Prosecu
tion in Federal Court
Evidence of Non-Consent
ix
648
337
866
873
269
874
56o
338
96
334
152
215
649
658
745
339
559
761
34o
65o
875
228
96
2o5
216
23o
668
698
463
341
95
583
86o
561
678
98
748
79
647
75o
TABLE OF CONTENTS
Instruction to Find Defendant Guilty in Criminal Case

Intoxication as Defense
Liability of Corporations
Post Dated Check without Funds
Receiving Stolen GoodsPresumption from Possession
Right of Jury to Render Verdict against the Law and the Evi
dence
Speed Law Making Reasonableness of Speed Question for Jury
Statute Creating Offense Void for Indefiniteness
Waiver of Confrontation
'
CUSTOMContracts as Affected by
CY PRESApplication to Charities
DAMAGE LIABILITY OF CHARITABLE INSTITUTIONS (art.)
DAMAGESAlternative Contracts and Liquidated Damages
Breach of Contract where there is no Market for Subject Matter
Continuous Trespass or Repeated Wrong
Fluctuating Exchange
Injury Caused by a Permanent Structure
Instruction Failing to Point Out Limit of, under Proof
Conversion
Valuation and Pre-ascertainment
DEAD BODIESProperty in
DEATHInterpretation of "Child" in Action for
DECLARATORY JUDGMENTSAppeals by the State in Criminal
Cases
Constitutionality of Statute Providing for
Kansas Act Providing for
DEEDSAcknowledgment by Married Woman on Telephone
Delivery in Escrow to Grantee
343,
Delivery Where Grantor Retains Possession
DELIVERY (See Deeds)
DEPARTURE FROM PRECEDENT (art.)
DESCENT AND DISTRIBUTIONEffect of Statute Disinheriting
One Convicted of Killing an Ancestor
DIRECTORPurchase of Shares from a Shareholder by (art.)
DIVORCE (See also Alimony)
Effect of Foreign Decree upon Wife's Suit to Recover for Nec
essaries
DOUBLE JEOPARDYProsecution under Federal Law after Convic
tion in State Court
DOWERNot a "privilege or immunity" within Constitution
EASEMENTSAgreement to Convey Free from Encumbrances as
Applied to Visible
762
97
2o5
651
565
325
218
648
439
873
335
395
371
652
749
652
342
89o
228
369
219
562
79
86
537
432
563
44o
6o8
344
698
654
647
556
454
TABLE OF CONTENTS
Extent of Rights in Mill-pondIce
Extinguishment by Voluntary Destruction of Servient Tene
ment
Light and Air in Chinese Law
Non-User as Abandonment
Use of Wall for Advertising
ECONOMICSRelation of Law and
EIGHTEENTH AMENDMENT"Concurrent Power" under
329,
Validity of
EJECTMENTBy Vendee in Land Contract
ELECTIONSSenatorial Primaries as
Validity of Statute Requiring Voter to State Age
EMINENT DOMAINLocation of Streets and Establishment of
Building Lines in City Planning
Municipal Zoning
Right of Municipal Corporation to take Land in Another State by
ENCUMBRANCESAgreement to Convey Free fromVisible Ease
ments
ENTIRETIESPersonal Property Held by Husband and Wife as Ten
ants by
EQUITYNebulous Injunctions
Right of Tort Feasor to Indemnity and Exoneration
Unclean Hands
Where Loss must Fall as between Vendor and Purchaser When
Premises Damaged
ESCROWSDelivery of Deed to Grantee as an
343,
ESTOPPELTo Plead Statute of Limitations
EVICTION (See Landlord and Tenant)
EVIDENCEAdmissibility of Evidence Unlawfully Seized
Burden of Proof on Plea of Payment where Mistake in Giving
Receipt Set up in Reply
Confession by "third degree" not voluntary
Dying Declarations in Civil Cases
Extrinsic Evidence to Remove Latent Ambiguity in Will
Moving Pictures as Best Evidence
Presumption from Possession of Stolen Property
Privileged Communications between Husband and Wife
Privileged Communications between Physician and Patient
Waiver
Privileged Communications where Attorney Consulted is Him
self a Party
Proof of Non-Consent by Circumstantial
Relation of Res Ipsa Loquitur to Burden of Proof
Statements by Deceased after Attack as Part of Res Gestae
xi
876
876
565
99
1oo
265
4.15
2
877
86o
878
327
192
448
454
879
83
549
441
57
563
756
355
347
655
6o8
668
1o 1
565
655
2o2
IOO
75o
451
442
xii
TABLE OF CONTENTS
EXECUTORS AND ADMINISTRATORSSuits by and against For

eign
EXONERATION (See Equity)
EXTRATERRITORIALITYEasement of Light and Air in Chinese
Law
"FAMILY AUTOMOBILE, THE"
FEDERAL COURTSJurisdiction of, in Suits by Representatives of
a Class
FINANCE AND ADMINISTRATIONRelation of Statutes of Ed
ward I to (art.)
FIVE TO FOUR DECISIONS (art.)
FOODImplied Warranty of Purity of Water
FOREIGN RELATIONS AND THE STATES (art.)
FRAUDDeception Regarding Marriage as Affecting Legacy Pro
cured thereby
FRAUDS (See Statute of Frauds)
FREE SPEECHDoes the Constitution Protect (art.)
FREEDOM OF SPEECHUse of Mails
FUTURE ESTATESIn Recent Statutes and Cases
GAMERight to Shoot Wild Fowl on Navigable Waters
GAS AND OILConservation of, as Exercise of Police Power
Law of (art.)
GIFTSDirection to Debtor to Pay Debt to Donee
GOVERNORWhen May Use Quo Warranto
GUARANTYCorporation's Power to Make Contracts of
HEALTHState Medical Association Made State Board of Health
HEPBURN ACT(See also Carriers)
Holding Company's Operations as Violations of
HISTORY OF MICHIGAN CONSTITUTIONAL PROVISION PRO
HIBITING A GENERAL REVISION OF THE LAWS
(art.)
HOSPITALSLiability for Damages
HUSBAND AND WIFEAttorney's Fee not "Reasonable and Neces
sary Family Expense"
Award of Specific Portion of Husband's Estate as Alimony
Effect of Foreign Divorce upon Wife's Action to Recover for
Necessaries
Effect of Marriage upon Woman's Contract for Service with
Husband
Estates by Entirety in Personal Property
22o
565
543
758
8o4
771
667
6oo
764
485
728
426
753
555
161
656
666
216
213
221
615
395
657
564
654
879
879
TABLE OF CONTENTS
xiii
Infection of Wife by Husband with Venereal Disease

659
Postnuptial Contract to Pay Wife an Allowance
658
Privileged Communications between
655
Purchase of Land by Husband and Conveyance to Wife as Cre
ating Trust
525
Right of Husband to Wife's Services and Earnings
2o7
ICERights to, in Mill-Pond
876
INCOME TAXDeduction of State Inheritance Tax Payment in Com
puting
348
Loss in Outside Speculation as "Losses Incurred in Trade"
1o3
Profits from Sale of Capital Assets Subject to
854
INDEMNITY (See Equity)
INDIANSAllottee Acquires Full Equitable Estate
222
INDIRECT REVOCATION AND TERMINATION BY DEATH
OF OFFERS (art.)
152
INDUSTRIAL RELATIONS, Court of (art.)
678
INFANTSAction for Prenatal Injuries
753
Illegal Employment of, As Negligence per se
664
Attractive Nuisance as to
45o
INJUNCTIONAgainst Strike by Salesman Working for Commis
sions
223
Balance of ConvenienceWartime Necessity
11o
By One Tenant against Another Tenant of Same Landlord to
Enforce Restriction
217
Nebulous
83
INNKEEPERSLegislation Regulating Use of Foreign Eggs
739
Liability for Property not Lost Through Guest's Negligence
223
INSURANCEAcceptance of Application by non-Action
34o
Avoidance of Policy by Usurious Chattel Mortgage of Insured
Property
224
Construction of Provision Exempting Death Resulting from
"War"Drowning Due to Submarine
225
Death While in Military Service
443
Death in Military Service as Accidental
754
Involuntary Manslaughter of Insured by Beneficiary
444
Meaning of "Collision" in Automobile Insurance
88o
Meaning of "Total Disability"
349
Negligent Delay of Agent in Forwarding Application
737
Proof of Accidental DeathTestimony of PhysicianPrivi
leged Communications
2o2
Proximate Cause under Windstorm Policy
88o
INTEREST ON CLAIMS IN RECEIVERSHIP PROCEEDINGS
(art.)
35
xiv
TABLE OF CONTENTS
INTERNAL REVENUE (See also Income Tax)"Losses Incurred in

Trade" as Applied to Losses in Outside Speculation
1o3
INTERNATIONAL LAWAliens Capacity to Inherit Land
1o4
British Yearbook 192o-21
766
Effect of War on Treaties
\
1o4
Equality of States in
671
League of Nations and The Laws of War
835
Permanent Court of Justice
4r3
Termination of War
819
Baseball as
867
INTERSTATE COMMERCECommodities Clause of the Hepburn
Act
553
Message between Two Points in Same State Routed Through
Another
227
Mining and Transportation of Commodity by Separate Com
panies Operated through a Holding Company as Violative
of Hepburn Act
'
221
Oil Inspection with Fees Largely Exceeding Cost Thereof
2o9
Regulation of (Decisions of Supreme Court in 1919-192o)
19
Roundhouse Laborer while Dumping Ashes not Engaged in
211
State Taxation and (Decisions of Supreme Court in 1919-192o) 3o
Uniform Bill of Lading Applied to Foreign Shipment
645
INTOXICATING LIQUORSPossession under Statute, What is
66o
INTERSTATE COMMERCEPrice Regulation by the State and
415
INTOXICATING LIQUORSStatutory Forfeiture of Automobile
Carrying
35
What is a Beverage
566
JAPANConstitution of the Empire of (art.)
62
JUDGESDisqualification by Prejudice
Provision for Expenses as Increase in Compensation
637
445
JUDGMENTSAbsence of Counsel as Unavoidable Casualty Excusing

Default
567
Kansas Act Providing for Declaratory
537
JURAL RELATIONSPlurality of Advantage and Disadvantage in
(art.)
47
JURORSExcuse of Juror as Entitling Defendant to Another Peremp
tory Challenge
661
Women as
662
JURYCoercion of, as Reversible Error
228
Communication to, as Basis for New Trial
574
Swearing of, after Evidence is All in
115
KANSAS COURT OF INDUSTRIAL RELATIONS (art.)
678
TABLE OF CONTENTS
LANDLORD AND TENANTAcceptance of Sum from Holdingover Tenant as Waiver of Notice to Quit
Constitutionality of Statute Regulating Rents
95, 437,
Construction of Covenant not to Use for Immoral Practices
Constructive Eviction Requires Abandonment
Enforcement by the Tenant of Covenant between Landlord and
Other Tenant
Regulation of Rent (art.)
Waste by Alteration
LAW OF OIL AND GAS, THE (art.)
LEAGUE OF NATIONS AND THE LAWS OF WAR, THE (art.) . .
xv
1o5
869
446
755
217
599
1o5
161
835
LEASESHabendum Clause of Oil and Gas

LEGAL RIGHTThe Rule of Law and the (art )
161
365
LEVER ACTVoid for Indefiniteness

LIBEL AND SLANDER"Crook" as Expression Slanderous per se....
Publication of Libel to Agent
Publication to Employees of Defendant
Slander of Title
LICENSESDuty of Meter Reader to Knock before Entering Dwell
ing
House Guest a Licensee
Validity of Ordinance Authorizing Commissioner to revoke....
648
452
447
1o6
1o7
LIENSMaritimeShip Supplies
LIMITATIONS (See Statute of Limitations)
324
MAILSFreedom of Press and Use of
728
MARITIME LIENSPersonality of Ship

MARRIAGEDeception Regarding, as Affecting Legacy Procured
thereby
Effect upon Contract of Woman for Services
Misrepresentation as to Name and Condition
MARRIED WOMENHusband's Right to Wife's Services and Earn
ings
MASTER AND SERVANT (See also Workmen's Compensation)
Duty of Master to Aid Ailing and Injured Employee
Illegal Employment of Minor as Negligence per se
Inducing Discharge and Refusal to Employ
Liability of Master for Injuries to Third Party Servant Having
Violated Instructions
Liability of Master for Negligence of Physician hired to Attend
Employees
Liability of Master for Servant's Wilful Torts
324
761
572
64o
764
879
881
2o7
663
664
345
1o8
568
882
xvi
TABLE OF CONTENTS
MINIMUM WAGEValid though no Provision in Act for Notice to

Employers
MONOPOLIESBaseball under National Agreement
MOOT CASES (See Declaratory Judgments)
MORTGAGESEffect of Extension of Time to Grantee of Mortgagor
Who Took Subject to the Mortgage
Effect upon Insurance of Usurious
Resulting Trust in Favor of one Advancing Money to Mort
gagor to Redeem
MOVING PICTURESApplication of Best Evidence Rule as to
MUNICIPAL CORPORATIONSAuthority to Act beyond Bound
aries
Awning as Nuisance Making City Liable for Water Drained
therefrom and Frozen
Contracts Fixing Rates
Control of Undertaking Establishments
Duty of Inspection of Automobile in Favor of City Officer Solic
iting Ride
Implied Powers to Operate Ambulance
Letting Contracts to Lowest BidderIndefinite Specifications..
Licensing of Ticket "Scalpers"
Ordinance Authorizing Commissioner to Revoke License
Power to Act as Trustee
Regulation by Ordinance of Dance Music
Right to Condemn Land for Waterworks in Another State
Special Assessments on Improvements
State Power over Public Utility Rates
NAVIGABLE WATERSRight to Shoot Wild Fowl on
NECESSARIESFixing Resale Prices of
NEGLIGENCEDegree of care on Part of Carrier Required as to
Keeping Aisles Clear
Doctrine of Res Ipsa Loquitur
Driver's Negligence as Imputable to Guest
Duty of Physician to Advise Regarding Exposure to Infec
tious Disease
Efficient Intervening CauseConcurrent Acts
Escalator as Attractive Nuisance
Failure of Guest to Warn Driver of Automobile as Contributory
Failure to Stop and Look at Street Railroad Crossing as Con
tributory
Illegal Employment of Minor as
House Owner Maintaining Rugs on Polished Floors
Imputed Negligence in Case of Parent and Child
Liability of Owner of Automobile for Negligent Use thereof
by Member of Family
75
867
351
224
892
1o1
352
758
884
353
569
884
57o
871
64o
757
883
448
571
547
753
336
743
887
858
888
354
758
433
452
664
572
1o9
543
TABLE OF CONTENTS
xvii
Master's Liability for Negligence of Physician Engaged to At

tend Employees
Passenger Failing to Warn Driver of Danger as Contributory. .
Pedestrian Crossing Street Railway TrackError of Judgment.
Violation of Statute Giving Vehicle from Right the Right of
Way as
568
743
665
742
NEGOTIABLE INSTRUMENTSAcceptance of Check as Payment.. 666

Issuance of Post Dated Checks without Funds as a Crime
651
NEW HAMPSHIRE CONSTITUTIONAL CONVENTION, THE
(art.)
383
NEW TRIAL (See Trials)
NUISANCEAiding Betting on Races as
AttractiveCoffer Dam and Pond
Awning as
Balance of ConvenienceWartime Necessity
Escalator as Attractive
Funeral Home in Residence District
449
45o
758
11o
758
Ill, 45o
OFFER AND ACCEPTANCE (See Contracts)

OFFICERS (See Judges)
OIL AND GAS, THE LAW OF (art.)
161
ORDINANCEAuthorizing Commissioner to Revoke License
64o
PARENT AND CHILDAdoptionEffect of Re-adoption by Natural

Parent upon Right to Inherit from Foster Parents
92
Illegitimate Child as "Child" under State Giving Cause of Action
for Death
562
Imputed Negligence
1o9
PARTIESBringing Third Parties into Actions at Law
Suit by Representatives of a Class
54o
759
PARTNERSHIPDuty to Keep Accounts
573
PATENTSRestrictions upon Sale and Use of Articles Protected by 274

Utility of Invention
226
PAYMENTAcceptance of Check as
PHYSICIANS AND SURGEONSDuty Toward Those Liable to
Exposure to Infectious Disease
Employer's Liability under Workmen's Compensation for Un
skillful Treatment of Employee by
Liability of Master for Negligence of, in Attending Employees..
Waiver of Privilege as to Communications to
666
885
578
568
2o2
xviii
TABLE OF CONTENTS
PLURALITY OF ADVANTAGE AND DISADVANTAGE IN

JURAL RELATIONS (art.)
POLICE POWERMunicipal Corporations May Control Undertaking
Establishments under
POST OFFICEMail box not a
PRECEDENTDeparture from (art.)
PRICE REGULATIONInterstate Commerce and
PRICESRegulation of, under the Police Power
PRINCIPAL AND AGENT (See also Brokers)
PROCESS (See Attachment)
Deposit of Copy of Summons in Letter Box not a Mailing in
"Post Office", etc
PROXIMATE CAUSE (See Negligence)
PUBLIC POLICY AND PERSONAL OPINION (art.)
PUBLIC PURPOSE (See Taxation)
PUBLIC SERVICE CORPORATIONSFree Use of Gas by Lessor..
PUBLIC UTILITIESPower of Commission to Change Contract
Rates
Power of Municipality to Contract Regarding Rates
RatesState Power over Municipality
Valuations of, and Rates
PURCHASE OF SHARES OF A CORPORATION BY A DI
RECTOR FROM A SHAREHOLDER (art.)
QUASI CONTRACTSWork Done under Mistake
QUO WARRANTOWhen Governor May Use Writ
RATES (See Public Utilities)
Fixing of, as to Single Class of Commodities
Public Utilities Valuations and
REASONABLE DOUBTDoctrine of, in Decisions on Constitutional
Questions
RECEIPTMistake in GivingBurden of Proof Where Such Receipt
Pleaded as Payment
REMAINDERS (See Future Estates)
RENTAcceptance of, by Landlord but not as Rent as Waiver of No
tice to Quit
Regulation Under the Police Power (art.)
RES GESTAE (See Evidence)
RES IPSA LOQUITURRelation of, to Burden of Proof
Explosion of Bottle
47
353
89o
6o8
415
74
8oo
265
76o
112
886
547
849
698
888
666
744
849
773
347
1o5
599
451
884
TABLE OF CONTENTS
xix
RESTRAINTS ON ALIENATIONScope of Rule Against

RESTRICTIONSOral Agreement to Sell Other Property Subject to
219,
Resale Price
Tenant's Right to Enforce, as Against Another Tenant of Same
Landlord
Upon Enjoyment of Personal Property
REWARDSSheriff's Right to
239
RULE AGAINST PERPETUITIESScope of
236
RULE IN SHELLEY'S CASEApplication of

In Recent Statutes and Cases
Qualifying Words
RULE OF LAW AND THE LEGAL RIGHT, THE (art.)
SALESImplied Warranty of Purity of Water
Rights of Vendor upon Non-payment of an Installment
SCHOOLSRegulation of Sale and Prices of Textbooks
SEALSA Mere Formality
SEARCHES AND SEIZURESAdmissibility of Evidence Unlawfully
Seized
SEDITION ACTRevocation of Second Class Mail Privileges for
Violation of
SET OFFAgainst Assignor in Action by Assignee
SLANDER (See Libel and Slander)
SLANDER OF TITLERecordation of Defective Deed as
SOLDIERS BONUS (See Bounties)
SPECIAL ASSESSMENT (Benefits too Uncertain)
SPECIFIC PERFORMANCE (See also Equity)
Contract to Adopt Suit by Child
Denial of Remedy to Vendee in Default
SPEECHFreedom of
STARE DECISISDoctrine of
573
426
113
365
667
559
649
668
STATESEquality of, in International Law

Power to Enact Laws in Aid of Federal Legislation
STATES AND FOREIGN RELATIONS, THE (art.)
STATUTE OF FRAUDSConstructive Trust upon Conveyance with
Oral Agreement to Reconvey
Foreign Exchange Transfer
Oral Agreement by Grantor to Convey other Tracts, with Re
striction
671
87o
69o
751
269
217
266
761
355
728
54
1o8
571
114
889
728
6o8
229
1o2
751
XX
TABLE OF CONTENTS
Oral Agreement by Vendor to Sell other Property Subject to

Restrictions
219
Pleading Signed by Attorney as Sufficient Memorandum
752
Resulting Trust Where Wife Orally Agreed to Hold Land Con
veyed to Her for Use of Husband
575
STATUTE OF LIMITATIONSContinuing Trespass
115
Continuing Trespass and Repeated Wrong
373
Fraud as Reply to Plea of the Statute in Action at Law
756
STATUTESMail Box not a "Post Office"
89o
Of Edward I, The (art.)
8o4
Regulating Speed of Motor Vehicles not Void for Uncertainty
though Matter of Reasonable Speed left to Jury
218
Void for Indefiniteness
337i 648
STOCKNo-Par ValueValuation of, for Franchise Fee Purposes
95
Watered (art.)
583
Without Par Value (art.)
583
STOCKHOLDERS (See also Corporations)
Respective Rights of Preferred and Common, in Surplus Profits
(art.)
463
STOCKS (See also Corporations)
Investment of Trust Funds in
23o
STRIKESInjunction by Salesman of Employer Working on Commis
sion Basis
223
SUICIDE (See Criminal Law)
SURETYSHIPEffect upon Mortgagor of Extension of Time to
Grantee of Mortgagor
351
SUSPENSION OF THE ABSOLUTE POWER OF ALIENATION,
THE (art.)
235
SYNDICALISMState Power to Deal with
746
TAXATIONMunicipal Zoning
192
To Build and Operate State Cement Plant
747
United States Supreme Court Decisions, on, in 1919-192o
117
TELEGRAPHS AND TELEPHONESAcknowledgment over Tele
phone
.'
432
Message to Another Point in State Routed through Another
State as Interstate Commerce
227
TERMINATION OF WAR, THE (art.)
819
THEATRESLegislation Making "Scalping" Illegal
871
TORTSNegligent Delay of Agent in Forwarding Insurance Appli
cation
737
TRADEMARKSRegistration of Mark Containing a Merely Descrip
tive Phrase
Il4
TABLE OF CONTENTS
xxi
TREASONDefinition of, in Federal Constitution no Limitation upon

State Power to Deal with Syndicalism
746
TREATIESEffect of War upon
1o4
TRESPASSBy Chickens
Continuing, and Repeated Wrong
373.
Duty of Meter Reader to Knock before Entering Dwelling
Limitation of Action in Continuing
Removal of Dead Body as
422
749
761
I IS
219
TRIALDisqualification of Judge by Prejudice

Excuse of Juror as Entitling Defendant to Another Peremp
tory Challenge
Right of Jury in Criminal Case to Render Verdict against Law
and Evidence
Swearing Jury after Evidence all in
Unproved Map or Diagram Used in Argument to Jury
637
TRIALSBringing Third Parties into Actions at Law

Coercion of Jury as Reversible Error
Communication to Jury as Basis for New Trial
Instruction Defective in Failing to Point out Limit of Dam
ages Recoverable under Proof
Instruction to Find Defendant Guilty in a Criminal Case
Motion for Directed VerdictEffect of Motion by Both Sides..
New Trial When Judge Misdirects Himself on Point of Law
Quotient Verdict
54o
228
574
66 r
325
115
2o4
89o
762
453
226
762
TRUST COMPANY IN MICHIGAN, THE (art.)
718
TRUSTSApplication of Doctrine of Cy pres

Bequest Merely "In Trust" as Absolute Gift
Constructive
Conveyance with Oral Agreement to Recovery
Creation ofSavings Bank Deposits in
Direction in Will to Dispose of Property "According to Best
Judgment"
Disposal of Unexpended Income Where Left for Support
Following Trust Funds When Mingled with Private Funds of
Trustee
Instruction to Debtor to Pay to Third Person
Investments by Trustee in Corporate Stocks
Power of Municipal Corporation to Act as Trustee
Resulting Trust in Favor of one Advancing Money to Mortga
gor to Redeem
Resulting Trust on Husband's Purchase of Land and Convey
ance to Wife on Her Oral Agreement to Hold for Him
Trust Company in Michigan, The (art.)
Voluntary Parol Trust with Implied Power of Revocation
335
764
229
356
455
891
234
552
23o
757
892
575
718
42o
xxii
TABLE OF CONTENTS
USES (See Future Estates)

USURYEffect upon Insurance Policy of Mortgage Void for
VENDOR AND PURCHASERAgreement to Convey Free from En
cumbrances as Applied to Visible Easements
Purchaser's Failure to Perform Strictly as Affecting Right to
Specific Performance
Rights of Parties Where Premises Damaged
Vendor's Right to Sue in Ejectment
VERDICTArrived at on Quotient Basis
WARLeague of Nations (art.)
Termination of, (art.)
WASTEAlteration as
"WATERED STOCK"Commissions"Blue Sky Laws"Stock with
out Par Value (art.)
WATERSImplied Warranty of Purity of
WATERS (See Navigable Waters)
WILLSBequest Merely "In Trust" as Absolute Gift
Construction of Repugnant Clauses
Direction to Dispose of Property "According to Best Judgment"
as Creating Trust
Effect of Deception Regarding Marriage upon Legacy
Latent AmbiguityExtrinsic Evidence
Revocation by Other Writing
WOMENEligible as Jurors under Woman's Suffrage Amendment
though State Constitution Refers to Jury of "Men"
WORKMEN'S COMPENSATIONAccident Arising out of Employ
ment
456, 458, 577,
Aggravation of Latent Disease
Constitutionality of Compulsory Statutes
Employers Liability for Unskillful Treatment of Employee by
Physician
Injuries Arising out of and in Course of Employment
Injury Arising "Out of" Employment
Meaning of "Accident"
Roundhouse Laborer while Dumping Ashes from Engine not
Engaged in Interstate Commerce
ZONING, Municipal
224
454
889
576
877
762
835
819
1o5
583
667
764
894
4SS
764
668
81
662
669
457
731
578
232
893
638
211
191
BOOK REVIEWS
Bever1dgeThe Life of John Marshall
BrycEModern Democracies
D1ck1nsonThe Equality of States in International Law
FoulkeA Treatise on International Law
HolmesFederal Income and Profits Taxes (1921 Supplement)
HughesHandbook of Admiralty Law
Og1lv1eInternational Waterways
P1cc1ottoThe British Year Book of International Law
T1ffanyReal Property
TuckerContracts in Engineering
V1nogradoffOutlines of Historical Jurisprudence
Wa1tePatent Law
W1ll1stonThe Law of Contracts
9o3
896
671
899
768
58o
234
676
362
461
9o1
46o
358, 769
CASES COMMENTED UPON

Adams Bros. v. Clark
American Coal Mining Co. v.
The Special Coal & Food
Comm. of Indiana et al
American Trading Co. v. Na
tional Fibre & Insulation Co...
American University v. Wood..
Anderson v. American Smelting
and Refining Co
Anderson v. Fidelity and Cas
ualty Co
Anway v. Grand Rapids Railway
Co
Armstrong, Whitworth & Co. v.
Red ford
Aster v. Barrett & Hulme
Auer & Twitchell v. Robertson
Paper Co
422
74
339
441
11o
94
87
458
226
Boals v. Pennsylvania R. Co...

Bohannan v. Maxwell
Booth & Flinn v. Cook
Bowman v. Virginia State En
tomologist
Bradley v. Federal Life Ins. Co
Bradshaw v. Farmers' and Bank
ers' Life Ins. Co
Braun v. Crew et ux...
Brown Holding Co. v. Feldman
Brown v. City of Los Angeles.
Buchholz v. Commonwealth....
Buhl's Estate, In re
Buchanan v. Western Union Tel
egraph Co
Butler v. Foley
211
879
578
554
738
444
351
869
354
351
23o
882
215
56o
C
B
Bagaef v. Prokopik
Bannister v. Soldiers' Bonus
Board
Barton v. State
Bassell v. Hines
B. Berman, Inc., v. Amer. Fruit
Distr. Co. of Calif
Bebb v. Jordan
Beckwith, Inc., Estate of P. D.,
v. The Commissioner of Pat
ents
Beidler v. United States
Beisel, et al. v. Crosby
Berger v. United States
Berkovitz, et al. v. Arbib &
Houlberg, Inc
Berringer v. St"' .is
Bevins v. Bhckburn.
Blackburn v. Coffeyville Vitri
fied Brick and Tile Co
Blackledge v. Simmons
Block v. Hirsh
Blough v. Chicago Great West
ern R. Co
65o
742
748
744
89o
195
114
226
111
637
866
5&7
5S2
457
573
869
45o
Calbrick v. Marysville Water &

Power Co
Canavan v. City of Mechanicsville
Carey v. Davis
Carroll v. City of Yonkers
Carson's Estate, In re
Cazallis et al. v. Ingraham et al.
Chipman v. Johnston
Clark v. Travelers' Ins. Co
Clarke Contracting Co. v. City
of New York
Clements v. McCabe
Clinton Mining & Mineral Co.
v, Beacom
Coal Company v. Fisheries Com
pany
Cochran v. Cochran
Commonwealth v. Nickerson...
Commonwealth v. Sookey
Coole, In re
Crowell v. Crowell
Cusack Co., Thomas, v. Myers..
891
667
663
57o
764
356
881
35o
339
197
342
324
892
33o
566
741
659
1oo
TABLE OF CONTENTS
D
Damers v. Trident Fisheries Co. 334
Daniels, Ex parte
218
Davies v. Thomas
346
Davis et al. v. Henry
223
Davis v. Rodman
886
Dees, Ex parte
872
Denson v. State
439
Detroit Mortgage Corporation
v. Vaughan, Sec. of State
96
Dever's Will, In re
764
Dinslage v. Stratman
656
Director of Public Prosecutions
v. Beard
97
Drobner v. Peters
753
Ducey v. Town of Webster
884
Duplex Printing Press Company
v. Deering et al
628
E
Eldorado Coal Co. v. Mager....
England v. Central Pocahontas
Coal Co
Enright v. Commonwealth
Equitable Trust Co. of N. Y. v.
Keene
Evans v. Kelly et al
855
219
449
1o2
114
F
Fargo v. Union Light Co
85o
Feeney v. Young
1o1
Feinberg v. Levine
666
Ferry v. Spokane, P. & S. Ry.
Co. et al
557
Fidelity Ins. Co. v. Anderson
88o
Fossali v. Gardella
561
Fox v. Arctic Co
96
Freeman v. Conover
756
G
Galveston, Harrisburg & San
Antonia Railway Co. v. Wood
bury
434
Gibson v. Gibson
8o4
Gilbert v. Minnesota
871
XXV
Globe Furniture Co. v. Wright..

Goodrich v. Edwards
Great Lakes Steamship Company
v. Geiger
Greenfield v. Miller
Grindell v. Bass
Grossbier v. Chicago, St. P., M.
& O. Ry. Co
1o6
855
539
572
752
888
H
Hall, Ex parte
Hall v. Orloff
Ham v. Massiot Real Estate Co.
Hardy v. Central London Rail
way Co
Harris v. State
Harrison v. Moncravie
Hartell v. Blackler
Harvey v. Griggs
Hawkins v. Ermatinger
Heidemann v. American District
Telegraph Co. et al
Helme v. Buckelew
Higbee Co. v. Jackson
Highrock v. Gavin
Hirsh v. Block
Hodge v. Wellman
Holland v. Maguire
Holmes v. Curl, et al
Horning v. District of Columbia
Howe v. Corey
Hungerford v. Curtis
i
; .
883
746
22o
758
574
344
1o5
455
333
893
22o
1o8
222
438
335
85o
92
325
433
231
',;
Illinois Steel Bridge Co. v. Wayland

347
a.
Jackson v. Jackson. 1
Jacob & Youngs v. Kent
Johnson v. H. M. Bullard Co
Jones v. Hicks
Johnson v. Mt. Baker Park Pres
byterian Church
575
875
93
435
751
TABLE OF CONTENTS
xxvi
K
Kelly & First State Bank v.

Rothsay
Keller v. Garneaux
Kennon v. Brooks-Scanlon Co.
Kingman v. New Bedford Home
for Aged, et al
Kingsworth v. Baker
Knocks v. Metal Package Cor
poration et al
1o8
88g
652
668
877
669
L
Langdon v. City of Walla Walla
Leonbruno v. Champlain Silk
Mills
Levenson v. Libman
Libman v. Levenson
Lincoln Trust Co. v. Williams
Building Corp
Lindahl v. Morse
Lipedes v. Liverpool & London
& Globe Insurance Co
Lovegrove v. Lovegrove
448
456
576
576
2o1
742
224
564
Mc
McCarty v. Wilson
McGill's Will. In re...
McGuire v. New York Rys. Co..
McKeller v. Yellow Cab Co.,
Inc.
McMorran Milling Co. v. Pere
Marquette Ry. Co
MacMillan Co. v. Johnson
454
81
665
743
99
649
M
Macon County v. Williams
Maggi v. Cassidy
Maine v. City of Des Moines. .
Maine v. Maryland Casualty
Company et al
Manufacturers' and Merchants'
Inspection Bureau v. Buech..
Mayer's Estate, In re
Massingham v. Illinois Central
Ry. Co
445
761
758
2o2
649
2o7
45o
McCready v. Nicholson
Margolis, In re
Masline v. N. Y., N. H. & H.
R. Co
Merchants' Loan & Trust Co. v.
Smictanka
Meachcr v. Kessler
Melicker v. Sedlacek
Mente v. Eisner
Miller v. State
Mitchell v. Clem
Mollinaux v. Union Electric Co.
Montague-O'Reilly Co. v. Mil
waukee
Morey v. Essex County
Mulville v. City of San Diego..
Mumpower v. Castle
Myers v. Eby
Myers v. Fortunato
866
865
874
854
451
2o9
1o3
115
563
762
5/o
115
353
44o
432
2oo
N
National League of Profession
al Baseball Clubs, et al. v. Fed
eral Baseball Club of Balti
more, Inc
Nelson v. Johnson
Newberry, Truman H., et al. v.
United States
Nicoll v. Pittsvein Coal Co
o67
645
861
873
0
Opinion of the Judges, In re. .
Opinions of the Justices, In re..
Orr v. Thompson, et al
O'Rourke v. Darbishire
Ownbey v. John Pierpont Mor
gan, et al
747
198
764
1oo
853
P
Page v. Camp Mfg. Co
Parke v. Bradley
Parrot & Co. v. Benson
Paust v. Georgian
Payne v. Industrial Comra
Pearson v. Pearson
People v. Barltz
451
213
739
446
577
654
663
TABLE OF CONTENTS
People v. Berridge
People v. Ford
People v. Nixon
People v. Strzempkowski
Petrelli v. West Virginia Coal
Co
People ex rel. Gamber v. Sholen
People ex rel. Troy Union Ry.
v. Mealy et al
Pittsburgh & West Va. Gas Co.
v. Nicholson
Poff v. Poff
Poulette v. Chainay
Prentiss v. Eisner
Prouse v. Industrial Commis
sion
Pugsley v. Smith
762
668
112
228
749
212
439
"6o
553
573
348
638
655
R
Ramsay, Ex parte
Rawlings v. General Trading Co.
Reiter v. Grober, et al
Rhode Island, State of, v.
Palmer
Riecke v. Anheuser-Busch Brew
ing Ass'n
Rosenholz v. Frank G. Shattuck Co
Russell's Executors v. Passmore
33o
65o
858
329
885
354
42o
S
Sager, Sweet and Edwards v.
Risk et al
Said v. Butt
Saint Paul, City of, v. Kessler.
Salt Lake City v. Western
Foundry Works
Sampliner v. Motion Picture
Patents Co
Scranton, City of, v. Public
Service Com
Seattle, City of, v. Peabody
Shreveport, City of, v. Marx
Silvers v. Howard et al
Smith v. Hines
657
56o
2oo
195
453
547
571
436
229
763
xxvii
Smith v. Odell, et al
Smith v. State
Solice v. State
Sorensen v. Sorensen
Southern Iowa Electric Co. v.
Chariton
Spence v. Fisher
Spokane Hotel Co. v. Younger.
Springfield, City of, v. Clement.
Springfield Consol. Ry. Co., Re
Staff v. Bemis Realty Co. et al.
Starling v. Newson
State v. Allen
State v. Hennessy
State v. Houghton
State v. Jones
State v. Lehigh Valley R. Co
State v. Nossaman
State v. Parry
State v. Pettit
State v. Roberts
State v. Ross
State ex rel. Alaska Pacific Nav
igation Co. v. Superior Court.
State ex rel. Klein v. Hillen
brand
State ex rel. Makris v. Superior
Court of Pierce County
State ex rel. Morris v. East
Cleveland
*
State Life Ins. Co. v. Allison
Sullivan v. Chadwick
Supreme Tribe of Ben-Hur v.
-Cauble
Swanner v. Conner Hotel Co...
T
Taft v. Bridgeton Worsted Co..
Tam Wa et al. v. Atkinson &
Dallas
Techt v. Hughes
Temple et al. v. State ex rel.
Russell, Governor
Terry Dairy Co.v. Nalley
Texas Co. v. Brown
Thompson v. Ill. Central Ry. Co.
Thornton v. Duffy
753
651
442
2o8
886
543
756
55o
849
217
573
79
746
1o2
66o
2o5
558
75o
662
98
565
54o
878
641
196
754
11o
759
224
877
566
1o4
667
664
2o9
343
735
TABLE OF CONTENTS
xxviii
Throop v. Western Indemnity

Co
444
Thurber v. Thurber
892
Toy v. dinger
755
Tuttle, Petition of
757
Villemin v. Brown
452
Vinci v. The People
655
Virginia Iron, Coal & Coke
Company v. Odle's Admr
568
W
U
Union & Mercantile Trust Co.
v. Hudson
Union Nat. Bank of Lowell v.
Nesmith
Union Pacific Railroad Co. v.
Burke
United States v. Bernstein
U. S. v. Lehigh Valley R. Co. . . .
U. S. v. L. Cohen Grocery Co. .
U. S. v. Peterson et al
U. S. v. Reading Co
U. S. v. Wheeler et al
U. S. v. Yount
U. S. ex rel. Milwaukee Social
Democratic Publishing Com
pany, Plaintiff in Error, v.
Postmaster-General Albert S.
Burleson
Universal Service Co. et al. v.
American Ins. Co
V
Vandalia Coal Co. v. The Spe
cial Coal and Food Commis
sion of Indiana
Vandalia Railroad Co. v. Schnull
Vanderbilt et al. v. Travelers'
Insurance Co.
Vanderburgh v. Vanderburgh...
Verdi, The
879
876
646
336
553
648
647
221
559
436
728
88o
416
745
225
658
653
Walls et al. v. Midland Carbon

Co. et al
Walsh v. Brewster
Wanberg v. National Union Fire
Ins. Co
Washington Ry. & Electric Co.
v. Stuart
Weed & Co. v. Lockwood
Weis Paper Mill Co. v. Indus
trial Commission et al
Western Union Telegraph Co.
v. Glover
West Yellow Pine Co. v. Steph
ens
Whitaker v. Lane
Wilhelm v. Herron
Willson v. McDonnell
Wilson et al. v. McCoy et al
Windsor, Town of, v. Whitney.
Wood's Lumber Co. v. Moore. .
Woolworth Co., F. W., v. Nel
son
Wrought Iron Range Co. v.
Boltz
555
855
341
453
337
232
227
228
344
93
95
2o4
328
216
1o6
447
Y
Yates v. Yates
York County Water Co., Re. . . .
Youchican v. Texas & P. Ry. Co.
Youman v. Commonwealth
Youmans v. Youmans
113
851
562
355
573
MICHIGAN
LAW
Vol. XIX.
REVIEW
NOVEMBER, 192o
No. 1
CONSTITUTIONAL LAW IN 1919-192o*

A REVIEW OF THE DECISIONS OF THE SUPREME COURT OF
THE UNITED STATES ON CONSTITUIONAL QUESTIONS
DURING THE OCTOBER TERM, 1919
THIS review aims to include all the decisions on constitutional
questions rendered by the Supreme Court of the United States
during the October Term of court which began in October, 19 19, and
ended in June, 1920.1 The treatment for the most part contents itself
* This is the first of a series of three papers on this topic. The others
will appear in succeeding issues.
1 Similar reviews of decisions from 1914 to 1919 have appeared in the
Amer1can Pol1t1cal Sc1ence Rev1ew, XII, 17-49, 427-457, 64o-666, XIII,
47-77, 229-25o, 6o7-633, and XIV, 53-73- That journal plans to continue to
review each year the more important decisions of the Supreme Court. It
also publishes in nearly every issue a review called "Judicial Decisions on
Public Law." Recent ones by Robert E. Cushman will be found in volume
XI, pp. 545-555- 72o-73o, volume XII, pp. 95-1o5, 272-287, 475-488, 685-694,
volume XIII, pp. 1oo-1o7, 281-292, 451-459, and volume XIV, pp. 3o3-316,
461-47o. In the Record of Political Events published as a supplement to each
September issue of the Pol1t1cal Sc1ence Quarterly is a section called "The
Federal Judiciary" which summarizes briefly the important decisions of the
Supreme Court during the preceding year. In 35 Pol. Sc1. Quart. 411, is an
article called "The Supreme Court and the Constitution, 1919-192o," which
reviews the important decisions of the past year. The Quarterly plans to
publish similar articles in each September issue. In the Amer1can Bar
Assoc1at1on Journal, volume VI, pp. 22-33, is a "Review of Recent Supreme
Court Decisions" by S. S. Gregory, dealing with selected decisions. It is an
nounced that similar reviews will be contained in the succeeding issues. Each
issue of the Bullet1n of the Nat1onal Tax Assoc1at1on contains a depart
ment called "Decisions and Rulings" which reviews a large number of de
cisions on taxation. This is not confined to decisions of the Supreme Court.
MICHIGAN LAW REVIEW

with exposition. The footnotes give references to articles and edi
torial notes in recognized law journals commenting on the cases here
reviewed and on the more important constitutional decisions of other
courts.2 The classification of the cases and the arrangement of
topics are not satisfactory, but no alternative seems distinctly su
perior. A classification on the basis of the clauses of the Constitu
tion under which the cases arise would have decided demerits. Under
the Fourteenth Amendment we should have to jumble together com
plaints against judicial procedure, tax laws, police measures, exer
cises of eminent domain and other governmental action. It seems
preferable to follow established distinctions between various govern
mental powers and to let them set the plan for the main structure
of the classification.
I.
M1scellaneous Nat1onal Powers
The validity and the effect of the Eighteenth Amendment3 was

passed upon in two cases. Hawke v. Smith*' decided that a state
Beginning with volume 33, the Harvard Law Rev1ew contains a series of
articles called "The Progress of the Law", written by professors in the Har
vard Law School. Cases on police power and administrative law will be found
in Beale, "Municipal Corporations" (XXXIII, 1o58) ; cases on taxation in
Beale, "Conflict of Laws" (XXXIII, 1), and Warren, "Wills and Adminis
tration" (XXXIII, 556) ; and cases on the jurisdiction and procedure of
courts in Beale, "Conflict of Laws" (XXXIII, 1), and Scott, "Civil Pro
cedure" (XXXIII, 236).
' It is intended to include references to all articles and notes in law jour
nals which deal with any question of public law. References given without
introduction are to discussions of the case considered in the text. For refer
ence to articles in other than technical law journals, the issues of the Amer1
can Econom1c Rev1ew, Amer1can H1stor1cal Rev1ew, and Amer1can Pol1t
1cal Sc1ence Rev1ew should be consulted. Each issue of these reviews con
tains a list of articles in periodicals, a considerable number of which have to
do with matters out of which spring issues of constitutional law.
8 "Section 1. After one year from the ratification of this article the man
ufacture, sale, or transportation of intoxicating liquors within, the importation
thereof into, or the exportation thereof from the United States and all terri
tory subject to the jurisdiction thereof for beverage purposes is hereby
prohibited.
Section 2. The Congress and the several states shall have concurrent
power to enforce this article by appropriate legislation."
'253 U. S.
, 4o Sup. Ct. 495 (192o). See also Hawke v. Smith, 253
U. S.
, 4o Sup. Ct. 498 (192o), applying the same principle to the Suffrage
CONSTITUTIONAL LAW IN 1919-192o
constitution cannot authorize a referendum to the electorate from the

action of a state legislature in ratifying an amendment to the federal
Constitution. The power to ratify was said to have its source
in the federal Constitution. The Fifth Article which provides for
amendments is a grant of authority by the people to Congress. Con
gress is restricted to the choice between two methods of ratification.
It may send an amendment to state legislatures or to state conven
tions. When the Constitution uses the term "state legislature" it
means the representative law-making body and not the general elect
orate. What the term meant when the Constitution was adopted, it
means still. The argument that the Constitution looks to ratification
by legislative action in the states is unsound. "Ratification by a
state of a constitutional amendment is not an act of legislation within
the proper sense of the word. It is but the expression of the assent
of the state to a proposed amendment." Legislatures get their au
thority to ratify, not from the people of the state, but through the
grant to Congress by the people of the United States. A case5 which
allowed a state with the assent of Congress to apply the 'referendum
to an act of the state legislature fixing the boundaries of congres
sional districts was said to be inapposite, since such action is legisla
tive in character while the ratification of an amendment is not. "The
choice of means of ratification was wisely withheld from conflicting
action in the several states." Otherwise there might be "endless
confusion in the manner of ratification of federal amendments." It
is apparent that what Mr. Justice Day says about the referendum
is applicable to other state attempts to restrict state legislatures in
ratifying amendments to the federal Constitution, and that the Ten
nessee legislature was justified in acting on the Nineteenth Amend
ment in disregard of the requirement of the Tennessee constitution
that an election of members of the legislature must intervene between
Amendment. See 91 CfiNT. L. J. 1. For discussions of the referendum ques
tion prior to the Supreme Court decision, see William Howard Taft, "Can
Ratification of an Amendment to the Constitution Be Made to Depend on a
Referendum?", 28 Yale L. J. 821, and notes in 8 Cal1f. L. Rev. 185, 89 Cent.
L. J- 334. 19 Colum. L. Rev. 5o2, 4 Cornell L. Q. 195. 33 Harv. L. Rev. 287,
23 Law Notes 62, 1o2, 119, 24 Law Notes 64, 4 Mass. L. Q. 236, 342, and
18 M1ch. L. Rev. 51, 698. Some of the discussions cited in note 6, infra, also
consider the referendum question.
8Davis v. Hildebrant, 241 U. S. 565, 36 Sup. Ct. 7o8 (1916).
MICHIGAN LAW REVIEW
the submission of a proposed amendment by Congress and its con

sideration by the state legislature.
The Eighteenth Amendment as a whole was sustained in Rhode
Island v. Palmer.9 The court introduced a novelty into its practice
by contenting itself with a statement of its conclusions and refrain
ing from giving its reasons. This is often done in so-called mem
orandum opinions, but these have heretofore been confined to ques
tions of minor importance or to issues already well settled. The
validity of the Amendment was contested on the ground of alleged
defects in the methods of its submission and adoption and on the
basis of objections to its substance. Hawke v. Smith1 was cited for
the affirmation of the court that a state cannot apply a referendum
8253 U. S.
, 4o Sup. Ct. 486 (192o). See 91 Cent. L. J. 1. For dis
cussions of the validity of the Amendment prior to the Supreme Court de
cisions, see Everett V. Abbott, "Inalienable Rights and the Eighteenth Amend
ment", 2o Colum. L. Rev. 183. Lucilius A. Emery, "The Eighteenth Amend
ment to the Constitution of the United States", 13 Ma1ne L. Rev. 121, William
L. Frierson, "Amending the Constitution of the United States", 33 Harv. L.
Rev. 659, Frank W. Grinnell, "Limitations on the Kind of Amendments to the
Federal Constitution Provided for by Article V", 5 Mass. L. Q. 116, Fred B.
Hart, "The Amendatory Power Under the Constitution, Particularly with
Reference to Amendment 18", 9o Cent. L. J. 229, Howard C. Joyce, "The
Prohibition Amendment as an Encroachment on the Inherent Rights of the
States", 23 Law Notes 26, William L. Marbury, "The Limitations Upon the
Amending Power", 33 Harv. L. Rev. 223, D. O. McGovney, "Is the Eighteenth
Amendment Void Because of Its Contents?", 2o Colum. L. Rev. 499, Fred
H. Peterson, "Modern Views on Amending the Constitution", 89 Cent. L. J.
188, George D. Skinner, "Intrinsic Limitations on the Power of Constitu
tional Amendment", 18 M1ch. L. Rev. 213, Wayne B. Wheeler, "The Con
stitutionality of the Constitution is Not a Justiciable Question", 9o Cent.
L. J. 152, Justin DuPratt White, "Is There an Eighteenth Amendment?",
5 Cornell L. Q. 113, 23 Law Notes 188, George Washington Williams, "What,
if Any, Limitations Are There Upon the Power to Amend the Constitution
of the United States?", 6 Va. L. Reg. n.s. 161, and notes in 18 M1ch. L. Rev.
155, 7oo. For discussions of the interpretation of the second section of the
Amendment see Minor Bronaugh, "Concurrent Jurisdiction", 23 Law Notes
85, O. K. Cushing, " 'Concurrent Power' in the Eighteenth Amendment", 8
Cal1f. L. Rev. 2o5. Wayne B. Wheeler, "Which Definition of 'Concurrent
Power' Will the Supreme Court Choose ?", 9o Cent. L. J. 283. " 'Concurrent
Jurisdiction' Not the Same as Concurrent Power", 22 Law Notes 1o7, and
note in 33 Harv. L. Rev. 968.
' Note 4, supra.
to the rejection or ratification of an amendment. An earlier case9 on

the vote necessary to pass a bill over the President's veto was ad
duced for the decision that an amendment may be proposed by a
vote of two-thirds of the members present in each house, provided
there is a quorum. It is not necessary to have "a vote of two-thirds
of the entire membership, present and absent." The proposal by
the requisite vote "sufficiently shows that the proposal was deemed
necessary by all who voted for it. An express declaration that they
regarded it as necessary is not essential." The objections urged
against the substance of the amendment were that it was an "addi
tion" and not an "amendment" because not germane to anything in
the original Constitution, that it was legislation and hence improper
for inclusion in the Constitution, and that it interfered with the
powers reserved to the States by the Tenth Amendment and was a
step towards the destruction of the federal system ordained by the
Constitution and therefore not within the amending power. Without
specifying these objections, the court through Mr. Justice Van
Devanter states succinctly that the prohibition provision of the
Amendment is within the amending power, is now a part of the Con
stitution and "must be respected and given effect the same as other
provisions of that instrument," is "operative throughout the entire
territorial limits of the United States" and "of its own force invali
dates every legislative Act, whether by Congress, by a state Legisla
ture, or by a territorial assembly, which authorizes or sanctions what
the section forbids."
The decision on the validity of the Amendment was unanimous.
Mr. Justice McReynolds concurred in the disposition of the cases,
but declined to express himself on the effect of the amendment on
the power of the states. Mr. Justice McKenna went further and
disagreed with the interpretation of the Amendment announced by
the majority. This interpretation was put by Mr. Justice Van
Devanter as follows :
"The second section of the amendmentthe one declaring
'The Congress and the several states shall have concurrent
power to enforce this article by appropriate legislation'does
8Missouri Pacific Ry. v. Kansas, 248 U. S. 279, 39 Sup. Ct. 93 (1919).
MICHIGAN LAW REVIEW

not enable Congress or the several states to defeat or thwart
the prohibition, but only to enforce it by appropriate legis
lation.
"The words 'concurrent power', in that section, do not mean
joint power, or require that legislation thereunder by Con
gress, to be effective, shall be approved or sanctioned by the
several states or any of them; nor do they mean that the
power to enforce is divided between Congress and the several
states along the lines which separate or distinguish foreign and
interstate commerce from intra-state affairs.
"The power confided to Congress by that section, while not
exclusive, is territorially coextensive with the prohibition of
the first section, embraces manufacture and other intrastate
transactions as well as importation, exportation and interstate
traffic, and is in no wise dependent on or affected by action or
inaction on the part of the several states or any of them."
"The Chief Justice, in a separate concurring opinion confined to the

interpretation of the Amendment, expressed his profound regret that
the court should have been content to state its conclusions without
adding its reasons. He in effect construes "concurrent power" to
mean "equal and independent power", and insists that the opposite
construction contended for would result in a paramount power of
Congress or the states and not a concurrent power, and would also
in effect nullify the amendment. In elaboration he adds :
"Comprehensively looking at all these contentions, the con
fusion and contradiction to which they lead, serve in my judg
ment to make it certain that it cannot possibly be that Congress
and the states entered into the great and important business
of amending the Constitution in a matter so vitally concern
ing all the people solely in order to render governmental action
impossible, or, if possible, to so define and limit it as to cause
it to be productive of no results and to frustrate the obvious
intent and general purpose contemplated. It is true indeed
that the mere words of the second section tend to these results,
but if they be read in the light of the cardinal rule which
compels a consideration of the context in view of the situation
and the subject with which the amendment dealt and the pur
pose which it was intended to accomplish, the confusion will

be seen to be only apparent."
Mr. Justice McKenna's disagreement was based largely on the
normal and natural meaning of the words "concurrent power" which
the Chief Justice conceded. He refused to assent to the proposition
that the interpretation put upon concurrent power by him would
practically nullify the amendment, saying hopefully :
"The conviction of the evils of intemperancethe eager
and ardent sentiment that impelled the amendment, will impel
its execution through Congress and the States. It may not
be in such legislation as the Volstead Act with its y2 of 1 per
cent, of alcohol or in such legislation as some of the states
have enacted with their 2.75 per cent, of alcohol, but it will be
a law that will be prohibitive of intoxicating liquor for bev
erage purposes. It may require a little time to achieve, it
may require some adjustments, but of its ultimate achieve
ment there can be no doubt."
To this was added the comment that, if difficulties result from
enforcing the amendment according to its terms, they are nothing
with which the court has to do. The learned dissentient declares his
belief that the framers of the amendment "meant what they said
and that they must be taken at their word." The word "concurrent",
he insists, has the "inexorable requirement of coincident or united
action, not alternative or emergent action to safeguard against the
delinquency of Congress or the states." His analysis of the situation
resulting from the amendment is as follows :
"If it be said that the states get no power over prohibition
that they did not have before, it cannot be said that it was
not preserved to them by the amendment, notwithstanding the
policy of prohibition was made national, and besides, there
was a gift of a power to Congress that it did not have before,
a gift of a right to be exercised within state lines, but with
the limitation or condition that the powers of the states should
remain with the states and be participated in by Congress
only in concurrence with the states, and thereby preserved
from abuse by either, or exercise to the detriment of prohibi
MICHIGAN LAW REVIEW

tion. There was, however, a power given to the states, a
power over importations. This power was subject to concur
rence with Congress and had the same safeguards."
The remaining question in the case was whether the power to en

force the prohibition of the first section of the Amendment justified
Congress in putting the ban on liquor containing as little as one-half
of one per cent, of alcohol by volume. The argument against this
low limit was that, since the first section prohibited only intoxicating
liquors, the enforcing legislation must permit the sale and manu
facture of non-intoxicating liquors. Otherwise the restrictive word
"intoxicating" in the first section would be nugatory. The case sus
taining the one-half of one per cent, limit in the War Prohibition
Act was sought to be distinguished on the ground that the war power
is general and undefined, while the power under the Amendment
is confined to enforcing the prohibition against liquor in fact in
toxicating. But the court, without stating or discussing these specific
contentions, adduced the War Prohibition Cases* for the conclusion
that, "while recognizing that there are limits beyond which Congress
cannot go in treating beverages as within its power of enforcement,
we think those limits are not transcended by the provision of the
Volstead Act".10
The War Prohibition Act of 1918, passed ten days after the
armistice, came before the court in Hamilton v. Kentucky Distilleries
& Warehouse Co.,11 and was unanimously sustained. It was inter
preted to apply only to intoxicating liquors. Mr. Justice Brandeis
said that "prohibition of the liquor traffic is conceded to be an appro
priate means of increasing our war efficiency". He recognized that
"the war power of the United States, like its other powers and like
the police powers of the states, is subject to applicable constitutional
limitations", but he laid down that "the Fifth Amendment imposes
8 Ruppert v. Caffey, note 12, infra.
" For an article on the Nineteenth Amendment, see Emmet O'Neal, "The
Susan B. Anthony Amendment. Effect of Its Ratification on the Rights of
the States to Regulate and Control Suffrage and Elections", 89 Cent. L. J.
169, 6 Va. L. Rev. 338.
"251 U. S. 146, 4o Sup. Ct. 1o6 (1919). See 33 Harv. L. Rev. 585, 6o8,
18 M1ch. L. Rev. 7o6, and 29 Yale L. J. 437, 44o. For discussions prior to the
decision, see 8 Cal1f. L. Rev. 44, 18 M1ch. L. Rev. 159, and 29 Yale L. J. 113.
in this respect no greater limitation upon the national power than

does the Fourteenth Amendment upon state power". The question
whether the immediate and absolute destruction of the value of in
toxicating liquors could be caused without compensation was dis
missed from consideration by pointing out that the Act gave seven
months and nine days in which to dispose of liquors on hand. This
was held to be a reasonable period. The fact that liquor is not
readily marketable until reasonably aged was called merely an in
convenience to the owner attributable to the inherent character of
the property, which inconvenience is not a taking of property in
the constitutional sense. On the question whether the Act had be
come void by the passing of the war emergency, the court confined
itself to declaring that it was not convinced that the emergency had
passed when the suits in question were begun. The discussion on
this point recognizes that change of circumstances may operate to
render constitutionally unenforceable a statute concededly valid when
passed, and assumes for the purpose of the case that the principle
is applicable to exercises of the war power. But, in view of the hold
ing that the Act had not yet expired by its terms and of the facts
that the treaty of peace had not yet been concluded, that the rail
roads were still under national control by virtue of the war powers,
and other facts of public knowledge, the court found itself unable to
conclude that the Act had ceased to be valid. The contention that
the Eighteenth Amendment impliedly guaranteed immunity from
prohibition until one year after its ratification was dismissed by
pointing out that it would, if sound, emasculate the war power even
if hostilities were at their height and would also release the grasp of
state prohibition.
The war power was extended still further in Ruppcrt v. Caffey,12
which by a vote of five to four sustained the Volstead Act of October
28, 1919, with its suppression of the manufacture and sale of liquor
conceded by motion to dismiss to be non-intoxicating. Mr. Justice
McReynolds, for the minority, declared that it was notorious that the
war emergency had passed when the statute was enacted, at least so
"251 U. S. 264, 4o Sup. Ct. 141 (192o). See 33 Harv. L. Rev. 585, 6o8, 24
Law Notes 25, and 5 Va. L. Reg. n. s. 874. Justices Day, Van Devanter, Mc
Reynolds and Clark dissented.
MICHIGAN LAW REVIEW
IO
far as any justification for the suppression of non-intoxicating liquor

is concerned. He implied that the statute thus enforced violated
both the Fifth and Tenth Amendments. Calling the suppression of
non-intoxicants the exercise of a power implied from an implied
power, he queried: "If all this be true, why may not the second
implied power engender a third under which Congress may forbid
the planting of barley or hops, the manufacture of bottles or kegs,
etc. ?" He insisted that there is a distinction between the control
which the states may exercise over non-intoxicants by virtue of their
inherent power and that which may be wielded by Congress under
authority inferred from the war power. For the majority, Mr. Jus
tice Brandeis answered that the argument that one implied power
may not be grafted on another implied power is a mere matter of
words. The "war power over intoxicating liquors extends to the en
actment of laws which will not merely prohibit the sale of intoxi
cating liquors but will effectually prevent their sale." All the powers
of Congress are express powers. The proper distinction is between
"specific" and "general" powers. Thus the war power over intoxi
cating liquors is as full and complete as the police powers of the
states, and the principle that the state may prohibit near beer as a
means of suppressing the genuine article applies also to the war
power of Congress. On the question of the absence of compensa
tion for the loss occasioned by the fact that the Volstead Act was in
effect from the moment of its enactment, Mr. Justice Brandeis said
only that "here as in Hamilton v. Kentucky Distilleries & Warehouse
Co., there was no appropriation of private property, but merely a
lessening of value due to a permissible restriction imposed upon
its use."
The constitutionality of the Selective Service Law and the Espi
onage Act was reaffirmed in O'Connell v. United States13 on the
authority of cases decided after the writ of error in the O'Connell
case was sued out. The opinion was confined to questions of inter
pretation and of federal practice. A conspiracy to obstruct recruit
ing and enlistment by persuasion was held to be a crime within the
latter Act, and the former was found to cover false statements as to
fitness or liability for service as well when made by private persons
"253 U. S.
, 4o Sup. Co. 444 (192o).
II
as by officers charged with the enforcement of the law. In three im

portant cases14 sustaining convictions under the Espionage Act or its
amendment of May 16, 1918, there was a difference of opinion as to
the scope and application of the First Amendment guaranteeing free
dom of speech and of the press. It was not denied that the statute
was constitutional if properly restricted. These cases will be con
sidered in a later section dealing with immunities of persons charged
with crime.15
The treaty-making power and the power of Congress to enforce
treaties by legislation was questioned in Missouri v. Holland.1*
Great Britain and the United States had made a treaty providing for
closed seasons and other protection for migratory birds and engag
ing to enact legislation to carry the treaty into effect. Congress
thereafter passed the Migratory Bird Treaty Act. Missouri brought
a bill to enjoin the federal game warden from enforcing the act and
the authorized regulations of the Secretary of Agriculture, claiming
that such enforcement encroached on the powers reserved to it by
the Tenth Amendment. Mr. Justice Holmes, for an unanimous
court, laid down that the only question was the validity of the treaty.
"If the treaty is valid there can be no dispute about the validity of
the statute under Article 1, Section 8, as a necessary and proper
means to execute the powers of the Government." The discussion
of the specific issue before the court is prefaced by the statement :
"Abrams v. United States, 25o U. S. 616, 4o Sup. Ct. 17 (1919), Pierce
v. United States, 253 U. S. 239, 4o Sup. Ct. 2o5 (192o), Schaefer v. United
States, 251 U. S. 466, 4o Sup. Ct. 259 (192o).
" For notes on Northern Pacific Ry Co. v. North Dakota, 25o U. S. 135,
39 Sup. Ct. 5o2 (1919), and Dakota Central Telephone Co v. South Dakota,
25o U. S. 163, 39 Sup. Ct. 5o7 (1919), holding that federal control of railroads
under the war power precludes the operation of state rate regulations, see 19
Col. L. Rev. 489, 33 Harv. L. Rev. 94, 115, and 68 U. Pa. L. Rev. 68. See
also Henry Upson Sims, "The Power of the Federal Government to Extend
the Recent War Acts of Congress Into Times of Peace", 5 Va. L. Rev. 87.
For incidents of federal control of the railroads, see 2o Colum. L. Rev. 352,
5o1. For injunctions under Lever Act against the coal strike, see 5 Cornell
L. Q. 184.
"252 U. S. 416, 4o Sup. Ct. 382 (192o). See 2o Colum. L. Rev. 692 and
-6 Va. L. Reg. n. s. 214. For discussions prior to the decision see 8 Cal1f.
L. Rev. 177, 33 Harv. L. Rev. 281, 312, 23 Law Notes 148, 68 U. Pa. L. Rev.
16o, and 29 Yale L. J. 445.
12
MICHIGAN LAW REVIEW

"Acts of Congress are made the supreme law of the land
only when made in pursuance of the Constitution, while
treaties are declared to be so when made under the authority
of the United States. It is open to question whether the au
thority of the United States means more than the formal acts
prescribed to make the convention. We do not mean to imply
that there are no qualifications to the treaty-making power;
but they must be ascertained in a different way."
What this different way is is not definitely set forth, but the treaty
in question was found to involve "a national interest of very nearly
the first magnitude." The inference is that the test of the validity
of a treaty is an adequate national interest in the subject matter
with which it deals. The fact that the states are individually in
competent to deal with the subject matter seems to be regarded as
important. "It is not lightly to be assumed that, in matters requiring
national action, 'a power which must belong to and sorhewhere re
side in every civilized government' is not to be found." Then fol
lows a plea for a progressive recognition of new national needs:
"When we are dealing with words that are also a con
stituent act, like the Constitution of the United States, we
must realize that they have called into life a being the devel
opment of which could not have been foreseen completely by
the most gifted of its begetters. It was enough for them to
realize or to hope that they had created an organism ; it has
taken a century and has cost their successors much sweat and
blood to prove that they created a nation. The case before
us must be considered in the light of our whole experience
and not merely in that of what was said a hundred years ago.
The treaty in question does not contravene any prohibitory
words to be found in the Constitution. The only question
is whether it is forbidden by some invisible radiation from
the general terms of the Tenth Amendment. We must con
sider what this country has become in deciding what that
amendment has reserved."
The opinion makes clear that a treaty on any subject of national
interest has nothing to fear from any reserved powers of the states.
13
Its hint that there may be no other test to be applied than whether
the treaty has been duly concluded indicates that the court might
hold that specific constitutional limitations in favor of individual
liberty and property are not applicable to deprivations wrought by
treaties. It would be going a step further to extend the same im
munity to legislation enforcing treaties. It is of course not safe to
take expressions in a judicial opinion as the considered judgment of
all the members of the court. Missouri's contention in the principal
case received the approval of Justices Pitney and Van Devanter
who dissented, but without giving their reasons.17
In the endeavor to allow state workmen's compensation laws to
apply to injuries within the admiralty and maritime jurisdiction
vested in the federal courts, Congress in 1917 added to the admiralty
provision of the Judicial Code a clause saving "to claimants their
rights and remedies under the workmen's compensation laws of any
state." This provision a majority of the Supreme Court declared
unconstitutional in Knickerbocker Ice Co. v. Stewart. The basis
of the decision seems to be a belief that the Constitution somehow
adopted and established the approved rules of general maritime law
and that such power as Congress has under the necessary and proper
11 See a note in 29 Yale L. J. 114 on the effect of a treaty on a state tax
law. Articles on the League of Nations and the Constitution will be found
in 89 Cent. L. J. 21, 7o, 79, 93, 113, 226, 244, and 37o. See also Edward S.
Corwin, "The Power of Congress to Declare Peace", 18 M1ch. L. Rev. 669,
John M. Matthews, "The League of Nations and the Constitution", 18 M1ch.
L. Rev. 378, Albert H. Washburn, "Treaty Amendments and Reservations",
5 Cornell L. Q. 247, and Quincy Wright, "Treaties and the Constitutional
Separation of Powers in the United States", 12 Am. J. Int. Law 64, "The
Legal Nature of Treaties", 13 Am. J. Int. Law 7o6, "The Constitutionality of
Treaties", 13 Am. J. Int. Law 242, "Conflicts of International Law with Na
tional Laws and Ordinances", 11 Am. J. Int. Law 1, "Amendments and Res
ervations to the Treaty", 4 M1nn. L. Rev. 14, and "Validity of the Proposed
Reservations to the Treaty", 2o Colum. L. Rev. 121.
"253 U. S.
, 4o Sup. Ct. 438 (192o). The majority opinion is by Mr.
Justice McReynolds. The dissenting Justices are Holmes, Pitney, Brandeis
and Clarke. See 8 Cal1f. L. Rev. 339, 2o Colum. L. Rev. 685, 18 M1ch. L.
Rev. 793, and 29 Yale L. J. 925. For discussions prior to the decision see 8
Cal1f. L. Rev. 169, 5 Cornell L. Q. 275, and 4 M1nn. L. Rev. 444. A few
months before the Knickerbocker case, the Supreme Court had held that the
amendment in question is not retroactive. Peters v. Vesey, 251 U. S. 121,
4o Sup. Ct. 65 (1919). See 29 Yale L. J. 363.
14
MICHIGAN LAW REVIEW
clause to add to or change the maritime law is limited to the attain

ment of the object of relieving "maritime commerce from unneces
sary burdens and disadvantages incident to discordant legislation"
and the establishment "so far as practicable" of "harmonious and
uniform rules applicable throughout every part of the United States."
Instead of doing this Congress was thought to have attempted to
delegate its powers to the states, which under recognized principles
it cannot do. For the minority Mr. Justice Holmes insisted that,
since the state compensation law in question was in force when Con
gress passed the act of 19 17, it should be regarded as having been
adopted by Congress as part of the federal maritime law. He was
further of opinion that it would not be a delegation of power to the
states if Congress adopted in advance their future compensation
laws, just as Congress has provided that the practice in the federal
courts shall conform as near as may be to the practice in the state
courts ; but he thought it not necessary to go so far in order to allow
the application of the law before the court. He denied that the Con
stitution itself adopted any maritime law by extending the federal
judicial power to cases of admiralty and maritime jurisdiction, and
he found no implication in the Constitution that such maritime law as
Congress may establish must be uniform throughout the United
States. It would be extravagant, he declared, to read into the silence
of the Constitution "a requirement of uniformity more mechanical
than is educed from the express requirement of equality in the Four
teenth Amendment."19
The power of Congress to attach conditions to the appropriation
of money to pay private claims raised a sharp difference of opinion
in Calhoun v. Massie.20 The court had previously sustained a clause
in the statute providing that not more then twenty per cent, of the
"For a note on Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 38
Sup. Ct. 5o1 (1918), holding the common-law rules of liability inapplicable to
an injury within the admiralty jurisdiction, see 33 Harv. L. Rev. 3oo, 3o9.
For a note on Union Fish Co. v. Erickson, 248 U. S. 3o8, 39 Sup. Ct. 112
(1919), holding a state statute of frauds inapplicable to a maritime contract,
see 8 Cal1f. L. Rev. 114.
"253 U. S.
, 4o Sup. Ct. 474 (192o). Justices McKenna. Van Devanter, Pitney and McReynolds dissent. The same statute was declared to
he valid in Newman v. Moyers, 252 U. S.
, 4o Sup. Ct. 478 (192o).
15
money paid by the government should be paid to or received by any

attorney on account of services rendered in connection with the
claim. In that case21 Mr. Justice McKenna had said that if the judg
ment of the attorney against his client sought to reach only assets
other than those received from the Government, "the limitation in
the act appropriating the money to 2o per cent, as the amount to be
paid to an agent or attorney would have no application or be in
volved." In the principal case, Calhoun who had received from the
Government twenty per cent, of the amount awarded to his client
Massie, sued in a state court to get an additional thirty per cent,
under a contract made before the passage of the appropriation bill
containing the limitation previously referred to and- also this addi
tional one :
"It shall be unlawful for any agent or agents, attorney or
attorneys to exact, collect, withhold or receive any sum which
in the aggregate exceeds twenty percentum of the amount of
any item appropriated in this bill on account of services ren
dered or advances made in connection with said claim, any
contract to the contrary notwithstanding."
Massie insisted that this clause protected him from paying from
any source more than twenty per cent, of what he received from the
government, and a majority of the Supreme Court agreed with him.
Mr. Justice Brandeis found the clause in question so clear as to leave
"no room for construction." Mr. Justice McReynolds, for the
minority, without quoting or discussing the paragraph in question,
rebuked his colleague for not quoting or discussing the previous
dictum of Mr. Justice McKenna by saying that "the result is neces
sarily injurious both to the court and to the public." It is doubtful
whether this dictum was intended, as Mr. Justice McReynolds as
sumes, to apply to the paragraph of the statute adduced by Mr.
Massie. If it did, it is pretty obviously erroneous. The dissent is
not confined to the question of construction, though Mr. Justice Mc
Reynolds says nothing more specific on the constitutional issue than
to remind us that "the Fifth Amendment was intended to protect the
individual against arbitrary exercise of federal power" and that its
" Capital Trust Co. v. Calhoun, 25o U. S. 2o8, 39 Sup. Ct. 486 (1919)-
16
MICHIGAN LAW REVIEW
"inhibition protects every man in his right to engage in honest and

useful work for compensation." His earlier mention of the fact that
the contract in question was made prior to the statute regulating the
fee to be charged leaves it doubtful whether his dissent would
apply to such a regulation that is wholly prospective. He rests his
objections wholly on grounds of due process, without touching on
the possible point that the regulation of private contracts goes be
yond the field of federal power and poaches on the reserved preserves
of the states. For the majority, Mr. Justice Brandeis posits the con
stitutionality of the statute on the fact that the appropriation to pay
the claim is a condition precedent to liability on the part of the client
to the attorney. Calhoun's chance to get anything is dependent on
congressional grace or favor. Therefore the favor may be extended
on terms. He has no constitutional right to bite the hand which
feeds him. Since he undertook to get his client's claim approved
by the government, his assent to the terms under which the approval
was given may be implied. He is also estopped from repudiating
the statute after he has received his authorized twenty per cent, under
it. Of these "special reasons", Mr. Justice McReynolds says that
one "can only serve to mislead" and the other "lacks substance and
can serve no good purpose". Both, he insists, assume the construc
tion and the constitutionality of the statute. Cases cited in the ma
jority opinion "as authority for such oppressive legislation" are said
to "give it no support," and it is pointed out wherein the statutes
therein sustained stop short of the one before the court. Mr. Justice
McReynolds takes much more pains to prove Mr. Justice Brandeis
wrong than to prove himself right. His peppery opinion gives in
teresting evidence of the human factors that enter into the solution
of constitutional issues.
In Ennen v. United Slates22 the answer to an interesting constitu
tional question is assumed without discussion or citation of au
thority. The Enabling Act under which New Mexico was admitted
to the Union granted the new state certain public lands on specified
trusts. The state later proposed to spend three per cent, of the pro
ceeds from the sale of the lands in advertising the advantages of the
state as a place to live in. The District Court thought this a wise
"251 U. S. 41, 4o Sup. Ct. 75 (1919).
17
administration of the trust as it tended to enhance the price of the

lands. This, the Supreme Court did not deny, but it held neverthe
less that the United States as grantor might, as it did, reserve con
trol over the matter and exact the performance of the conditions on
which the lands were given and held. This case, like the preceding
one, illustrates the power of the United States to keep a string
attached to its grants and to continue to pull the string even though
all but the string has passed from its control. In this respect the case
differs from stipulations in enabling acts which seek to continue
control over the public, governmental powers of states admitted
thereunder.23
The other cases on national power are of minor importance, with
the exception of those involving questions of taxation and of com
merce which will be treated in succeeding sections. National con
trol over the Indians, was sustained in two decisions. United States
v. Board of Commissioners2* sanctioned the authority of the United
States, as guardian of the Indians to bring a suit in the federal courts
to protect lands owned by non-competent Indians from illegal state
taxes. The fact that the lands were taxable by the state after proper
assessment was held insufficient to deprive the United States of its
duty and right to ensure that its wards are not illegally deprived of
the property rights previously conferred upon them. This same
benevolent guardianship of the Indians arose also in Nadeau v. Union
Pacific R. Co.,25 which affirmed a grant to a railroad in 1862 of a
four hundred foot strip of land through an Indian reservation. The
tract was said to be "part of the domain held by the tribe under the
ordinary Indian claimthe right of possession and occupancywith
fee in the United States." On the authority of earlier decisions it
was declared that "the power of the United States, as guardian for
the Indians, to legislate in respect to such lands is settled." Patents
issued subsequent to the grant to the railroad, without expressly re
serving a right of way to the road, were held to give no rights to the
strip in question. Any claim based on occupancy or possession was
See Coyle v. Smith, 221 U. S. 559, 31 Sup. Ct. 688 (1911). For an article
bearing on the general question involved in the Ervien case, see Andrew A.
Bruce, "State Socialism and the School Land Grants", 33 Harv. L. Rev. 4o1.
"251 U. S. 128, 4o Sup. Ct. 1oo (1919).
"253 U. S.
, 4o Sup. Ct 57o (192o).
MICHIGAN LAW REVIEW

said to be precluded by earlier decisions. Mr. Justice Clarke dis
sented, and Justices Holmes, Pitney and Brandeis did not sit.
While it is not clear that any constitutional issue was directly in
volved in Burnap v. United States,"9 Mr. Justice Brandeis in the
course of the opinion pointed out that Congress might invest the
appointment of inferior officers either in the President alone, in the
courts of law, or in the heads of departments. The power to remove
was declared to be, "in the absence of statutory provision to the con
trary, an incident of the power to appoint." The term "head of a
department", as used in the statute, was said to mean "the Secretary
in charge of a great division of the executive branch of the govern
ment, like the State, Treasury, and War, who is a member of the
Cabinet", and not to "include heads of bureaus of lesser divisions."27
Another case involving the application of an uncontested constitu
tional principle is Evans v. National Bank of Savannah.21 It was
agreed that the powers of a national bank in respect to discounts and
the rate to be charged is subject to the control of Congress and not
of the states. But Congress had prescribed that the rate to be
charged should be that "allowed by the laws of the state or territory
where the bank is located, and no more." The application of this
provision to the case at bar depended upon a combination of ele
mentary mathematics and advanced jurisprudence. The Georgia
statute forbade a rate of interest in excess of eight per cent, "either
directly or indirectly by way of commission for advances." The
Georgia supreme court held that eight per cent, discount charged in
advance was more than eight per cent, interest. Mr. Justice Pitney
for himself and Justices Brandeis and Clarke agreed. He insisted
that "the laws of the state" as used by Congress meant not merely
the words of particular sections of state statutes, but "all applicable
provisions of the statutes as interpreted and construed by the de
cisions of the court of last resort" of the state. Mr. Justice McReynolds, for the majority, did not specifically controvert these positions,
but he relied on the rule of the federal courts that it is not usurious
"252 U. S. 512, 4o Sup. Ct. 374 (192o).
" For a discussion of the President's power of removal, see Thomas Reed
Powell, "The President's Veto of the Budget Bill", 9 Nat. Mun. Rev. 538.
"251 U. S. 1o8, 4o Sup. Ct. 58 (191o). See 33 Harv. L. Rev. 725, 18
M1ch. L. Rev. 345, and 29 Yale L. J. 457-
19
to collect the highest rate of legal interest at the time the loan is
made, and insisted that the power given to national banks to discount
notes includes "the power, which banks generally exercise, of dis
counting notes reserving charges at the highest rate permitted for
interest." He looked to the state law only for the rate, and to the
national law for the definition of usury.29
II.
Regulat1on of Commerce
1.
Power of Congress
The extensive power of Congress over foreign commerce finds

illustration in Strathearn S. S. Co. v. Dillon. This sustained a pro
vision in the Seamen's Act which, as interpreted, entitles any seaman
shipping in foreign ports on foreign ships to disregard contracts
postponing payment of wages until the end of the voyage and to
demand at any American port one-half the wages earned to date.
If the demand is not complied with, the seaman may sue in a federal
district court for the entire wages then earned. Most of the opinion
of Mr. Justice Day deals with the question of interpretation. The
shipping company, backed by the British Embassy, urged that the
Act should be limited to American seamen ; but the court adduced
against them the plain language of the statute and the further con
sideration that such "construction would have a tendency to prevent
the employment of American seamen, and to promote the engage"For a note on the power of a national bank to manage a railroad, see
33 Harv. L. Rev. 718, 726. See also Randall J. LeBoeuf, "National Banks as
Fiduciaries in New York", 5 Cornell L. Q. 128, and Walter Wyatt, "Fiduciary
Powers of National Banks", 6 Va. L. Rev. 3o1.
For a discussion of the national postal power, see Robert E. Cushman,
"National Police Power Under the Postal Clause of the Constitution", 4
M1nn L. Rev. 4o2.
Consideration of the power of the national government over aliens will
be found in Howard L. Bevis, "The Deportation of Aliens", 68 U. Pa. L. Rev.
97, and notes in 2o Colum. L. Rev. 68o, 18 M1ch. L. Rev. 422, 6 Va. L. Rev.
2o1, and 29 Yale L. J. 561. The right of aliens to take real property is dis
cussed in 5 Cornell L. Q. 2o9.
"253 U. S. 348, 4o Sup. Ct. 35o (192o). The case is followed in Thomp
son v. Lucas (The Westmeath), 253 U. S. 358, 4o Sup. Ct. 353 (192o). See
2o Colum. L. Rev. 479, and for comment prior to the decision, 2o Colum.
L. Rev. 2o7.
20
MICHIGAN LAW REVIEW
ment of those who were not entitled to sue for one-half wages under
the provisions of the law" and thus defeat the purpose of Congress
in passing it. The constitutional issue involved was declared to have
been settled by an earlier case31 in which the conclusion was "reached
that the jurisdiction of this government over foreign merchant ves
sels in our ports was such as to give authority to Congress to make
provisions of the character now under consideration ; that it was for
this government to determine upon what terms and conditions ves
sels of other countries might be permitted to enter our harbors, and
to impose conditions upon the shipment of sailors in our own ports
and make them applicable to foreign as well as domestic vessels."
From this it seems that ships which wish to enter our ports must be
have according to our taste on the high seas and in their home ports.
Board of Public Utility Commissioners v. Ynchausti & Co.32 found
no denial of due process of law in an order of the Philippine Board
of Public Utility Commissioners requiring the free carriage of mails
as a condition of granting to vessels a permit to engage in the coast
wise trade. The case was said to depend entirely upon the power to
limit the coastwise trade. This was found to be plenary. Hence it
was assumed to follow inevitably that no condition attached to a
grant could deny due process of law. There is a hint in the opinion
of the Chief Justice that the doctrine of the case is limited to legisla
tion for "territory not forming part of the United States because not
incorporated therein" under the principles of the Insular Cases; but
the hint is back-handed and, in view of the frequent declarations of
the complete power of Congress over foreign commerce, it must be
doubted whether any distinction would be made in favor of ships
engaged in that commerce. Yet plainly the opinion leaves room for
a different attitude towards a congressional regulation of the inter
state coasting trade. The order was questioned under the due-pro
cess clause of the Philippine Bill of Rights, which, it was recognized,
was intended by Congress to have in the Philippines the settled con
struction that similar clauses receive in the United States. Yet it
was added that the "result of their application must depend upon the
n Patterson v. Bark Eudora, 19o U. S. 169, 23 Sup. Ct. 821 (19o3).
"251 U. S. 4o1, 4o Sup. Ct. 277 (192o).
21
nature and character of the powers conferred by Congress upon the

government of the Islands."
The so-called Reed Amendment which had been sustained in an
earlier case,33 came before the court again in United States v.
Simpson,3* in which a person who transported five gallons of whiskey
in his own automobile sought to escape from the toils of the statute.
Mr. Justice Clarke in dissenting insisted that "interstate commerce,
in the constitutional sense, is defined to mean commercial, business,
intercourse" and especially "the exchange, buying or selling of com
modities, of merchandise, on a large scale between the inhabitants
of different states." He thought that liquor purchased by a man
for his personal use and transported by him in a private vehicle was
"withdrawn from trade or commerce as thus defined", and that at
the time when the Reed Amendment was enacted Congress had no
power to deal with Mr. Simpson on such a frolic of his own. "The
grant of power to Congress is over Commerce,not over isolated
movements of small amounts of private property, by private persons
for their personal use." The rest of the court contented themselves
with asserting, through Mr. Justice Van Devanter, that the introduc
tion of intoxicating liquor across state lines into forbidden territory
"could be effected only through transportation, and whether this took
one form or another it was transportation in interstate commerce."
In refusing to restrict the natural meaning of the words of the
statute, Mr. Justice Van Devanter pointed out that the law would
not be of much practical benefit if its purpose could be frustrated by
transportation in automobiles. Mr. Justice Clarke in his dissent said
he thought that the Hill case was wrongly decided. Mr. Justice McReynolds who had dissented with him in the Hill case concurred
in this.
Three prosecutions under the Sherman Anti-trust Law turned
wholly on the question whether there had been restraint of trade, it
being assumed that the trade involved was interstate commerce.35
" United States v. Hill, 248 U. S. 42o, 39 Sup. Ct. 143 (1919).
"252 U. S. 465, 4o Sup. Ct. 364 (192oV See 26 W. Va. L. Q. 73, and 29
Yale L. J. 922. For a general article see Lindsay Rogers, " 'Life, Liberty,
and Liquor' : A Note on the Police Power", 6 Va. L. Rev. 156.
"In United States v. United States Steel Corporation, 251 U. S. 417, 4o
Sup. Ct. 293 (192o), the acts charged were regarded by four judges as not
22
MICHIGAN LAW REVIEW
Blumenstock Brothers' Advertising Agency v. Curtis Publishing

Co.,39 however, turned on a construction of the commerce clause.
This was a suit for triple damages under the Sherman Act, based
on the refusal of the defendant to accept advertising from the plain
tiff unless the plaintiff would accede to the defendant's conditions as
to advertising in rival publications. The court held that the complaint
did not state a cause of action, since the contracts for advertising
were not interstate commerce. Mr. Justice Day's reference to cases
on insurance carries the implication that advertising is not commerce,
but this is not explicitly stated, and the case is direct authority only
on the question whether the contracts or commerce in question were
interstate. In answering this in the negative, Mr. Justice Day said
that "the advertising contracts did not involve any movement of
goods or merchandise in interstate commerce or any transmission of
intelligence in such commerce." The circulation of the journals in
interstate commerce was thought not to "depend upon or have any
direct relation to the advertising contract." The case was said to
within the statute. Justices Day, Pitney, and Clarke dissented, and Justices
McReynolds and Brandeis did not sit, so that a minority of the full bench
was sufficient to give the defendant a clean bill of health. See 2o Colum.
L. Rev. 462, and 33 Harv. L. Rev. o64, 986. In United States v. Reading Co.,
253 U. S.
, 4o Sup. Ct. 425 (192o), the three judges who dissented in the
Steel case joined with Justices McKenna, McReynolds and Brandeis in finding
the defendant guilty of an illegal monopoly under the Act. The Chief Justice
and Justices Holmes and Van Devanter dissented. In United States v. A.
Schrader's Son, 252 U. S. 85, 4o Sup. Ct. 251 (1o2o), the making of agree
ments by manufacturers with retailers for the purpose of maintaining resale
prices were held to be an unlawful restraint of trade. Mr. Justice Clarke
confined his concurrence to the result, and Justices Holmes and Brandeis dis
sented. See 33 Harv. L. Rev. o66, o86, 18 M1ch. L. Rev. 556, and 29 Yale
L. J. 696. The Schrader case was distinguished from United States v. Col
gate & Co., 25o U. S. 3o, 39 Sup. Ct. 465 (1919), decided the preceding term,
on the ground that in the Colgate case there were no definite contracts for re
sale price maintenance. For notes on the Colgate case see 5 Cornell L. Q.
1oo and 29 Yale L. J. 365. For other notes on cases on unfair competition
and restraint of trade see 2o Colum. L. Rev. 328, 5 Cornell L. Q. 323, 33
Harv. L. Rev. 32o, 617, 18 M1ch. L. Rev. 71, and 29 Yale L. J. 125. See also
Charles Grove Haines, "Efforts to Define Unfair Competition", 29 Yale L. J.
1, and William Notz, "The Webb-Pomerene LawExtraterritorial Scope of
the Unfair Competition Clause", 29 Yale L. J. 29.
"252 U. S. 436, 4o Snp. Ct. 3S5 (192o).

be wholly unlike one involving a correspondence school37 "wherein
there was a continuous interstate traffic in text-books and apparatus
for a course of study pursued by interstate commerce", and more like
the cases holding that insurance is not commerce and a case38 in
which the court was said to have held that "a broker engaged in
negotiating sales between residents of Tennessee and non-resident
merchants of goods situated in another state was not engaged in
interstate commerce."39
The general terms of the federal Employers' Liability Law con
tain no specifications as to when injured employees are engaged in
" International Text-book Co. v. Pigg, 217 U. S. 91, 3o Sup. Ct. 481 (191o).
"Ficklen v. Shelby County, 145 U. S. I, 12 Sup. Ct. 81o (1892). This
case did not, when decided, proceed on any theory that the broker was not
engaged in interstate commerce. It sustained a license on the privilege of
doing a general business which included intra-state as well as interstate com
merce. The fact that the broker asked for a license which included intra
state business was regarded as controlling. The difficulty of sustaining the
case on the theory adduced in the opinion has led the court lately to slide it
over the ground that the nature of the brokerage business is one degree re
moved from interstate commerce.
"An interesting case under the Federal Trade Commission Act of 1914
is Federal Trade Commission v. Gratz, 252 U. S.
> 4o Sup. Ct. 572 (1o2o).
The Commission after notice and hearing had ordered Gratz to desist from
refusing to sell ties for cotton bales unless the purchaser bought bagging
at the same time. Under the provisions of the statute the defendant applied
to the Circuit Court of Appeals to set aside the order of the Commission. The
petition was granted for the reason given that the evidence failed to show
that the practice complained of was general and that the Commission had not
jurisdiction to determine the merits of specific individual grievances. The
opinion of the Supreme Court, by Mr. Justice McReynolds, sustains the dis
missal of the order of the Commission, on the ground that the complaint
issued by the Commission fails to state facts sufficient to show that the de
fendant's refusal to sell ties without bagging is unfair or detrimental to the
public interest. Mr. Justice Brandeis, in dissenting, insisted that the complaint
filed by the Commission was sufficient though in general terms, that the Com
mission is vested with power to forbid "unfair methods" of competition be
fore those methods become established as a general practice, that the Circuit
Court of Appeals had found that the specific facts charged were supported
by the evidence, and that these facts included sufficient evidence of a dom
inating position enjoyed by the defendants so that it was not unreasonable
for the Commission to find that the methods used amounted to "unfair com
petition." Mr. Justice Clarke joined in the dissent. Mr. Justice Pitney con
fined his concurrence to the result. See 2o Col. L. Rev. 8o6.
MICHIGAN LAW REVIEW
*4
interstate commerce so as to come within the Act. This is left to

the courts in each individual case. The issue is not the constitution
ality of the statute but the constitutionality of its application to a
particular state of facts. In four cases during the past term the
employee was held to have been engaged in interstate commerce at
the time of his injury. The test applied is whether the work being
done is so closely related to interstate commerce as to be practically
a part of it. Erie R. Co. v. Collins*9 involved an employee who
operated a signal tower and water tank, both accessory to the opera
tion of interstate trains. He was hurt by an explosion of the gaso
line tank for the pump for the water tank. Erie R. Co. v. Szary*1
involved an employee whose job was to dry sand for use in engines
some of which were used in interstate commerce. After sanding some
engines destined for other states, he emptied the ashes from the
stove, took them in a pail across the tracks to the ash pit, emptied
the pail, got a drink of water at the engine house, was hit by an
engine when crossing the track again to get the pail. In these two
cases suit had been brought under the federal law, so the employee
guessed right. Justices Van Devanter and Pitney dissented in both
cases. In the next two cases the employee sought to come within
state compensation acts and got his award only to have the Supreme
Court set it aside and hold he should have sued under the federal
law. Mr. Justice Clarke dissented in both cases. In Southern Pacific
Co. v. Industrial Accident Commission42 the deceased was killed
while wiping insulators supporting a wire carrying power then used
in the propulsion of interstate trains. In Philadelphia & Reading
R. Co. v. Hancock43 the accident occurred to one aiding in transport
ing from the coal mines a train of cars some of which were destined
for other states. The court held that the interstate transportation
had already begun, though the crew to which plaintiff belonged took
them only to the yard, from which they were taken by another crew
to scales ten miles away, after which they were first billed to extrastate consignees. But the shipping clerk at the mine designated the
"253
"253
"251
"253
U.
U.
U.
U.
S.
, 4o Sup. Ct. 45o (192o').
S.
, 4o Sup. Ct. 454 (192o).
S. 259, 4o Sup. Ct. 13o (192o).
S.
, 4o Sup. Ct. 512 (192o).

particular cars that were to go outside the state, and the freight
charges were through rates from the mine to the ultimate destina
tion.41
In New York Central R. Co. v. Mohney** the question was
whether a release of liability contained in a pass should be governed
by the state or federal law. This was thought to depend on the ques
tion whether the passenger was on a local or interstate journey when
the injury occurred, but the character of the journey was determined
by the character of the pass on which the plaintiff was travelling.
The pass was good only between two points within Ohio. Plaintiff
intended to pay his fare from the second Ohio city to a third, where
he was to get a promised pass good from there to his ultimate des
tination in Pennsylvania. Justices Day and Van Devanter thought
that under the facts he was on an interstate journey when injured on
the first stretch. But Mr. Justice Clarke, for the majority, held that
the contract must govern and not the intention of the traveller. As
the only contract he had was a pass between two local points, he was
on a local journey. "The mental purpose of one of the parties to a
written contract cannot change its terms." The application of the
decision is doubtless limited to the particular issue before the court,
since it was declared that the written contract of release on the pass
was the only reliance of the defendant.'48
44 In Hull v. Philadelphia & Reading Ry. Co., 252 U. S. 475, 4o Sup. Ct.
358 (192o), an agreement between two connecting railroads that each might
run trains manned by its crews over the line of the other and that each would
be responsible for all accidents on its own line was held not to make a person
hired by one road an employee of the other when on its line so as to be able
to sue the latter under the Employers' Liability Law. Mr. Justice Clarke dis
sented. See 2o Colum. L. Rev. 7o9.
In 19 Colum. L. Rev. 395 is a note to Kinzell v. Chicago, M. & St. P. Ry.
Co., 25o U. S. 13o, 39 Sup. Ct. 412 (1919), and Philadelphia, B. & W. R. Co.
v. Smith, 25o U. S. 1o1, 39 Sup. Ct. 396 (1919), two cases decided during the
October, 1918, term, and holding employees within the federal Employers'
Liability Law. The latter case is also commented on in 6 Va. L. Rev. 66.
See 68 U. Pa. L. Rev. 372 for a note on the "Nature of the Services of a Flag
man at a Crossing Under the Federal Employers' Liability Act."
"252 U. S. 152, 4o Sup. Ct. 287 (192o). See 29 Yale L. J. 8o3.
"In Fort Smith & W. R. Co. v. Mills, 253 U. S.
, 4o Sup. Ct. 526
(192o), the Adamson Law was held not to apply to an insolvent railroad in
the hands of a receiver which had a wage agreement with its employees who
MICHIGAN LAW REVIEW
26
2.
State Police Power and Interstate Commerce
The last three cases, which for convenience were included under
the head of the power of Congress, belong technically in the group
now being considered. The question in each case was whether the
subject matter was interstate or local in character. The intra-state
pass was held to make the journey on which it was used an intra
state journey at least for the purpose of allowing state law to control
the effect of a stipulation in the pass against liability for injury to
the holder. In the other two cases state compensation laws were
held inapplicable because the injuries were found to be within the
scope of the federal Employers' Liability Law. State action on a
matter normally within reserved state power was precluded because
Congress under its commerce power had taken control of the same
matter. The only question was whether the injuries occurred in
local or in interstate commerce, since it had previously been settled
that Congress had taken within its control the regulation of liability
for all injuries to employees engaged in interstate commerce and
that the state law could not apply to such injuries even though the
federal law provided no remedy. It is not, however, a universal
rule that all state action is necessarily precluded by congressional
regulation of matters within the general field in question. If the
state law is in conflict with the congressional prescription, it is of
not only refrained from making any demands under the Adamson Law but
appreciated the situation and desired to continue under the existing agreement.
Kansas City So. Ry. v. Interstate Commerce Commission, 252 U. S. 178, 4o
Sup. Ct. 187 (192o), ordered the defendant to obey the Act of Congress in
respect to making a physical valuation of the railroads and to ascertain the
present cost of condemnation and damages, or of purchase in excess of the
original cost or present value, notwithstanding the declarations of the Supreme
Court in the Minnesota Rate Cases, 23o U. S. 352, 33 Sup. Ct. 729 (1913) that
the estimation of such hypothetical cost was "wholly beyond reach of any
process of rational determination", was based on an "impossible hypothesis",
and would be an indulgence in "mere speculation" and "mere conjecture."
The court evidently assumes that the members of the commission are endowed
with some supernatural powers which mere judges lack.
For articles on federal control of the railroads, see J. A. Fowler, "Federal
Power to Own and Operate Railroads in Peace Time", 33 Harv. L. Rev. 775,
Gerard C. Henderson, "Railway Valuation and the Courts", 33 Harv. L. Rev.
9o2, 1o31, and Fordney Johnston, "The Transportation Act, 192o", 6 Va.
L. Rev. 482.
27
course inapplicable. Where the two are not in conflict, the question
is whether Congress has meant to cover the whole field or only that
part it has specifically dealt with. This was the issue in three cases
decided during the last term.
Pennsylvania R. Co. v. Public Service Commission" had before it
the question whether a state statute requiring a platform and guard
rails on the rear end of the last car of trains was precluded by any
federal regulation. The car which violated the state statute was a
mail car. Mr. Justice Holmes said that the federal rules for the
construction of mail cars not only exclude the platform required by
the state but provide an equipment for them when used as end cars.
They also provide for caboose cars without such platforms as the
state requires. Since caboose cars are constantly used as end cars,
the federal law makes lawful such an end car as the state law for
bids. Mr. Justice Clarke, who alone dissented, looked at the state
order as directed at trains rather than at individual cars. He found
no evidence that the Interstate Commerce Commission had pre
scribed how trains should be made up or what sort of cars should
be put at the end. Caboose cars are commonly attached to slowmoving freight trains, not to fast-moving express and mail trains.
No federal requirement would be interfered with if the railroad
carried at the end of its trains the kind of car demanded by the state.
The federal rules have a different purpose and therefore have not
occupied the whole field of the regulation of trains. But eight mem
bers of the court thought otherwise.
In two unanimous decisions it was laid down that Congress had
so far taken over the regulation of interstate telegraphic communica
tion as to preclude the application of state laws on matters allowed
to be within state control until Congress acts. Postal TelegraphCable Co. v. Warren-Godwin Lumber Co.** negatived the applica
tion of the Mississippi doctrine that a stipulation limiting liability for
"25o U. S. 566, 4o Sup. Ct. 36 (1919). See 5 Va. L. Reg. n. j. 719, and
29 Yale L. J. 456.
"251 U. S. 27, 4o Sup. Ct. 69 (1919). See 33 Harv. L. Rev. 988, 14 IIl.
L. Rev. 525, 5 Iowa L. B. 28o, 18 M1ch. L. Rev. 418, 4 M1nn. L. Rev. 293,
U. Pa. L. Rev. 259, and 29 Yale L. J. 566. For discussions prior to the de
cision see W. M. Williams, "Applicability of the Interstate Commerce Act to
Telegraph Companies", 9o Cent. L. J. 37o, and notes in 18 Co1.um. L. Rev.
612, and 18 M1ch. L. Rev. 248.
28
MICHIGAN LAW REVIEW
error in transmitting an unrepeated message is void as one limiting

liability for negligence, and held the contract governed by the con
trary rule obtaining in the federal courts. Western Union Telegraph
Co. v. Boegli*" saved the company from a penalty fixed by the law
of Indiana for failure to deliver a message promptly. The Act of
Congress looked to in both cases for the banishment of state author
ity was the 19 1o Amendment to the Interstate Commerce Act. This
allows telegraph companies to establish reasonable rates subject to
the control of the Interstate Commerce Commission, requires their
rates to be equal and uniform, and permits the classification of mes
sages into day, night, repeated, unrepeated, etc., with different rates
for each class. This specific authorization to vary the rates as a
message is repeated or unrepeated was thought "unmistakably to
draw under the federal control the very power which the construc
tion given below to the act necessarily denied." The purpose of Con
gress in its provisions was said to be to subject interstate telegraph
companies to a uniform national rule, and to exclude the possibility
of applying varying state laws. The state penalty failed because the
state law did not apply. The state rule as to the legality of the limi
tation of liability failed because, since the subject is under federal
law, it is governed by the non-existent federal common law consist
ing of those principles of general jurisprudence which the federal
courts modestly profess to be better able to discover than are their
colleagues who sit in state tribunals.50
In the absence of congressional regulation, the states are allowed
to regulate such interstate commerce as is not "national in character."
Only over such commerce as is thought to require uniformity of
regulation throughout the country is the mere grant to Congress re
garded as a grant of the whole power and therefore a prohibition on
the states. And interstate commerce, even though "national in
character" and hence such as to require uniformity of regulation,
may still be subjected to state requirements in minor matters, pro
vided Congress has not passed inconsistent regulations or taken the
whole field within its control. Reiterated formulae as to the ex"251 U. S. 315. 4o Sup. Ct. 167 (192o).
" For notes on the law governing telegraph messages between two pomts
within the same state but routed partly through another state, see 18 M1ch.
L. Rev. 559 and 4 M1nn. L. Rev. 295.
29
clusiveness of congressional power over such commerce are saved

from formal impairment by saying that the state requirements which
are sanctioned do not "regulate" interstate commerce, but merely "in
cidentally affect" it. Thus "regulate" becomes a word of art which
applies, not to all that regulates in fact, but only to that which regu
lates too much or in some disapproved way. The cases decided dur
ing the past term afford two rather striking instances of this tolerant
attitude towards state laws thought merely to affect interstate com
merce incidentally without regulating it.
Pennsylvania Gas Co. v. Public Service Commission*1 allowed the
New York Public Service Commission to prescribe the rates for
natural gas piped from Pennsylvania and furnished to consumers of
a New York municipality. There was no break in the continuity of
the transmission, as there had been in some previous cases, and the
court was clear that such commerce is interstate and that the local
rates may affect the interstate business of the company. But the
service which was rendered was said to be essentially local, and not
one that requires general and uniform regulation of rates by con
gressional action. Obviously the deciding factor in the case is a
judgment that it is better for the rates to be regulated than for the
monopoly to demand what it pleases, and that any interference with
the freedom of interstate commerce is the lesser of two evils and one
readily obviated by national action whenever Congress sees fit.52
South Covington & Cincinnati St. Ry. Co. v. Kentucky*9 allowed
a state Jim Crow car law to apply to an interurban street railway
company though eighty per cent, of its traffic was interstate. Mr.
Justice Day wrote a dissenting opinion which was concurred in by
Justices Van Devanter and Pitney. This pointed out that Ohio,
across the river, forbade the separation of passengers according to
51 252 U. S. 23, 4o Sup. Ct. 279 (192o). See 68 U. Pa. L. Rev. 393 and 29
Yale L. J. 926.
"For discussions of an important issue soon to reach the Supreme Court,
see Fred O. Blue, "Has the Legislature the Power to Restrict the Sale of the
State's Natural Products Into Other States ?", 9o Cent. L. J. 154, and Thomas
Porter Hardman, "The Right of a State to Restrain the Exportation of Its
Natural Resources", 26 W. Va. L. Q. 1, 224.
B252 U. S. 399. 4o Sup. Ct. 378 (192o). The same point is affirmed in
Cincinnati, C. & E. Ry. Co. v. Kentucky, 252 U. S. 4o8, 4o Sup. Ct. 381 (192o).
See 18 M1ch. L. Rev. 791.
MICHIGAN LAW REVIEW
complexion and that to comply with the Kentucky law the company
would have to attach an extra car for the six-mile journey in Ken
tucky. As not over six per cent, of the passengers were colored and
on many trips there were no colored passengers at all, the attachment
of this extra car was thought to be an unreasonable burden on inter
state commerce both in respect to cost and in the practical operation
of the traffic. For the majority Mr. Justice McKenna declared that
"the regulation of the act affects interstate business incidentally and
does not subject it to unreasonable demands." He also relied on the
fact that the Kentucky part of the line was separately owned by a
Kentucky corporation which, he said, should not be permitted to
escape its obligations to the state by running its coaches beyond the
state line. But Mr. Justice Day answered that this Kentucky com
pany owned no cars and conducted no operations and that its stock
was entirely owned by the defendant company whose business was
preponderantly interstate. Mr. Justice McKenna, for the majority,
spoke of "the equal necessity, under our system of government, to
preserve the powers of the states within their sovereignties as to
prevent the power from intrusive exercise within the national sov
ereignty," but he did not mention a regard for certain strongly-held
sentiments which may have influenced the favor shown to the state.
It would not be safe to rely on the case as authority for equally great
burdens imposed from other motives.04
3.
State Taxation and Interstate Commerce
The recently developed doctrine that the inclusion of extra-terri

torial values in the assessment of an excise on the local business of
foreign corporations doing both local and interstate commerce makes
the exaction an invalid regulation of interstate commerce and a
taking of property without due process of law finds expression in
Wallace v. Hines. The case sustained a preliminary injunction
against a North Dakota excise imposed by a statute under which
" For other discussions of state police power in relation to interstate
commerce, see Kenneth F. Burgess, "New Limitations Upon State Regulations
of Rates", 2o Colum. L. Rev. 66o, Julius Henry Cohen, "The New York
Harbor Problem in Its Legal Aspects", 5 Cornell L. Q. 373, and notes in 33
Harv. L. Rev. 292, 312, on state control over interstate bridges.
K253 U. S.
, 4o Sup. Ct. 435 (192o).
31
"the tax commissioner fixes the value of the total property of each
railroad by the total value of its stocks and bonds and assesses the
proportion of this value that the main track mileage in North Dakota
bears to the main track of the whole line." The mileage ratio was
declared indefensible both because the physical value of a mile of
track over the North Dakota plains is worth less than that of a mile
in more mountainous and more populous states and because the road
in question had valuable terminals and other property in other states
with no corresponding assets and facilities in North Dakota. Mr.
Justice Holmes puts the principle of the case as follows :
"The only reason for allowing a State to look beyond its
borders when it taxes the property of foreign corporations is
that it may get the true value of the things within it, when they
are part of an organic system of wide extent, that gives them a
value above what they otherwise would possess. The purpose
is not to expose the heel of the system to a mortal dartnot, in
other words, to open to taxation what is not within the State.
Therefore no property of such an interstate road situated else
where can be taken into account unless it can be seen in some
plain and fairly intelligible way that it adds to the value of the
road and the rights exercised in the State. Hence the posses
sion of bonds secured by mortgage of lands in other States, or
of a land-grant in another State or of other property that adds
to the riches of the corporation but does not affect the North
Dakota part of the road is no sufficient ground for the increase
of the taxwhatever it may bewhether a tax on property, or,
as here, an excise upon doing business in the State."
Two divergent cases on occupation taxes imposed on those sell
ing within the state goods of extra-state origin still in the original
package show how fine a line can be drawn between vice and virtue.
Wagner v. Covington presented the familiar distinction between
sales by peddlers and sales by drummers. An Ohio bottler of soft
drinks with a regular line of customers in Covington, Kentucky, was
subjected to a license tax on wholesalers. Some of his deliveries
were in response to previous specific orders. For these the Ken
tucky court had held him not taxable. The rest were the result of
"251 U. S. 95, 4o Sup. Ct. 93 (1919). See 6 Va. L. Rev. 378.
32
MICHIGAN LAW REVIEW
fairly assured expectancies, but occasionally the wagons returned

from Kentucky to Ohio with some or all of the goods they had taken
over to meet the hoped-for demand. Over the silent dissent of Jus
tices McKenna and Holmes, Mr. Justice Pitney for the majority
declared :
"Of course the transportation of plaintiffs' goods across the
state line is of itself interstate commerce ; but it is not this that
is taxed by the city of Covington, nor is such commerce a part
of the business that is taxed, or anything more than a prepara
tion for it. So far as the itinerant vending is concerned, the
goods might just as well have been manufactured within the
state of Kentucky ; to the extent that plaintiffs dispose of their
goods in that kind of sales, they make them the subject of local
commerce ; and, this being so, they can claim no immunity from
local regulation, whether the goods remain in the original pack
ages or not."
The previous peddler cases sustaining taxes on sales of goods
which, so far as appears, were still in the original packages in which
they came from other states, make us curious to know why Justices
McKenna and Holmes dissented. The provisions of the ordinance
are not set forth in the majority opinion, and it may be that the dis
sentients did not agree that its general language was properly sep
arable into an invalid tax on concededly interstate sales and a valid
tax on those made in Kentucky without prior assured orders. Or
they may have thought that the regular and continuous business of
supplying the recurring and fairly certain demands of retailers is
substantially different from the casual and precarious peddling here
tofore held not interstate commerce.
That it was the itinerant character of the vending that put it with
in the grasp of the state seems fairly clear from the unanimous
decision in Askren v. Continental Oil Co.17 four months later. This
held a state license tax inapplicable to sales of gasoline in the barrels
in which they had come from another state and to sales of the whole
contents of tank cars. Mr. Justice Day, after citing an earlier de
cision,58 declared:
"252 U. S. 444, 4o Sup. Ct. 355 (192o).
"Standard Oil Co. v. Graves. 249 U. S. 389, 39 Sup. Ct. 32o (1919).
33
"In that case we reaffirmed, what had often been adjudicated

heretofore in this court, that the direct and necessary effect of
such legislation was to impose a burden upon interstate com
merce ; that under the federal Constitution the importer of such
products from another state into his own state for sale in the
original packages, had a right to sell the same in such packages
without being taxed for the privilege by taxation of the sort here
involved. Upon this branch of the case we deem it only neces
sary to refer to that case, and the cases therein cited, as estab
lishing the proposition that the license tax upon the sale of gaso
line brought into the state in tank cars, or original packages, and
thus sold, is beyond the power of the state."
A different attitude was taken towards that part of the business
which was said to consist "in selling gasoline in quantities to suit
purchasers." Of such sales Mr. Justice Day said :
"Much is made of the fact that New Mexico does not produce
gasoline, and all of it that is dealt in within that state must be
brought in from other states. But, so long as there is no dis
crimination against the products of another state, and none
is shown from the mere fact that the gasoline is produced in
another state, the gasoline thus stored and dealt in is not
beyond the taxing power of the state."
The best reason for allowing the taxation of these sales would
seem to be that the original package was broken to make them. But
that is not mentioned by the court. Instead Mr. Justice Day cites
Wagner v. Covington without comment. The sales there held tax
able were in the original packages. Why should the sale of a full
case of ginger ale be held taxable and the sale of a full barrel of
gasoline be held not taxable? The only substantial difference be
tween the cases seems to be that the ginger ale was peddled while
presumably the purchaser of the gasoline had to come and get it.
In Shaffer v. Carter00 an Illinois citizen based one of his objections
" Note 56, supra.
*>252 U. S. 37, 4o Sup. Ct. 221 (192o). This case will be reviewed more
at length in the section on "Taxation", and references to discussions in law
reviews will there be given. Mr. Justice McReynolds dissented but, as he filed
no opinion, it cannot be known whether his dissent is based on the commerce
clause or on the Fourteenth Amendment or on both.
34
MICHIGAN LAW REVIEW
to an Oklahoma tax on the net income from his Oklahoma oil wells
on the ground that the tax was an invalid regulation of interstate
commerce. Mr. Justice Pitney answered that the tax since it was
not on gross receipts but only upon the net proceeds "is plainly sus
tainable, even if it includes net gains from interstate commerce."
For this he cited the case91 sustaining the application of the Wis
consin income tax to the net income of a domestic corporation from
business within the state. He thus makes it evident that the doctrine
of that case is not confined to domestic corporations or to domiciled
citizens. Whether it applies only to general state-wide income taxes
or covers as well as a special excise on net incomes confined to cor
porations is a question now before the Supreme Court in cases con
testing the corporation income tax law of Connecticut.02
Thomas Reed Powel1..
Columbia University.
(To be continued)
"United States Glue Co. v. Oak Creek, 247 U. S. 321, 38 Sup. Ct.
399 (1o18).
"For discussions of the Connecticut decision sustaining the tax, see 2o
Colum. L. Rev. 324 and 33 Harv. L. Rev. 736.
INTEREST ON CLAIMS IN RECEIVERSHIP

PROCEEDINGS*
INTEREST ON UNSECURED CLAIMS
UTSIDE the cases of receivership, the Supreme Court of the
United States has said :
"We reach the conclusion that whatever may have been
the English and early American rule, the tendency in Vir
ginia as elsewhere in this country, is to allow interest on con
tracts to pay money from the date that the debt becomes
due."1
Interest is allowed as a matter of law in cases of contract or the
unlawful detention of money.2 In the absence of statute the gen
eral rule is that in actions for tort the allowance of interest is not
an absolute right3it rests in the discretion of the court or jury.*
The rule generally announced governing the payment of interest
on claims in receivership proceedings may be briefly stated as
follows :5
"As a general rule, after property of an insolvent passes
into the hands of a receiver, interest is not allowed on claims
against the funds. * * * The delay in distribution is the act
of the law ; it is a necessary incident to the settlement of the
estate."
This rule was laid down early in the history of receiverships, has
been generally followed by courts of equity, and the substance of
this rule has been incorporated in the bankruptcy statutes of Eng* By Ralph E. Clark, of the Cincinnati Bar, author of Clark on Rece1vers.
'Am. Iron Co. v. Seaboard Air Line (1913), 233 U. S. 261 at 265.
9Lincoln v. Claflin (1868), 7 Wall. 132 at 139* Drumm-Flato Commission Co. v. Edmisson (1oo7), 2o8 U. S. 534 at 539.
*The Scotland (1885), 118 U. S. 57 at 518; Lincoln v. Claflin (1868),
7 Wall. 132 at 139; Bates v. Dresser, March I, 192o, U. S. Supreme Court.
Thomas v. Western Car Co. (1893), 149 U. S. 95 at 116; New York Trust
Co. v. Detroit T. & I. Ry. (1918), 151 Fed. 514 at 519-
36
MICHIGAN LAW REVIEW
land and the United States. Various reasons have been given for
the above rule. The Connecticut Supreme Court of Errors has said :'
"No debt can arise against an insolvent estate in the hands
of a receiver. From this principal comes the general rule
that only claims as then existing can be recognized as obliga
tions of the estate. For this reason interest cannot be allowed
on claims after insolvency has been judicially declared."
Judge William H. Taft, then of the Circuit Court of Appeals,
Sixth District, in the case of Chemical National Bank v. Armstrong,
16 U. S., App. 465, at page 535, says :
"It will not do to say that the date fixed for stopping in
terest on all claims is a mere matter of convenience in calcu
lating which works no injury to anyone because all are treated
alike. The creditor with a debt bearing 8% interest is very
injuriously affected in comparison with the creditor whose
debt bears but 4%."
Lindley, L. J., in the case of In re Browne & Wingrove [1891].
L. R. 2 Q. B. D., 574 at 581, says :
"The rule which prevents proof for future interest is not
a positive enactmentit is rather a rule of convenience. In
ordinary cases it produces no injustice."
Mr. Justice Lamar in American Iron Co. v. Seaboard Air Line
(1913) 233 U. S. 261 at 266 said:
"And it is true as held in Tredegar Co. v. Seaboard Rail
way, 183 Fed. Rep. 289, 29o. That as a general rule, after
property of an insolvent is in custodia legis, interest thereafter
accruing is not allowed on debts payable out of the funds
realized by sale of the property. But that is not because the
claims had lost their interest bearing qualities during that
period, but is a necessary and enforced rule of distribution,
due to the fact that in case of receiverships the assets are
generally insufficient to pay all debts in full. If all claims
were of equal dignity and all bore the same rate of interest
8 Lippitt v. Thomas L. & T. Co. (1914), 88 Conn. 185 at 2o6, 9o Atl. 369.
INTEREST IN RECEIVERSHIPS
37
from the date of the receivership to the date of final distribu

tion, it would be immaterial whether the dividend was calcu
lated on the basis of the principal alone, or of interest and
principal combined. But some of the debts might carry a
high rate and some a low rate, and hence, inequality would
result in the payment of interest which accrued during the
delay incident to collecting and distributing the funds. As
this delay was the act of the law, no one should thereby gain
an advantage or suffer a loss. For that and like reasons, in
case funds are not sufficient to pay claims of equal dignity,
the distribution is made only on the basis of the principal
debt. But that rule did not prevent the running of interest
during receivership; and if, as a result of good fortune or
good management, the estate proved sufficient to discharge
the claims in full, interest as well as principal should be paid."
It is difficult, if not impossible, to reconcile all these different
statements made by courts of high authority. We agree with the
statements made by Lindley, L. J., and Mr. Justice Lamar, just
quoted. When a receiver is appointed of the property of an insol
vent, be he an individual or corporationliens, charges and equities
which existed before receivership are not changed, altered or an
nulled by reason of the receivership. Furthermore, if a claimant
has a substantive right or claim against the individual or corporation
before insolvency, this substantive right is not cancelled or annulled
or divested by the receivership. A court of equity cannot change
the contracts and substantive rights of a claimant which existed be
fore receivership. If this is true, then it is difficult to conceive how
a claimant's substantive right to interest against the insolvent in
dividual or corporation can be annulled or arrested at the time of
appointment of receiver. When the Connecticut Supreme Court of
Error says : "That no debt can arise against an insolvent estate in
the hands of a receiver," we believe this court nas not stated tne law
correctly, if this court means that no obligation to pay interest which
existed before receivership continues after appointment of receiver.
It is true that after appointment of a receiver, no obligation can be
initiated or created anew by the party whose property is in the hands
of a receiver so as to bind such property. But it certainly cannot
38
MICHIGAN LAW REVIEW
be true that an obligation to pay interest ceases to be an obligation

by the appointment of a receiver. The New York court in the case
of Fera v. Wickham (1892)7 says: "By an assignment in trust for
the assignor's creditors, what natural equities previously existed be
come suspended by an intervention by the rights of other creditors."
Such a statement we believe, is in violation of the fundamental prin
ciples of equity, and is not in accord with the most recent rulings of
the Circuit Court of Appeals for the southern district of New York,*
nor with the most recent rulings of the Supreme Court of the United
States.8 We believe the rule stopping interest at time of appoint
ment of receiver is a rule of convenience, and in most cases does
work for an equitable distribution to creditors, but not in all cases.
When a court of equity appoints a receiver of the property of an
insolvent person or corporation for the purpose of distributing this
property to creditors, the court appointing the receiver has deprived
claimants of their ordinary legal and equitable remedies against this
property. No levy, execution or attachment can be brought against
the assets of the insolvent when they are in the hands of a receiver.
The court of equity having deprived claimants of their ordinary
remedies invites such claimants to submit such claims to a receiver
or to a master for allowance and liquidation, or rejection, making
proper provisions for the receiver's or master's findings to be re
ported to the court for confirmation. It is the court's duty to dis
tribute the assets equitably and ratably to claimants whose claims are
properly presented and proved. The appointment of a receiver can
not deprive a debt of its interest-bearing quality ; neither can it
annul the contract of the insolvent to pay interest. If there is enough
property to go around, justice and the contractual rights of the
claimants demand that interest should be carried down to the actual
payment of the money.10 Therefore, to divide the property up equit* 135 N. Y. 223. See also People v. Am. Loan & T. Co. (1oo2), 172 N. Y
371 at 378, when Vann, J., says : "By law the creditor becomes the equitable
owner of the assets and the administration of affairs is for their benefit
as such."
8Penn. Steel Co. v. N. Y. City Ry. Co. (1912), 198 N. Y. 721 at 742.
*Wm. Filene's Sons Co. v. Weed (1917), 245 U. S. 5o7.
"Lord Mansfield in Robinson v. Bland (176o), 2 Burr. 1o87; Blair v.
Clayton Ent. Co. (191o), 9 Del. Ch. 98; Williams, Adm. v. Am. Bank (1842),
4 Mete. 317 at 317.
39
ably and ratably if sufficient to go around, interest must be figured

up to the time of distribution.11 If there is not sufficient property
to go around, which is of course the case when insolvency takes
place, then the only equitable and ratable distribution of the assets
appears to us to be to figure interest according to contracts on claims
up to the time of distribution, then declare such a dividend as is pos
sible on the amount of the claims, including interest.12 However, if
all claims bear the same rate of interest, we can of course stop
interest at time of appointment of receiver or any other subsequent
time, and the division would be equitable and ratable; but if one
creditor has a debt bearing 8% interest, the stopping of interest at
time of appointment of receiver may very injuriously affect him in
comparison to the creditor whose debt bears but 4%.
Although authorities without number may be found for stopping
interest at time of appointment of receiver, nevertheless if it is
necessary to calculate interest on all claims up to the time of dis
tribution in order to make a truly equitable and ratable distribution,
then we believe this ought and can be done without violating any
positive usage and rule of equity.
INTEREST ON SECURED CLAIMS
A debtor when incurring his obligation to pay and giving security
for such obligation, generally but not always by contract, secures
the payment of interest as well as the principal of the debt. If he
does so secure the payment of interest, the creditor who has a right
to hold or appropriate the security or collateral can hold or appropri
ate it when default occurs of either interest or principal. If interest
is so secured, then the creditor can not be compelled to relinquish his
right to hold or appropriate the security until he has been paid both
principal and all interest due up to the time he relinquished the secu
rity. If the security is realized and he is not paid his debt in full, then
11 Cases of solvency. People v. Merchant's Trust Co. (19o7), 187 N. Y.
293, 79 N. E. 1oo4; First Nat. Bank v. J. I. Campbell Co. (19o8), 52 Tex.
Civ. App. 445, 114 S. W. 887. See Annotation L. R. A. 1917 D., p. 1166.
"Blair v. Clayton Ent. Co. (191o), 9 Del. Ch. 95 at 98; Re Murray, As
signee of Commercial Ins. Co. (1836), 6 Paige 2o4; Amer. Iron Co. v. Sea
board Air Line (1913), 233 U. S. 261 at 266.
MICHIGAN LAW REVIEW
his actual claim against the debtor insolvent is the original claim and
all interest up to date of presenting his claim, less the actual amount
realized by his security. In other words, out of the security or se
curities if they are more than enough to pay the secured creditor, he
must be paid his full claim with interest to date of payment before
any balance can be turned over to the receiver for distribution to
other creditors.13 If interest on the creditor's claim is not subject to
lien, then the question arises, shall interest be calculated on the
creditor's secured claim when the collateral or security is realized
and proceeds applied toward payment of the secured creditors
claim? If the creditor has no such lien covering his interest, then
he can not receive from the realization of his collaterals a sum
greater than his original debt, less interest. However, after he has
realized his securities, he still has a claim against the insolvent for
the balance of his original debt and for interest on it, whether this
be calculated to date of insolvency or to date of presentation of claim.
Now we come to the question on what basis shall the claim of the
secured creditor against the general assets be allowed ? The so-called
Bankruptcy Rule forces the secured creditor to realize his securities
first and prove for the balance. On this balance he is to receive his
dividends. The so-called Chancery Rule allows the secured creditor
to receive dividends upon the original claim unreduced provided
that he shall not in the aggregate receive more than the total amount
of his debt or claim.
We believe the Chancery Rule in insolvency and Receivership
cases can not be upheld on equitable principles, although high au
thority can be cited for upholding it.14 Under the Chancery Rule
and under the rule refusing to calculate interest subsequent to ap
pointment of receiver a secured claimant would present his claim
against the general assets for the original amount with interest up
to the time of insolvency and appointment of receiver. Under the
"Spring Coal Co. v. Keech (19o2), 239 Fed. 48, 1917 L. R. A. 1152 and
notes; Huff v. Bidwell (1914), 218 Fed. 6 at 9; First Nat. Bank v. Ewing,
1o3 Fed. 168.
" U. S. cases supporting Chancery Rule are Chemical Nat. Bk. v. Arm
strong, 16 U. S. App. 465, 59 Fed. 372, 8 C. C. A. 155, 28 L. R. A. 231, 65
Fed. 573, 13 C. C. A. 47; Merrill v. Nat. Bank of Jacksonville (1898), 173
U. S. 131. See however Westinghouse Elec. & Mfg. Co. v. Idaho Ry. L. & P.
Co. (191 5), 228 Fed. 972.
Bankruptcy Rule he would present his claim for the balance due
after realization of his collateral with interest up to the time of ap
pointment of receiver.
Our idea of a true equitable and ratable distribution along what
may be called scientific lines, would we believe, be to calculate the
original claim with interest agreed upon up to the time of making
distribution, subtract from this the amount realized from securities
or collateral realized, and pay dividends upon the balance.
INTEREST ON PRIORITY CLAIMS
When it has been determined that interest shall be allowed on
ordinary claims secured by mortgage, pledge, etc., the next question
which naturally presents itself is, shall interest be allowed on claims
which by statute or otherwise have precedence or priority over such
secured claims? An ordinary lien is created by a contract between
the parties. If that lien contract covers interest on the obligations
secured, then interest must be added to the claim; if that contract
does not include interest, then any claim for interest must be met
out of general assets. Suppose however, the law either statutory or
otherwise, says that public policy demands and law or equity recog
nizes that certain claims when insolvency takes place shall be given
priority even over ordinary secured claims. Take for instance claims
for supplies secured by a lien which by statute takes priority over
mortgages. Does such a statute giving priority to certain claims,
cover interest on such claims? Of course, it is impossible to lay
down a rule covering all statutes when each separate statute may be
worded differently from every other statute. In the first place, the
appointment of a receiver has not created any claims, neither has it
added to nor taken away from any claims. If a claim before re
ceivership drew interest, its interest bearing quality has not been
taken away from it by appointment of a receiver. On the other
hand, if a claim did not bear interest, the appointment of a receiver
will not of itself make it interest-bearing.
As to interest on claims secured by a lien which is given priority
and which undoubtedly come within the case of American Iron Co.
v. Seaboard Air Line, there seems to be little doubt. As to cases
wherein there is no lien but only a priority declared by statute or by
42
MICHIGAN LAW RBVIRW
the six months priority rule or by other usages and rules of equity,
these cases present more difficulties.
We have two very important Federal Appellate Court cases15
wherein interest was allowed on claims for supplies which were pre
ferred by the so-called six months' rule. In each of these cases there
were enough funds to pay such supply claimants in full with inter
est, without encroaching on the mortgage security.
A case presents much greater difficulties wherein the holders of
priority claims ask interest on the same, subsequent to time of ap
pointment of a receiver, and if such interest is paid it must be taken
out of the corpus of the estate and so reduce the amount payable to
the mortgage creditors. This situation is fully discussed in the case
of New York T. Co. v. Detroit T. & I. Ry. Co. (1918) 251 Fed. 514.
The court in that case concedes that in his circuit the rule prevails
that six months' claims are payable out of the earnings of the re
ceivership, or even in a proper case, from the corpus of the com
pany's property in preference to the mortgages foreclosed. The
court concedes that the case before him (mainly supplies of railroad
ties) comes under the six months' rule, and in refusing interest cites
as authority the case of Thomas v. Western Car Co., 149 U. S. 116.
The court, however, overlooks we believe, the fact that Mr. Justice
Shiras in the Thomas case specifically makes the statement that the
claim for car rentals did not come under supplies furnished from
day to day and necessary for the maintenance of the road. Further
more, the claim for interest in the Thomas case was attempted to be
inflicted on the mortgagors as a penalty for resisting claims. This
was refused. Since in the Thomas case the court refused to allow
the car claims as six months priority claims at all, it is very difficult
to apply what the court said concerning interest on those claims to a
case like the N. Y. Trust Co. case where the court actually concedes
that the claims themselves come under the six months rule.
Says Mr. Justice Lamar in Am. Iron Co. v. Seaboard Air Line
when commenting on the Thomas case :
"For manifestly, the law does not contemplate that either
the debtor or the trustees can, by securing the appointment
"Penn. Steel Co. v. N. Y. City Ry. Co. (1o14), 216 Fed. 458 at 471;
Texas Co. v. International & G. N. Ry. Co. (1918), 25o Fed. 742 at 745.
43
of Receiver, stop the running of interest on claims of the

highest dignity."
This is true whether the mortgage claims are not paid at all or
are paid in part or in full. The only justification of stopping pay
ment of interest on claims at time of appointment, is because in
cases of a deficiency of assets the cutting off of interest at time of
appointment amounts to the same thing as adding it to claims of
equal dignity and then in the distribution scaling these claims down
below the original claims plus this interest added. In other words,
as between claims of equal dignity and equal interest bearing quality
it does not help to add a certain per cent and then have to take it off
again for lack of funds. But this rule of interest does not apply as
between claims of different dignities, because it does not work an
equitable and ratable distribution. For instance, if $1,ooo and in
terest is due on first mortgage claims, and $1,ooo and interest is due
on second mortgage claims, all other things being equal and we cut
off the interest on the first mortgage claims, we are actually depriv
ing the first mortgage holders of what they are entitled to by con
tract of mortgage. If the contract of mortgage says so, this interest
is covered by the pledge, and the court can not cut it out in favor of
the second mortgagee. Does it make any difference if the priority
claimant bases his claim on a statute or usage and rule of equity
rather than on a contract lien? Judge Sater in the N. Y. Trust Co.
case, concedes that the six months claims have priority over the
mortgage claims, but refuses to allow interest on the six months
claims beyond the time of appointment of receiver. If Judge Sater's
proposition is sound, which gives the six months claims priority over
mortgages, then we are unable to see why interest on these claims
should not be given priority over the mortgages. If the supply
claimants have their money used and tied up to keep up the mort
gage security, they it would seem should be entitled to interest on
the same, as well as the mortgage security holders themselves are
entitled to interest. If the policy of the law says that supply claim
ants are and have added their property to the mortgagee's security,
and the security covers interest on the mortgage debt, then the supply
creditor has added his property and lost the earning power of that
property in order that the mortgage creditor may recover his debt
44
MICHIGAN LAW REVIEW
and also interest on same. We can not from the facts of the case of
AT. Y. v. Detroit, distinguish it on principle from Am. Iron Co. v.
Seaboard Air Line; Perm. Steel Co. v. N. Y. City Ry. Co. and Texas
Co. v. International G. N. Ry. Co., unless there were laches or some
thing of the kind which was not brought out in the report of the case.
We are aware of a number of decisions holding as does Judge
Sater, but we believe these decisions must give way to the principles
as stated above and laid down in Am. Iron Co. v. Seaboard Air Line.
A discretion as to allowing interest is allowed on matters of tort,
Eddy v. Lafayette, 163 U. S. 456 at 467; De La Rama v. De La
Rama (1915) 241 U. S. 154, at 159. However, in cases of contract
or the unlawful detention of money interest is allowed as a matter
of law. Lincoln v. Claflin (1868) 7 Wall., 132 at 139. If courts
will, as a matter of law, allow interest on contract claims and on the
unlawful detention of money, does not a claim for payment of sup
plies come under one or the other? If as a matter of law interest
is recoverable on such a claim, it becomes part of the claim, and if
this is so how can we separate the two and when the time of pay
ment comes allow the original claim to be preferred and not allow
interest on the same to be preferred.
INTEREST ON JUDGMENTS RENDERED SUBSEQUENT TO RECEIVERSHIP
Outside of the law of receivers, a judgment will ordinarily include
the principal sum due plus any interest up to the time judgment is
rendered. If at the time a receiver is appointed a claim has not been
reduced to judgment, the appointment of a receiver does not of it
self stop the running of interest on that claim subsequent to the
appointment of receiver. Neither does the appointment of a receiver
of itself prevent a judgment being rendered against the defendant
whose property has been placed in the hands of a receiver.18 If
judgment is rendered against the defendant subsequent to the time
of appointment of receiver, this judgment, like any other judgment,
should be for the full amount of the claim plus interest up to the
time of rendering judgment. This judgment does not become a lien
on property in the hands of the receiver, neither can a levy or
M Clark on Rece1vers, Vol. I, sec. 767.
45
execution be issued against such property.17 A judgment in such a

case is a liquidation of the claim and represents what the appoint
ing court or another court has determined to be the amount of the
claim. A judgment against a defendant whose property is in the
hands of a receiver is a measure of the plaintiff's claim at the time
the judgment is rendered, and as far as the amount of the judgment
is concerned it makes no difference whether the defendant is solvent
or insolvent.
When the owner of the judgment however, comes to present his
judgment to the appointing court and demands payment out of the
assets in the receiver's hands, then the appointing court before order
ing distribution must determine whether or not the defendant is
solvent and whether or not all proper claims can be paid in full. If
insolvency is found, then some or all claims must be scaled down.
If the court can distribute equitably by refusing to consider interest
after appointment of receiver, then a judgment rendered subsequent
to appointment must be adjusted to its value at time of appointment
of receiver. Payments are to be made on adjudicated claims ; not on
the amount due upon the claims when adjudicated.18 When the ap
pointing court comes to allow this adjudicated claim it will therefore
determine the value of this claim as of the time when insolvency
occurred or at the time when distribution is made according to the
rule of interest which the distributing court adopts.
INTEREST WHEN SOLVENCY IS SHOWN
We have discussed at length the payment of interest in cases of
insolvency and shown that insolvency and appointment of receiver
does not take away the interest bearing quality of a debt, although
it may be stopped at time of appointment in certain cases where the
stopping of it at this time will not militate against an equitable and
ratable distribution of the assets. If the appointment of a receiver
in some way did stop the running of interest on claims, as some
courts hold, then it would be difficult in theory to restore this interest
bearing quality when solvency was determined. However, if the
debt has never lost its interest bearing quality, then the showing of
Clark on Rece1vers, Vol. I, sec. 766.
'White v. Knox (1883), 111 U. S. 784.
46
MICHIGAN LAW REVIEW
solvency not only recognizes the interest bearing quality of the debt,
but in addition means that there are funds on hand sufficient to pay
interest up to the time of payment. Although there are many con
tradictory decisions on the subject of interest when there is in
solvency shown, nevertheless, the decisions are generally uniform in
holding that when solvency is shown, debts shall draw interest as
if no receiver had been appointed.1'
Cincinnati, Ohio.
Ralph E. Clark.
See Note 11, supra.
PLURALITY OF ADVANTAGE AND DISADVANTAGE IN

JURAL RELATIONS
A RECENT writer has inveighed, not without some declamation,
against the use of rhetoric in the field of law-making.1 But
rhetoric finds a place, and often an unprofitable one, not only in
legislation, but even in technical legal analysis. Metonymy (change
of name) has often been pointed out. When we say that X is the
owner of blackacre, what we mean is that X has certain legal ad
vantages concerning blackacre; in other words, that X is the holder
or dominus of claims (rights) and powers concerning certain land.
Synecdoche (saying more or less than is meant) is very commonly
found, and the illustrations are numerous in the interpretation of
statutes. When "full faith and credit" are to be given to the judg
ments of another state certain exceptions are sometimes made, as,
for example that the judgment must be responsive to the pleadings
where the defendant has not appeared. Again, a right 'against the
whole world' may mean something less extensive than the words
imply. Personification is a useful and necessary rhetorical figure
often employed by the law, not, of course, in mere words, but in
deeds, as when, for example, a barrel of molasses which contains too
much sulphur is condemned to destruction. Even the attribution of
legal capacity to a human being amounts, in essence, to legal per
sonification. Pleonasm (the use of redundant words) is a common
vice often resorted to out of caution that nothing shall be omitted.
It finds expression in such phrases as 'rights, claims, and demands,'
and 'transfer, set over, alien, and convey.' Metaphor also abounds,
as when we speak of an agent 'representing' his principal, of 'trans
ferring' land, or of 'assigning* a contract.2
'Tourtoulon, "Les Principes philosophiques de l' Histoire de Droit":
Author's appendix to American edition : Modern Legal Ph1losophy Ser1es,
XIII.
1 Aylett v. Minnis (1791), Wythe 219 (225) : "When one saith he deviseth
land, or bequeaths any other thing, the terms are elliptical ; some words are
left out but which are understood ; and in such a case, the testator must mean
that the devise or bequest shall have, not a sensible immediate operation upon
the land or other thing said to be devised or bequeathed, but a mystical opera
tion on his dominion, right, property, over to, in the land or other thing."
In a note (c) to the edition of 1795 it is quaintly remarked : "Words have
MICHIGAN LAW REVIEW
Other figures and abundant illustrations for all of them no doubt

can readily be found. Some of these figures can not be dispensed
with, and perhaps all of them are at times useful ; but metaphor and
metonymy, which may be put in the useful group, are especially
dangerous. In the ordinary case, like synecdoche, they serve the
purpose of colloquial abbreviation, but in the analysis of new prob
lems, and, particularly, borderline cases, they must be used, if used
at all, with great caution. In these cases, and in every instance
where accuracy of legal analysis is demanded, rhetorical figures of
any sort and abbreviated forms of expression must be abandoned
for precise and fundamental terminology.
I
In legal analysis the starting point is jural (legal) relation. In a
given situation of fact, the jural relation must be isolated and its
content fully and accurately defined.3
A jural (or, concretely, legal) relation is a situation where one
person (who may be called the 'dominus' or 'holder') can control his
conduct adversely as against another person (who may be called the
'servus' or 'bearer') or where the dominus can control the conduct of
the servus, with the aid of the law. It will be seen that there are
two classes included under this definition : ( 1 ) where the dominus
can control his own act adversely, with the aid of the law,4 toward
the servus; (2) where the dominus can, with the aid of the law,
been called winged ; and they well deserve that name when their abbrevia
tions are compared with the progress which speech could make without these
inventions."
1 For an extended examination of this concept, see Cou L. Rev. ( 192o)
XX, 3o4: "Various Definitions of Jural Relation."
* It is not sufficient in jural relations to say that an act can be controlled
with "legal effect", for illegal acts also have legal effect in this that they create
and destroy jural (legal) relations. But since illegal acts are not aided by the
law for the legal advantage of the actor, the capability of performing such an
act does not constitute a jural relation. Capability of committing a tort or
of violating a contract is not a jural power but a simple power. (A discus
sion of quasi jural relations appears above.) Again, there are capabilities for
acts which are legal and which have legal consequences, but which do not
constrain others, and which, therefore, do not constitute jural relations (e.
g., offer, abandonment, estoppel).
JURAL RELATIONS
49
control an act of the servus. Each of these two situations has a

double aspect, and the four aspects may be shown in a diagram:
Table I.
DOMINUS
SERVUS
CORRELATIVES
ADVANTAGE
Privilege
Immunity
DISADVANTAGE
Liability
Inability
Disability
*>
Duty
Power
Claim
[Explanat1on:The arrows indicate the direction of the act. The

brackets mean that the act can be obstructed.]
The dominus (or holder) in a jural relation has a certain advan
tage as against the servus (or bearer). This advantage is either a
power, or a privilege, or an immunity, or a claim (right). Like
wise, when a jural relation exists, the servus (or bearer) has a cer
tain disadvantage as against the dominus. This disadvantage must
be either a liability, or an inability, or a disability, or a duty.
When the dominus has a 'power', he can act toward the servus
with legal constraint; for example, an unpaid creditor may bring an
action against his defaulting debtor; the debtor is under the dis
advantage of a 'liability' to be sued. When the dominus has a 'priv
ilege' he may decline with legal constraint an act toward the servus ;
for example, he may refuse to testify in an action when called as a
witness, upon the ground of liability of incrimination ; the disadvan
tage of the servus is an 'inability' to require the dominus to act (i. e.
to testify). When the dominus has an 'immunity' he can repel, with
legal constraint, an act of the servus ; for example, the dominus can
prevent the servus from taking his land in eminent domain proceed
ings, on the ground of statutory exemption ; the disadvantage of the
servus is a 'disability' to act against the dominus. Lastly, the dominus
may have a 'claim' (right) against, the servus to have an act per
formed by the servus ; for example, to render services under a con
tract; here the disadvantage of the servus is the 'duty' to do the act.
In addition to jural relations of the strict type illustrated, there are
also situations which resemble jural relations, but in which there is
MICHIGAN LAW REVIEW

lacking in the one asserting an advantage, a capability5 to make it
effectual with the aid of the law. These relations may be called, for
want of a more specific name, quasi jural relations. Where it is
necessary to distinguish the two kinds, the various advantages as
serted in quasi jural (legal) relations may be called 'simple advan
tages', and the advantages of jural (legal) they may also be called
'nexal'relations may be called 'nexal advantages.'
An illustration of these quasi jural advantages will be serviceable
at this point.
A parol gift made by A to B not accompanied by delivery of the
chattel invests B with a simple claim of title to the chattel.8 If A
dies, trover could not be maintained by B against A's executor for
refusal to deliver. If B makes a demand on the executor for delivery
of the chattel, the executor may decline. The executor's advantage
is a privilege, but it is a simple privilege since the refusal of the
executor in no way affects the conduct of B, nor does the law, in
the situation stated, in any way interpose its aid. The executor can
not and need not ask legal assistance in declining B's demand based
as it is on a (simple) claim which is legally ineffective. It will be
"Capability' is used here to distinguish it from 'capacity'. Capacity is
the general attribute of personality; it is the base upon which 'capabilities'
(advantages) and disadvantages are founded. A person may have a capacity
for a specific claim or power without being the actual holder of that claim
or power. The antonym for 'capability' does not seem to be needed for the
convenience of legal analysis, nor does the disadvantage side of jural rela
tions seem to require a term with a function similar to 'capability'. The word
that naturally suggests itself, 'incapability', would be as awkward to designate
a duty as is the word 'obligation' as applied to a liability, (cf. Salmond,
"Jur1s."* 77.) It is sufficient to speak of 'capacity for jural disadvantages',
or more specifically 'capacity for legal duties and liabilities', and when, in
definition or paraphrase, an introductory word is necessary the general term
'disadvantage' may be employed.
8 Probably the most extensive field for the operation of the concept
'simple claim' is in connection with the 'exceptio' of Roman law and the
'Einrede' of modern civil law. See Ga1us, Inst. IV, 115-126; Poste,
"Ga1 Inst. Jur. C1v."* 564 sq. ; Bethmann-Hollweg, "R6m. Zrv. Pr.," II, 388;
Leonhard, "Irrthum," p. 3o1; Bekker, "Pand." I 28; Keller, "Rom. Zrv.
Pf." 34- Imperfect legal relations which may be perfected by unilateral
acts (e. g., ratification), also furnish many interesting illustrations of quasi
jural relations.
See also note 9 post.
JURAL RELATIONS
51
observed in the illustration just given, that B is the holder of a

simple claim, while A, or his executor, is the holder of a simple priv
ilege. B has a (simple) claim to have the chattel delivered to him
on demand; A, or his executor, has a (simple) privilege to decline
to deliver the chattel on demand made.7 A conflict of this kind can
never exist in jural relations. If B has a nexal claim to have an act
done by A, A cannot have a nexal privilege to decline the act re
quired, though A does have a naked privilege to decline (i. e., he
may actually decline and thereby subject himself to the sanction
flowing from a violation of his nexal duty).
'Acts with respect to the existence or non-existence of jural relations
are of four kinds as shown in the following diagram :
Jural
Non-Jural
Valid jural acts create nexal jural relations (e. g., offer and acceptance).
They need not be further considered at this time. Void acts also need no
further consideration because they constitute neither jural (nexal) nor quasijural relations.
Voidable jural acts create jural relations (e. g., grant of land by an in
fant), but they are subject to the infirmity that the jural relation may be ter
minated by the will of another (e. g., the infant, in the example given). Unless
the act is disaffirmed the (nexal) power to terminate the relation is itself
extinguished in the lapse of time.
Ineffective jural acts do not immediately and directly create nexal jural
relations, but they bring into existence a legal 'substrate' (that very term has
been used by the courts: Whitney v. Dutch (1817), 14 Mass. 457) upon
which a nexal jural relation may be founded; for example, the executory
promise of an infant. Until affirmed, the 'substrate' is a quasi jural relation.
When affirmed, the quasi jural relation is transformed into a nexal jural re
lation. Whether the nexal relation 'relates back' is a matter of controversy
(cf. Edmunds v. Mister, 58 Miss. 765) but the preferable technical operation
as between the same parties is to validate the relation, with all its incidents,
from the beginning. Interesting questions may arise where the quasi jural
relation is not affirmed generally but with qualification. Theoretically, no
reason appears why this may not be accomplished.
A void act is non-jural; it is so far wanting in legal effect as between the
parties that no legal relation or 'substrate' is created at the time of the act ;
nor can the act later be affirmed without an independent jural act. (In some
casesillegalitythe act can never be validated. For example, a promise to
perform an act which is contrary to good morals can not be made valid by a
5a
MICHIGAN LAW REVIEW
When a creditor A, holding an assignable chose in action against

B, transfers it to C, and, later, makes a second assignment of the
same chose in action to D, both acts of A are the exercise of simple
powers. These acts of power of A involve no constraint on the con
duct of either C or D, nor as against C or D are they adversary
acts, (i. e. requiring the servus to limit his conduct after the act is
completed.) As against the debtor, B, however, the power act (i. e.
the assignment) is nexal since it requires him to limit his conduct in
accordance with the legal effect of that act subjoined to further
acts of the assignee. Assuming that the assignment first acted on
in good faith is legally effective,8 if D (the second assignee) first
gives notice of his (simple) claim (against B) to B in good faith,
and in good faith on the part of B and D, the claim is paid, then D
has exercised as against C (the first assignee) a (nexal) power
the effect of which is to destroy the nexal claim of C against B.
C, (the first assignee), however, as against A (the original creditor),
had a simple immunity against the making by A of a second assign
ment to D. This simple immunity was not effective to protect C
against the destruction of his nexal claim. In the ordinary case,
new promise upon a new consideration.) An ineffective act is also a nullity
until it is affirmed (e. g., executory promise of an infant), but it differs from
a void act (such as/ may be affirmed) in this that an ineffective act may be
validated by a new dependent jural act (e. (t., simple ratiflcation by an infant
after attaining his majority, of a power of agency: Whitney v. Dutch, 14
Mass. 457) while a void act can be validated (if at all) only by a new, inde
pendent jural act (e. g., in the case of a contract, upon new consideration).
A void act has no quasi jural 'substrate'.
The illustration, above, of a gift without delivery, perhaps goes to the
verge of a quasi jural relation, since it seems difficult to imagine how the act
now ineffective for want of delivery can be validated without delivery (cf.
Gallagher v. Dohany, 65 Kans. 341, 69 Pac. 33o) or its equivalent. Yet,
situations may arise where the quasi jural character of the act may be dem
onstrated. Thus, if the donee should inadvertently acquire the detention of
a chattel theretofore verbally 'given' to him but not delivered, the donor may
by assenting to the possession of the donee, validate the ineffective gift; and
in that case the validating act (if general) would also as between the parties
carry with it all accessory relationsaccretions, interest, etc. Whether third
persons could attack the situation on the theory of 'relation back' would be
determined, or might be determined, on other grounds.
8Since we are not concerned here with actual legal solutions of jural
problems, illustrations will in general be disposed of hypothetically.
JURAL RELATIONS
53
where plural advantages and disadvantages are not present in a

given legal situation, a simple immunity would be effective against
adversary acts. Thus, the title of A in a chattel can not be divested
by B, or any other person in the absence of other operative facts.
A has a simple immunity and any attempted transfer by B of A's
title would be exercise not of a nexal, or of a simple power, but of
a naked power.9
8The manifest difficulty of dealing in a systematic way with quasi jural
relations, the alogical character of these relations, and, especially, the vexa
tion of effort to draw a sharp line between simple legal advantages and naked
claims and powers, naturally presents the question, whether the effort is
worth while. But it can not be disputed, whatever the labor required to bring
order out of chaos, that the usages of speech proclaim the existence of these
various situations of fact, and it would seem to follow that the necessity of
distinguishing them cannot always be avoided. Three general methods of
solution are possible:
1. The first perhaps is no solution at all. It would, so it seems ignore
any distinction between jural (nexal) and non-jural relations. According to
this view what is not forbidden "is just as real as a rule of law as a rule
that forbids" (cf. Hohfeld "Fund. Legal Concepts," p. 48, n. 59). The dis
credited philosophic effort to milk a he-goat through a sieve could hardly be
less productive for legal analysis than this expansive and highly indefinite
program for the law. If it be answered that legal analysis works with this
apparatus, it may be replied that it would work equally well without it, as is
manifest in countless decisions of the courts.
2. A second solution is to ignore any distinction between simple and
naked legal situations. Since there is always some danger of an art becoming
too complex for practical use, this answer has much to commend it. A
modified form of this solution would be to accept some of the more important
distinctions suggested by the next solution.
3. The third solution would attempt to distinguish definitely the fields of
simple relations from the more primitive types in accordance with the usage
ventured for illustrative purposes in the above text. It remains to state the
rationale of this practice as follows :
Simple power (relation) is any situation where one may project an act
toward another with legal consequences, but without the constraining aid of
the law. There are two varieties: (a) illegal powers (e. g.. tort) : and (b)
legal powers (e. g., offer).
Simple privilege (relation) is a situation of non-subjection to a nexal
claim of another, not accompanied by a coincident, adversary jural (nexal)
relation, of which another is dominus, and where the correlative (simple)
inability is not reciprocal to a nexal liability (e. g., simple privilege to refuse
payment of a simple claim).
Simple immunity (relation) is a situation of non-subjection to a nexal
54
MICHIGAN LAW REVIEW
The example of the chose in action above discussed with reference

to some, but not all, of the jural and quasi relations involved in the
legal situations given in a common and uncomplicated case, may
suffice to demonstrate the danger of relying too much on meta
phorical, metonymic, or abbreviated figures in the analysis of legal
problems, and it perhaps sufficiently shows the points of distinction
between simple and nexal legal advantages, without further illus
tration.
II
Jural relations, consisting of four distinct types of acts under the
control of one person as against another, may be represented not only
by a system of correlatives where a distinctive name is given to the
dominant and servient side of each jural relation, but an examinapower, not accompanied by a coincident, adversary jural (nexal) relation, of
which another is dominus and where the correlative disability is not reciprocal
to a nexal duty (e. g. simple immunity against transfer of one's title.)
Simple claim (relation) is any situation where one may claim an act
from another but where the claim lacks legal force (a) because of invalidity
in the premises (not amounting to illegality, e. g., 'lex perfecta') or (b) be
cause the premises are incomplete. In the first type (a) of claim (invalidity),
a rough, general test of its character as a simple claim would be its sufficiency
to support a judgment on a motion in arrest after an overruled demurrer.
In the second type (b) of simple claim, the incompleteness may occur (i)
because, although a jural relation exists, the simple claim is only a preliminary
or partial element of its content (e. g., simple duty of the master to provide
his servant with a safe place to work) (cf. note 13, post) ; or (ii) because an
act essential to a complete jural nexus has only been partially completed (as
in a defective 'juristic act', e. g., oral gift without delivery).
All other situations by exclusion would be naked, non-legal situations
of fact.
Another, special method of solution would be to attempt to find suitable
terms for each simple and each naked, legal situation, avoiding the use of
those employed for nexal relations; for example, a 'claim' not correlative to
a nexal duty, might be called a 'demand', etc. ; but invention here encounters
the great, if not insuperable, difficulty of overcoming an inveterate usage
which has appropriated a single series of terms for every variety of legal and
non-legal situation, and it seems best, therefore, to compromise with it.
Since it is not reasonable to expect that the detailed explanation of the
third solution above, will be regarded as of enough practical importance to
require vigorous application, a rough, general test of quasi jural relations, to
differentiate them quickly from the primitive types, may be proposed as fol
JURAL RELATIONS
55
tion of the content (the act which is the expression of conduct) in

jural relations, discloses an internal relation among the four types
of acts, which may be systematically arranged and described.
Contraries. In contraries there are opposed directions of the con
tent (act) of the jural relation. In 'power' the dominus acts or has
a capability of acting, adversely, with the aid of the law against the
servus. In 'claim', the jural act has a contrary motion, in the direc
tion of the dominus from the servus. Power and claim may, there
fore, be denominated contraries. Since, also, each of these acts pro
ceeds without interruption either at the point of beginning or at the
point of ending, these two jural relations may be called 'progressive
jural relations.' Power and claim are the principal types of jural
relations, and the other two jural types, privilege and immunity, are
only special varieties employed for the convenience of speech.
Reciprocals. These are the sub-types of power and claim, ar
ranged, respectively, with their principal types. Privilege is a special
kind of power ; and immunity is a special kind of claim. According
ly, power and privilege are reciprocals. As already suggested, the
term privilege is used for convenience of speech to indicate an irreg
ular or abnormal kind of power ; and immunity, for like convenience,
is used to indicate an irregular or abnormal kind of claim. It would
be inconvenient to say that one has privilege to decline the negative
act of not uttering a slander while giving testimony in a lawsuit or
when answering in good faith a request for information concerning
a former employee. In such a case, it also seems over-emphatic to
assert a (jural) power to utter a slander. Therefore, the declinatory
aspect (privilege) of the act is united with its processive aspect
(power) under the expression "privilege to [do the act]" or, objec
tively, a "privileged act." Privilege, therefore, is usually employed
to indicate an effective declination of a negative act in a situation
which departs from the general rule.
Immunity has a similar relation to claim and is employed to indi
cate an effective repulsion of a positive act in a situation which delows : (a) they either have legal consequences when put in motion or (b)
they have legal color. It may be insisted, however, that a severe regard for
the specific applications of the nexal relations is often of major importance
in technical analysis of obscure legal problems, and that in no case, however
simple, can they be misapplied without peril.
56
MICHIGAN LAW REVIEW
parts from the general rule. For example, one may be immune from
a prosecution because of a general or special exemption.
It is to be particularly noted, while the usage of speech gives to
privilege and immunity a special application, that in jural relations,
power and privilege, and immunity and claim, respectively, are
always reciprocal. Thus, in the claim (right) of corporal integrity,
the content of the claim (right), the negative act or acts which make
the claim legally effective, is reciprocal to an immuity against the
positive act or acts which infringe the claim (right).
Sub-Contraries. Privilege and immunity are sub-contraries, in
the sense that obstructed acts have contrary directions. In a priv
ilege, the dominus can obstruct (decline) his own act as against the
servus with the aid of the law ; in an immunity, the dominus can
obstruct (repel) an act of the servus toward the dominus. This
group may be called 'regressive jural relations'.
Negatives. This category relates not to the direction of the con
tent (acts) of jural relations, but to the affirmation or denial of a
quality in the content (acts.) There are two sets of negatives, power
and immunity, and claim and privilege.
When a jural power exists, the dominus can act adversely with
legal effect toward the servus. In an immunity, the servus cannot
act effectively against the dominus. When a jural claim exists, the
act of the servus may be required (it is attracted) by the dominus.
In a privilege relation the act of the dominus cannot be required (it
can be declined).
These various cross connections in jural relations may be con
veniently summarized in the following diagram :
POWER
Table II.
JURAI, OPPOSITION
contraries . . .
CLAIM
_. .
tWes-"""
r1Ves_
sub-contraries
IMMUNITY
"This table which is adapted from the 'scheme of opposition' found in

elementary textbooks in logic cannot be carried out into the so-called 'laws
JURAL RELATIONS
57
III
In a quasi jural relation there may be not only a coincidence of
opposing quasi jural advantages in the same act which is the con
tent of the relation, but this opposition, when it exists, is also one
of logical conflict. Thus, if X has a claim against Y which is
barred by the statute of limitations. X has a simple claim against Y
to an act of performance, but Y has a simple privilege to decline
performance. This logical conflict may exist in quasi jural rela
tions because neither quasi dominus has the power to make his will
effective by the aid of the law. Since claim and privilege are jural
negatives (see Table II), it is evident that in jural relations (strict
sense) such a conflict could never exist. Moreover, as to the con
tent of a single jural relation there can never be any opposition of
contraries, sub-contraries, or negatives. If conflict appeared in any
one of these respects, it would logically destroy the idea of jural
relation.11
Conflict is of two kinds: (a) logical; (b) potential. Logical
conflict may exist in quasi jural relations considered singly or in
combination, either with other quasi jural relations or with nexal
(jural) relations. Potential conflict may exist in all cases where
logical conflict may arise and also where there are plural jural re
lations arising out of the same operative facts. Potential conflict
may be increased by the introduction into the legal situation of other
persons with jural advantages or disadvantages ; as, for example, in
suretyship, trust, common ownership, joint and several acts.12
of opposition' as in logic. Metaphorically, perhaps, power and claim are
forms of universal affirmation and negation depending on the positive or nega
tive content of the relation, and in like manner, privilege and immunity might
be considered as forms of particular affirmation and negation. If such a re
semblance may be asserted, it is clear that it ends there, since jural relations
are not reducible as such to logical propositions.
"In continental works, the subject of conflict of jural relations is treated
under the title 'collision of rights': Dernburg, "Pand."* I 42; Holder,
"Pand." 65; Bekker, "Pand." I 24; G1erke, "Pr1vatrecht," I 36;
Regelsberger, "Pand." I 55.
UB. G. B. 1631 provides that "the care of the child's person (by the father,
by virtue of his parental power : B. G. B. 1627) includes the right and the duty
* * * to exercise supervision over him." This is an instance where the same
act is the content of plural jural relations. It is not a case, as it might seem,
58
MICHIGAN LAW REVIEW
Having regard to a simple legal situation in which the operative

fact* (a) concern only two persons, (b) involve not more than two
coincident jural or quasi jural relations, or either of them, and (c)
in which temporal priority of one relation over another is ignored,
we may show the variety of abstract permutations of jural advan
tages and disadvantages in the following table :
Table III
COINCIDENCE OF JURAL RELATIONS
DOMINUS
SERVUS
D
A
A
D
AA
DD
AA
DD
AA
DD
AD
DA
AD
DA
AD
DA
AD
DA
[Explanation: A means the advantage of the relation, and D the dis
advantage. Roman letters indicate nexal (jural) relations; italics indicate
quasi jural relations. For the purpose of indicating coincidence of specific
jural relations, these specific relations may be numbered. Thus a jural power
is A1, a jural privilege is A8, a jural immunity is A9, and a jural claim is A4.
The specific jural disadvantages will have a corresponding designation (e. g.,
a jural liability is, D1).]
When it is recalled that each jural or quasi jural advantage may
be any one of four distinct varieties :power, privilege, immunity,
claim:it is readily seen that the permutations expressed in terms
of these specific relations will be numerous even in the simple situa
tions above represented. In order that the argument may be better
understood, a few of these coincidences will be selected and illus
trated in types of case of common occurrence and free from tech
nical difficulty in two aspects: (a) congruence, and (b) conflict:
of logical conflict; the 'right' and the duty are not in the father in the same
jural relation. The 'right' in the father against the child is a 'power' "to
exercise supervision." As against third persons, this supervision is a duty,
for the father is responsible for the child's unlawful acts (b. g. b. 832).
JURAL RELATIONS
59
SERIES I : CONGRUENT COINCIDENCE

CLASS: A A D D
1. Claim + Claim : Duty + Duty.
A4 A4 D4 D4 : Where a creditor receives his debtor's check as condi
tional payment of the debt. In this case the creditor has two valid claims
which are correlated by two legal duties. (Other jural relations also exist
here, but they are not now in question. This qualification will not hereafter
be repeated.)
A* A4 D* D4 : New promise to pay a debt barred by limitation (where
action lies upon the new promise.) In this case the old debt has lapsed by
time into a simple claim and the new promise has created a new nexal claim.
2. Claim + Immunity : Duty + Disability.
A4 A* B4 B*: Exemption of chattels from levy by execution. In this
case, the owner of the chattels has a negative claim, i. e., that the plaintiff
do not cause the levy to be made, and a positive immunity that the plaintiff
refrain from causing the levy to be made. The immunity is, of course, only
the reciprocal of the claim, and its correlative is disability to proceed with the
levy with the support of the law. While the sheriff, contrary to the immu
nity, may proceed to execute, yet that act is not supported by the law and
is illegal. It is a simple power act.
A4 A* D* D8: Where the creditor has a claim secured by mortgage,
assuming the rule to be that the debtor cannot even by tender of principal and
interest to maturity (though the contrary seems the better rule) demand a
release of the security, the claim of the creditor (mortgagee) is nexal, and
his immunity against a termination of the relation before maturity of the
debt is a simple immunity, since there is no duty resting in the mortgagor
not to terminate it by tender of payment in advance. The mortgagor is
simply disabled by the terms of the agreement from making his will effective.
3. Claim + Privilege : Duty + Inability.
A4 A* B4 B9 : Negotiorum gestio, e. g.. salvage of a shipwrecked ves
sel. The salver has a nexal claim for his services based on his nexal privilege
of saving the chattel. Ordinarily, i. e., when things are not in danger of loss
or destruction, interference with a thing of another is tortious. Since the
situation is an abnormal one, the intermeddling of the salver is properly
called a privilege which is a special variety of power.
A4 A' D4 >1:Bailment of a chattel for labor upon it. The bailee has
a nexal claim for his services, and the bailment gives him a simple privilege
of improving the chattel. The situation is not like the one last above described
where one may intermeddle because of an abnormal situation. What the
bailee does is done for his principal, and his acts of dealing with the chattel
are not against the will of the principal but in accordance with it. Therefore,
he exercises not a nexal but a simple privilege.
4. Claim + Power : Duty -f- Liability.
A4 A' D4 V : Pledge. The creditor has a nexal claim to payment at
maturity of the debt, and a nexal power to sell his security if the debt is
not paid.
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MICHIGAN LAW REVIEW
A4 A1 D* D1: Pledge. The creditor has a nexal claim to payment at

maturity of the debt and a simple power to repledge the chattel for a greater
sum than the debt.
SERIES II : CONFLICTING COINCIDENCE
1. Claim + Duty : Duty + Claim.
A4 D4 D4 A4: Pledge. The creditor has a nexal claim as last above
shown, but the debtor also has a nexal claim for the return of the chattel
upon making payment or tender of payment. It will be noticed that the
conflict here is not in the same jural relation, but between two distinct jural
relations. It is also to be emphasized that the conflict is not logical but
potential.
A4 D4 D* A4 : Pledge. At maturity of the debt, the bailor has a claim
(right) to be reasonably notified of the time and place of the sale, if the
bailee exercises his power of sale. If the sale is fairly conducted and no loss
can be shown on account of the failure to give notice, assuming the rule to
be that the bailor cannot recover even nominal damages, his claim to have
notice given is a simple claim independent of the event.11 There is present
also a coincident nexal duty to pay the debt.
2. Claim + Disability : Duty + Immunity.
A4 D8 D4 A9: Where certain chattels are exempt from levy, a land
lord though he has a nexal claim to payment of his rent is under a nexal
disability to make a distraint on the exempt chattels. The disability is nexal
from the fact that an attempt to do the disabled act is a violation of
nexal duty.
A4 D* D4 A8: Where an inadvertent wrongdoer has converted a chattel
into a new product of great value, assuming the rule to be that the original
owner cannot recover the chattel as improved, the original owner in this
legal situation has a nexal claim for the value of the chattel converted, but
he is under a simple disability to convey the new chattel to a third person
(that is to say, such an attempted transfer of title would not be a violation
of nexal duty not to do the act; it would be simply ineffective.)
3. Claim + Inability : Duty + Privilege.
" When it is said that a pledgee lies under a duty to give notice of sale
of the pledge and that the pledgor has a right to have notice, assuming the
rule to be as stated above (see Whipple v. Dutton, 175 Mass. 365, 56 N. E.
581, 78 Am. St. Rep. 5o1 (19oo), the statement is an abbreviated and inaccu
rate one (cf. note 9, ante). It is similar to the rule as commonly stated, that
a master must provide his servant with a safe place to work, which, also, is
inaccurate. There is no nexal duty not to be negligent or not to deceive apart
from consequences of actual harm to another (cf. Terry "Lead1ng Pr1n
c1ples," m), but there is, no doubt, considerable utility in these abbreviated
forms of legal expression as there is also in the emphasis of rights over
duties ((cf. Holmes in Am. L. Rev. 1871, V, 1, sq. Street, "Foundat1ons,"
III, 8, sq.), as indexesnothing moreto legal reasoning.
JURAL RELATIONS
61
A4 D9 D* A9: A tenant has a nexal claim against his cotenant net

to be interfered with in the tenant's use of a thing, but he is under a nexal
disadvantage (inability) to prevent the co-tenant's prior use of the thing.
Each may use the thing "when he can see his time."
A4 D9 D' A9: Bailment. Where a chattel has been bailed for improve
ment, the bailor is under a simple inability while the relation exists to require
negative acts of the bailee in performance of the contract, but the bailor has
a nexal claim to require negative acts of the bailee inconsistent with the
contract.
4. Claim -f- Liability : Duty + Power.
A4 D1 D' A1: Rescission. If goods are sold by X to Y "on sale or
return," before the option of return is exercised, X has a nexal claim but Y
has a nexal power to destroy it.
A4 D1 D' A1: In every case where there is a nexal claim (right) the
holder of the claim is subject to a simple liability that the bearer of the nexal
duty will not perform his duty. The violation of duty is not a nexal power,
for while it has legal consequences, the law gives no aid to the wrongdoer.
Since the power is not nexal, the correlative of it, likewise, cannot be nexal.
Albert Kocourek.
Northwestern University Law School.
THE CONSTITUTION OF THE EMPIRE OF JAPAN*

IN THE history of the Japanese people, five dates stand out above
all others. They are 66o B. C, when, according to legendary
account, the Empire of Japan was founded by the Emperor Jimmu ;
1853, when Commodore Perry, with an American squadron, an
chored offside what is now Yokohama and caused the opening of
Japan to foreign intercourse. 1S67-1868, when there was a restora
tion of the monarchy, marking the beginning of the Meiji Era of
Constitutionalism; and 1889, when the Constitution of Japan was
promulgated.
Up to the year 1867, Japan was like unto a mediaeval state. There
was nominally an Emperor, but in fact the Shogun was all-powerful.
But various causes had served to weaken the authority of the Shoguns, with the result that in 1867 the Tokugawa Shogunate sur
rendered its sovereignty to the Emperor.1 Curiously enough the
restoration of imperialism became the first step in the advance of
liberalism in Japan. Shortly after the young Emperor Mutsuhito
succeeded to the throne, on April 6, 1868, he took an Imperial Oath
in the sanctuary dedicated to the worship of his ancestors. This
charter oath which forms the Magna Charta of the political and
social life of Japan, contained five articles which, translated,2 read
as follows:
"1. Widely representative institutions for deliberation
shall be established, and the affairs of state shall be deter
mined in accordance with public opinion.
"2. The sovereign and the people shall unite as one man
in the vigorous execution of the policies of the Empire.
"3. The common people no less than the civil and the mili
tary officers shall be permitted to pursue the respective objects
of their lives, and we must see to it that no cause for discon
tent is given anywhere.
* By George A. Malcolm, Justice, Supreme Court of the Philippine Islands.
1 See Iyenaga, Const1tut1onal Development of Japan, 1853-1881, pp.
21-24.
'Translations of Baron Dairoku Kikuchi, Baron Nobushige Hozumi, and
Mr. Tsunejiro Miyaoka.
CONSTITUTION OF IAPAN
63
"4. Unworthy customs of old shall be abolished, and

things shall be adjusted in accordance with the eternal prin
ciple of justice.
"5. Wisdom and knowledge shall be sought throughout
the world, and the power of the Empire shall thereby be
strengthened."
The constitutional movement which then began in Japan was a
logical sequel to the restoration. Various imperial decrees provided
for a governmental organization including a council of state, a
senate, and local assemblies. Vigorous political agitation conducted
in favor of the establishment of a representative assembly elected by
the people resulted in the announcement of the Imperial Decree of
October 12, 1881, which definitely fixed the date of the establish
ment of such a National Assembly for 189o, and which paved the
way for the promulgation of a constitution. This transitory period
of nine years was then given up to the inauguration of important
reforms in the organization of the government and to the prepara
tion of a constitution.
To make ready for the constitutional changes promised for the
year 189o, a commission for the study of constitutional governments
headed by Ito Hirobumi (afterwards Prince Ito), was sent on a
tour of the United States and Europe. Ito's political ideas had re
ceived their first impression during his education in England. But
in Germany he met and fell under the influence of Prince Bismarck,
then in the zenith of his power. With a choice practically narrowed
down to England and Germany, the fact that the British Constitu
tion was unwritten and that a constitutional monarchy of the British
type was politically impossible in Japan, caused Ito to come to the
natural conclusion that Prussia, rather than England or any other
country, furnished the model best suited to Japanese needs. The
commission finished its investigation of foreign constitutions and
institutions in about a year. A bureau for the investigation of con
stitutional systems was then established to carry out the work of
drafting a constitution. Prince Ito was the chief of this bureau and
had associated with him, among others, Inouye Ki, Ito Miyoji, and
Kaneko Kentaro, who had been members of the foreign mission.
The final draft of the constitution was presented to the recently
64
MICHIGAN LAW RUVIEW
established Privy Council, of which Prince Ito was the President,

for confirmation, instead of to the Senate, a legislative body, or to
a constituent assembly. The Emperor is said to have been present
frequently in person during the sessions of the Council. Prince lto,
writing upon this subject, says: "The Sovereign himself presided
over these deliberations (in the Privy Council), and he had full
opportunities of hearing and giving due consideration to all the con
flicting opinions. I believe nothing evidences more vividly the in
telligence of our august Master than the fact that in spite of the
existence of strong under-currents of an ultra-conservative nature in
the council, and also in the country at large, His Majesty's decisions
inclined almost invariably toward liberal and progressive ideas, so
that we have been ultimately able to obtain the constitution as it
exists at present."8 The Constitution was thus prepared in a gov
ernment bureau, was then submitted to a specially organized and
select council of officials, and was always kept secret and away from
all contact with public opinion.
The Constitution4 was promulgated on February 11, 1889, by the
late Emperor Mutsuhito, whom the Japanese would like to have
known by his posthumous title, Meiji Tenno. At the same time,
there were issued the Imperial House Law, the Ordinance concern
ing the House of Peers, the Law of the Houses, the Election Law
for members of the House of Representatives, and the Law of
Finance. The constitution was in effect after the formal opening of
the Imperial Diet on November 29, 189o.
The Japanese Constitution is at least the outward symbol of the
transition from an absolute to a constitutional form of government.
Baron Hozumi, in an address delivered at the International Con
gress of Orientalists held in Rome in October, 1899, described the
fundamental principle of the Japanese Government as "theocraticopatriarchal constitutionalism."5 Yet there is nothing new and
8Quoted in Count Okuma Shigenobu, F1fty Years of New Japan, Vol
ume 1, p. 131.
'An English translation of the Japanese Constitution can be found in
Dodd, Modern Const1tut1ons, Vol. II, pp. 23-35, and in Count Okuma, F1fty
Years of New Japan, Vol. II. Appendix A.
8 Published in book form under the title, "Ancestor Worsh1p and Japa
nese Law," Revised Edition, 1913.
CONSTITUTION OF JAPAN
65
startling to be found in the constitution. The document merely

served to perpetuate much of the old and to cover the traditional,
political principles of the Japanese with a representative form.
To understand this idea fully and to be able to do justice to Japa
nese institutions, one has to keep constantly in mind the people and
their political psychology. The Japanese have ever been able to
maintain their ethnic unity and successfully to defend themselves
from an influx of alien races. Organized as "one great family," the
welfare of the individual is subordinate to the welfare of the family,
i. e., the country. The unconscious belief of the Japanese is, that the
Emperor reigns and governs the country absolutely by a divine right
inherited from his ancestors. In the preamble of the Constitution
prepared for His Imperial Majesty's signature, he was made to say
that "The rights of sovereignty of the State We have inherited from
Our Ancestors, and We shall bequeath them to Our descendants."
At a meeting of the Presidents of the Prefectural Assemblies held
just four days after the promulgation of the Constitution, Prince
Ito, the author of the Constitution, said, "The Sovereign power of
the State resides in the Emperor." Again in the opening chapter
of his Commentaries on the Constitution, this eminent statesman v
writes : "The Sacred Throne of Japan is inherited from the Im
perial Ancestors, and is to be bequeathed to posterity ; in it resides
the power to reign over and govern the State. That express pro
visions concerning the sovereign power are specially mentioned in
the Articles of the Constitution in nowise implies that any newly set
tled opinion therein is set forth by the Constitution ; on the contrary,
the original national polity is by no means changed by it, it is more
strongly confirmed than ever."9 A learned Japanese writer has ex
pressed the same thought in the following beautiful language:
"Theoretically he (the Emperor) is the centre of the State as well
as the State itself. He is to the Japanese mind the Supreme Being
in the Cosmos of Japan, as God is in the Universe to the pantheistic
philosopher. From him everything emanates; in him everything
subsists ; there is nothing on the soil of Japan existent independent
of him. He is the sole owner of the Empire, the author of law, jus' Commentar1es, English Edition, p. 2.
66
MICHIGAN LAW REVIEW
tice, privilege, and honour, and the symbol of the unity of the Japa
nese nation."7
There may be in theory a division of powers between the execu
tive, legislative, and judicial departments in Japan. In reality, how
ever, the outstanding and most unique feature of the Japanese Con
stitution is the dominance of the executive branch over the legisla
tive and judicial. The executive power is the government, and the
legislative and judicial merely exist to enable the executive branch,
that is the government, to functionate property. It is for this reason
that the Constitution opens with a description of the powers and
rights of the Emperor.
The very first article of the Constitution announces the Japanese
theory of government by stating that the Empire of Japan shall be
reigned over and governed by a line of Emperors unbroken for ages
eternal. Article 4 of the Constitution states that the Emperor is
the head of the Empire, combining in himself all powers of the State
and exercising them in accordance with the provisions of the present
constitution. He has the right to determine the organization of the
different branches of the administration, to exercise the supreme
command of the Army and Navy, and to determine their peace stand
ing, to declare war, make peace, and conclude treaties, to proclaim a
state of siege, to confer titles of nobility, rank, orders, and other
marks of honor, and to order amnesties, pardons, and commutation
of punishment. Article 5 of the Constitution provides that the
Emperor exercises the legislative power with the consent of the
Imperial Diet. The executive has the right to initiate laws, has abso
lute veto power over laws which have been passed by the Imperial
Diet, and can issue ordinances. The judiciary is made independent
of the executive branch of the government. Yet Prince Ito says
that as the sovereign is the fountain of justice, all judicial authori
ties are merely a form of the manifestation of sovereign power.8
Only in the hands of the Emperor is the power of amending the
Constitution. Prince Ito expresses this fundamental purpose of the
Japanese Constitution as follows : "The sovereign power of reign'Uyf.hara, Pol1t1cal Development of Japan, 1867-19o9, p. 23. See also
Chapter 2 of the same work.
Commentar1es, pp. 1o1-1o4.
67
ing over and of governing the State is inherited by the Emperor from
His Ancestors, and by Him bequeathed to His posterity. All the
different legislative as well as executive powers of State, by means
of which He reigns over the country and governs the people, are
united in this Most Exalted Personage, who thus holds in His hands
as it were, all the ramifying threads of the political life of the coun
try, just as the brain in the human body is the primitive source of
all mental activity manifested through the four limbs and the dif
ferent parts of the body."9 Even one of the most progressive of
Japanese considers the Imperial Family to be "the most valuable
heritage of the Japanese Nation."10
In every line of the constitution, there is emphasized the absolute
and autocratic authority of the Emperor. But the Emperor never
attempts a personal reign or an actual exercise of his vast powers.
He is merely the ceremonial head of the State. This wise passivity
has served to remove the Emperor from the active sphere of the
government and to perpetuate the reverence of the people for him
because it necessarily places him beyond censure and criticism.
While many features of the Japanese Constitution, as before indi
cated, show the influence of the German Constitution, yet in this
respect there is a difference between the German practice under
the former monarchy and the Japanese practice which, as a Japanese
writer has said, "is to be found in the fact that the Kaiser exercises a
personal rule and the Chancellor is only his Secretary, while the
Japanese Emperor does not exercise a personal rule and never has
done so for many centuries."11
Executive power is actually exercised by the Cabinet. This body,
like the Cabinet of the United States, is not expressly recognized in
the Constitution. The Constitution only mentions the Ministers of
State and requires them to sign laws, imperial ordinances, and im
perial rescripts, and makes them responsible for advice given the
Emperor. Yet, there is in the Japanese constitutional system a col
lective body of Ministers of State under the presidency of a Min* Commentar1es, p. 7.
" M1yaoka, Growth of L1beral1sm 1n Japan, p. 24.
11 M1kam1, Pol1t1cal and Const1tut1onal Development of Japan Dur
1ng the Last F1fty Years, 1 Ph1l1pp1ne Law Journal, October, 1914. p. 1o7.
68
MICHIGAN LAW REVIEW
ister President. The Ministers of State can be selected by the sov

ereign from any party or from no party at all. The ministers are
not responsible to the Diet but to the Emperor. No cabinet would,
however, wholly disdain the support of political parties. The Min
isters of War and Navy are officers in the active service of the Army
and the Navy. The powers of the Cabinet Ministers are determined
by the Emperor.
The Privy Council is a body separate and distinct from the Cabinet
although the cabinet ministers are members of the council ex officio.
The Council is made "the highest body of the Emperor's constitu
tional advisers." According to the Constitution (Art. 56), it is to
"deliberate upon important matters of state." The ordinance by
which the Privy Council was constituted specifies the important mat
ters concerning which it shall state its opinions.12
An extra-constitutional body of possibly even more influence than
the Cabinet or the Privy Council is the Genr'o or Elder Statesmen.
This is a small coterie of the most eminent and experienced Japa
nese, whom the Emperor consults on matters of importance. Gen
erally speaking, no change of cabinet is effected without their con
sent, nor is arty action taken, which might lead to the declaration of
war, the conclusion of peace, or the negotiation of an important
treaty, without consulting them."
The difference between the three bodies then is, that the Cabinet
is an administrative body, the Privy Council is a consultative body,
and the Genro is a select body whose members derive their influence
from the confidence reposed in them by the Emperor.
The legislative power of Japan is vested in the Emperor and a
legislature called the Imperial Diet. The Diet consists of two houses :
the upper chamber, the House of Peers, and the lower chamber, the
House of Representatives. The organization and legal powers of
the Diet are provided for by the Constitution and various laws and
ordinances.14 The two houses fail to correspond to similar bodies
Imperial Ordinance of April 28, 1888, revised by Imperial Ordinance
No. 216, 189o.
** See McLaren, Present-Day Government 1n Japan, XIX Asia, March,
1919, p. 236.
"See Law of the Houses of February 11, 1889.
69
in Great Britain for, whereas in the British system the House of

Commons is predominant, in the Japanese system, the House ot
Representatives does not have more influence than the House of
Peers. The Diet is convoked every year for a period of three
months. Each house has close to four hundred members. Every
law requires the consent of the Diet. Most of the important bills
are introduced by the Cabinet. The Emperor retains the veto power
which he exercises freely. In addition to its legislative functions,
the Diet has the following rights: (1) To receive petitions; (2)
to address the Emperor and to make representations to him ; (3) to
put questions to the Government; and (4) to control the financial
affairs of the State, a subject to which one chapter of the constitu
tion is given up, and which provides for the budgetary system."
The House of Representatives is an elective body. Practically
the only qualification for a candidate is, that he must be a Japanese
subject and over thirty years of age. Shintu or Buddhist priests,
Christian clergymen, teachers of religion, teachers in elementary
schools, and those who have business contracts with the central
government are disqualified from becoming candidates.19 The
House of Representatives necessarily finds it difficult to represent
public opinion and to obtain reform. It is principally because of its
nearly constant opposition to the government that occasionally an
advance is made.
The House of Peers is composed of members of the imperial
family (who, however, absent themselves from meetings), of certain
imperial nominees, and of representatives of the orders of the
nobility and the larger taxpayers.17 The tenure of office for elective
members is seven years and that of the others is for life. The House
of Peers cannot be dissolved ; it can only be prorogued. Such a body
will necessarily be controlled by the aristocracy and will be closely
affiliated with conservative and bureaucratic elements.
The judicial power is exercised by the courts of law in the name
of the Emperor. What these courts shall be, their organization, and
"As given by Prince Ito in his Commentaries, p. 62.
"Law of Elect1on, 1889; Rev1sed Elect1on Law of 19oo.
" Imperial Ordinance concerning the House of Peers.
JO
MICHIGAN LAW REVIEW
the qualifications for judges, is determined by law.18 There are fou1

grades of law courts in Japan and certain special courts. The
Judiciary has no power to interpret the constitution or to declare
invalid any law passed by the Diet and approved by the Emperor,
for this is a prerogative of the Emperor. Moreover, it cannot
adjudicate a suit to which the administrative authority is a party.
What is considered the most important function of the judiciary in
many other countries, as in the United States, to act as the protector
of the rights and liberties of the people, in Japan is left to the Court
of Administrative Litigation, a court dependent upon the executive
branch of the government. The reason for this is thus given by
Prince Ito : "Were administrative measures placed under the con
trol of the judicature, and were courts of justice charged with the
duty of deciding whether a particular administrative measure was or
was not proper, administrative authorities would be in a state of
subordination to judicial functionaries. The consequence would be
that the administration would be deprived of freedom of action."1'
The Bill of Rights of the Japanese Constitution is fairly extensive.
The purpose of the framers of the Constitution appears to have been
to protect the people from the evils of an irresponsible government.
The duties of Japanese "subjects" are two: Amenability to service
in the army and navy, and to the payment of taxes. The rights
guaranteed to individuals are of two classes : Personal immunities
and immunities as to property. The personal rights include appoint
ment to civil or military offices ; liberty of abode ; freedom from
arrest, detention, trial, and punishment unless according to law;
inviolability of domicile; trial by judges ; religious freedom in so far
as it does not conflict with public peace and order or their duties as
subjects; freedom of speech and press, and right of petition. The
immunities as to property are inviolability of private property ex
cept for public benefit and privacy of correspondence. The effective
ness of these guaranties has been greatly lessened because in the
enumeration of the rights of "subjects" in the Constitution, there is
usually a qualifying clause ending with the words, "according to the
" See articles 57, 58 of the Constitution and Law Relating to the Organ
ization of Law Courts of February 1o, 189o.
" Commentar1es, p. 1o9.
71
provisions of law." Numerous laws have thus served to restrict to

a large degree the rights of "subjects."20 In discussing liberty of
speech and press, Mr. Miyaoka assures us "that the limitations im
posed are for the good of the country ;" and it is to be presumed that
restrictions found in other laws would quite similarly, according to
the usual Japanese viewpoint, be considered as advancing the public
welfare.21 Another Japanese, more critical and outspoken, frankly
says that "that part of the Constitution which deals with the rights
and liberties of the people is a mere ornamental flourish, so long as
the Government is not responsible to the people."23
A true estimate of the merits and demerits of the Japanese con
stitution is difficult to make. Compared with other leading constitu
tions, it can. in the first place, in all fairness, be said that the Japa
nese Constitution is blessed with brevity and clarity. The interna
tional Japanese lawyer, Mr. Miyaoka, truly says that "the language
of the Japanese Constitution is so terse, so simple, and so direct, that
it is evidently a work of a group of men who lacked neither clear
ness of vision nor precision in the art of expressing thoughts."23
The Constitution, in the second place, seems suited to the circum
stances and aspirations of the people. At least it has attained for the
Japanese solidarity and security against disorder. The conclusion
of an American observer is, that the working of the new system of
government in Japan "has, on the whole, been satisfactory. * * *
Japan is deserving of the greatest credit for what was accomplished
in the first decade of constitutional government."24 Prince Ito, the
author of the Constitution, quite properly claims that "excellent re
sults have thus far been obtained, when it is remembered how sudden
" Code of Cr1m1nal Procedure, Penal Code, Law of the Exercise of
Administrative Authority of June 2, 19oo, Postal Law of March 13, 1ooo,
Telegraph Law of March 14, 19oo, Law of Public Safety and Police of March
1o, 1goo, Law of Publication of April 14, 1893, and Press Law of May 6,
19o9. The rights in property are governed by the Expropriation I,aw of
March 7, 19oo, as amended.
a Growth of Liberalism in Japan, p. 12.
"Uyehara, The Pol1t1cal Development of Japan, 1867-19o9, p. 186.
" Growth of L1beral1sm 1n Japan, pp. 3, 4.
" Clement, Const1tut1onal Government 1n Japan, Annals of the
Amer1can Academy of Pol1t1cal and Soc1al Sc1ence, March, 19o3, pp. 57-68.
72
MICHIGAN LAW REVIEW
has been the transition from feudalism to representative institu

tions."
Japanese publicists would be the first to admit that the Japanese
constitution is far less democratic than the constitutions of most
countries, but would pass on rapidly to contend that it is best suited
for the Japanese people. On a subject of such purely national con
cern, it would, of course, be presumptuous for a foreign critic to
proffer a contrary opinion. Yet no divine gift of prophecy is needed
to proclaim that in the future all important institutional movements
. in Japan will face away from oligarchy and toward democracy.
George A. Malcolm.
Manila, P. J.
M1ch1gan
Law
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Alan W. Boyd, of Indiana
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W1ll1am C. O'Keefe, of Michigan
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Jean Paul Thoman, of Michigan
NOTE AND COMMENT

James H. Brewster,Thousands of alumni and former students of the
Law School will learn with deep regret of the sudden death of Professor
Brewster in Denver, Colorado, on October y, 192o.
Professor Brewster was born in New Haven, Connecticut, April 6, 1856,
the son of Rev. Joseph and Sarah Bunce Brewster. He was educated at the
Hopkins Grammar School and New Haven public schools and was graduated
with the degree of Ph.B. from Sheffield Scientific School, Yale, 1877, and
from the Law School of the same University with the degree of LL.B. in
1879. From 1883 to 1897 he practiced law in Detroit at which place, on June
28, 1888, he was married to Miss Frances Stanton. In 1897 he was made
Professor of Law at the University of Michigan, and from 19o3 until the
severance of his connection with the Law School in 191o as a result of ill
health, he was Editor-in-Chief of this Review. His well-known book,
Brewster on Conveyanc1ng, was the result of his work and lectures on that
subject in the Law School. After recovering, in a measure, his health, Pro
fessor Brewster taught for a time in the Law School of the University of
Colorado. For several years, however, he had been in the active practice of
his profession in Denver.
*
74
MICHIGAN LAW REVIEW
Former students of Professor Brewster will remember him for his broad
interests, his geniality, and kindness. As a teacher of law, he was remark
able in his clearness of thought and expression. Members of the student
editorial board of this Review during the period covered by his editorship,
who, came into much closer contact with him than did the student body gen
erally, owe him a great deal for his stimulating personality and scholarship.
Pr1ce Regulat1on Under the Pol1ce Power.A recent Indiana law pro
viding for the regulation of prices at which all coal moving in intra-state
commerce in the state may be sold, has just received the sanction of the
District Court of the United States for the District of Indiana.1 The case
arose upon a bill of complaint filed by one of the operating companies to
enjoin the commission created by the Act from entering upon any of its
duties. Several aspects of the bill were deemed by the court to be premature
but the vital point in controversy was adjudicated, namely, as to whether or
not the state has any power at all to regulate profits arising from the industry.
In denying the injunction and dismissing the bill the court added one more
to the already large number of "businesses affected with the public interest"
of which phrase the Supreme Court of the United States has said, "We can
best explain by examples."2 Inasmuch as the opinion was rendered by a court
consisting of two circuit judges and one district judge it would seem to be
entitled to almost if not quite as much weight as though rendered by a Circuit
Court of Appeals.
The phrase "business affected with the public interest" was first used in
this country in an opinion delivered by Chief Justice Waite in the case of
Munn v. Illinois9 decided in 1876, holding that the business of storing grain
in elevators was so affected and is there quoted from an old treatise* of Lord
Chief Justice Hale. As applied in that and succeeding cases it has seemed
to mean no more than this, that there are certain classes of businesses which
may be regulated by the state to a greater extent than others to which the
term "purely private" has been applied. No precise test has so far been laid
down by the Supreme Court by means of which the limits of these two classes
can be distinguished. The attitude thus far steadfastly adhered to by the
Court may be illustrated by the following quotation from its most important
recent decision upon the point, German Alliance Insurance Co v. Lewis.8
After reviewing at length the cases following Munn v. Illinois, supra, the
court commented upon the group as a whole as follows : "The cases need
no explanatory or fortifying comment. They demonstrate that a business,
by circumstances and its nature, may rise from private to be of public con
cern, and be subject, in consequence, to governmental regulation. * * *
'The underlying principle is that business of certain kinds holds such a peculiar
1 American Coal Mining Co. v. The Special Coal and Food Commission of Indiana,
et al,
Fed.
(Sept. 6, 1920).
1 German Alliance Insurance Co. v. Lewis, 233 TJ. S. 389.
* 94 U. S. 113.
' De Port1bhs Mar1s, 1 Harg. L. T. R. 78.
8233 U. S. 389.
NOTE AND COMMENT
75
relation to the public interest that there is superinduced upon it the right of
public regulation.' " In order to arrive at a conclusion, as to the nature of
this "peculiar relation," which will constitute a basis for formulating a re
liable test as to when it exists, it is important to review briefly the historical
development of governmental price regulation.
Businesses of all descriptions were regulated during the Middle Ages and
later during our own colonial period and in the early years following the
formation of the constitution with scarcely a thought as to the basis upon
which the power of regulation rested, certainly without the existence of the
power being questioned. The assizes of longbows, books and beer barrels
-during the reigns of Henry the Seventh and Henry the Eighth, and the
various Statutes of Laborers are not unfamiliar nor are the colonial statutes
regulating interest on money, wages, bread, ferriage, mill tolls, wharfage and
various other services and commodities.* One suggestion may be gleaned from
a study of this mass of regulation which sheds some light upon the modern
regulatory tendencies and upon' the nature or the peculiar relation already
referred t. For the most part regulation, even in the Middle Ages, ex
tended only to necessities of life and this because competition as a protection
for the consumer was inadequate and distrusted." The subsequent develop
ment of competition as an active force resulted in the laissez-faire policy of
economics particularly characteristic of the first half of our national exist
ence8 and regulatory statutes ceased because there was no need for them.
Logically, therefore, it would seem that should competition again become
inadequate the natural consequence would be the reappearance of regulatory
statutes in order to supplement it. During the inactive interim, however, the
absence of these statutes became so universally accepted that their reappear
ance raised a question as to the power of the state to enact them, a power
which was once unquestioned. Accordingly the necessity arose of protecting
the public where it is deemed necessary without revolutionizing the social
order. The court proceeded to meet this necessity in Munn v. Illinois, supra,
with the phrase "business affected with the public interest." Businesses so
affected are subject to the control of the state to the extent that the returns
derived from their pursuit can be limited. Businesses not so affected may be
regulated in other ways where their conduct affects health or safety for in
stance, but their profits may not be directly curtailed.
The contribution of the Middle Ages then is this : That where com
petition is inadequate to protect the consumer against extortion in securing
the necessities of life, there is precedent for governmental intervention and
the "peculiar relation" may be said to exist. It remains to be determined
whether the modern instances in which regulation has been upheld have
actually given effect to this old principle without acknowledgement..
Although the doctrine of "business affected with the public interest" was
launched in Munn v. Illinois and was the real basis for the decision, there
3 Hen. VII, Cap. 13; *S Hen. VIII, Cap. 15; 35 Hen. VIII, Cap. 8; Mass. Rev.
Laws 1648; Freund on Pol1ce Power, p. 382.
* Roghes, S1x Centur1es of Work and Wages, p. 139.
8 28 Harv. L. Rev. 84.
MICHIGAN LAW REVIEW
76
was much in the opinion in that case that gave aid and comfort to the oppo
nents of any and all government regulation. The element of monopoly was
stressed and a certain vague analogy to the common carrier suggested so that
it seemed possible to confine the "anomaly" within comparatively narrow
limits. In Budd v. Netu York,' another grain elevator case, the doctrine was
affirmed without extension. In Brass v. North Dakota'8 which followed,
however, the reactionaries who sought to check the development of the doc
trine should have been slightly disillusioned. This case has been frequently
cited as modifying Munn v. Illinois to the extent of holding the monopolist1c
feature unnecessary. The following language, quoted from the opinion, dis
closes that this conclusion is slightly inaccurate although the result is per
haps the same. "When it is once admitted, as it is admitted here, that it is
competent for the legislative power to control the business of elevating and
storing grain, whether carried on by individuals, or associations, in cities of
one size and in some circumstances, it follows that such power may be legally
asserted over the same business when carried on in smaller cities and in other
circumstances. It may be conceded that that would not be wis* legislation
which provided regulations in every case and overlooked differences in the
facts that call for regulation, but as we have no right to revise the wisdom
or expediency of the law in question, so we would not be justified in imput
ing an improper exercise of discretion to the legislature of North Dakota."
The case may be cited, however, as the beginning of the end for all attempts
to limit the doctrine by artificial distinctions.
Munn v. Illinois contains the first of a series of dissenting opinions which
has been continued in all of its successors, each striving to repudiate or at
least to limit the doctrine advanced, by means of distinctions which the ma
jority of the court have consistently disregarded. It has been maintained
that it is necessary that the property be devoted to a public use, that there
be some public grant or franchise or some analogy to the innkeeper or carrier
or some right upon the part of the public to demand service. In the opinion
rendered in the case of German Alliance Insurance Co. v. Lewis in which the
business of fire insurance was held to be affected with the public interest the
repudiation of the artificial distinctions which was begun in the Brass case
was conclusively effected. The court admits that cases can be cited which
support the attempted distinctions but says further: "The distinction is
artificial. It is indeed but the assertion that the cited examples embrace all
cases of public interest. The complainants explicitly so contend, urging that
the test that applies excludes the idea that there can be a public interest which
gives the power of regulation as distinct from a public use which necessarily,
it is contended, can only apply to property and not to personal contracts. The
distinction, we think, has no basis in principle, (Noble State Bank v. Haskell,
219 U. S. 1o4) ; nor has the other contention that the service which cannot
be demanded cannot be regulated."
The artificial distinction having been finally cast aside in the case last
143 U. S. s17.
" 153 U. S. 391.
NOTE AND COMMENT
77
cited the court proceeded to leave the phrase "business affected with the
public interest" unrestricted except for the various examples which were
given, but made no progress toward a definition of any sort. So far as
previous indications are to be relied upon, therefore, from the point of view
of the Supreme Court, the principal case will merely add another to the list
of businesses so effected and the court will presumably continue on its way
with no attempt to clarify the underlying principle upon which the doctrine
rests, or to provide a reliable test in accordance with which the fate of future
exercises of the regulatory power may be determined in advance. The dis
trict court, however, in the principal case attacked the question with more
temerity and suggested what seems to be a reliable test, besides illuminating
considerably the basis upon which regulatory power rests.
The court recognizes the old artificial distinctions to a certain extent by
dividing all examples of regulation into two classes, one of which includes
all public utilities and all cases in which there is a public franchise involved
or a public service performed ; the other, a number of apparently unrelated
cases in which none of these elements appear. It is obvious that the real
difficulty in defining the phrase "business affected with the public interest" is
encountered in attempting to find a common basis upon which cases of the
latter class may be said to rest since the public nature of the first class has
long been conceded to be a sufficient basis for regulation. The court finds
the basis for the regulation of the second class in the "power of the people
to restrict the theretofore existing circle in which a person had his life and
the one within which he had his property, to bring these down narrower on
account of the conditions that were found to be oppressive to the people."
In other words, underlying all these cases there is a common characteristic,
namely, that by virtue of economic conditions or whatnot certain businesses
have been placed in an advantageous position enabling those engaged in their
pursuit to oppress the public, and the latter is not without remedy. In the
latter class the court placed married women surety laws, usury statutes
despite the historical explanation, and the coal industry under its present
circumstances. Having set up the two classes the court says that when the
same evil is found to exist in both classes, inasmuch as the regulation in both
cases is based upon the same police power, the same remedy should be
applied and that since regulation of prices has long been the known remedy
for preventing extortion in the first class it should be applied to the same
evil when it is found to exist in the second class.
The possibility of reconciling all cases of regulation upon the basis of
the relation of the industries involved to the possibility of oppression was
suggested by Freund" several years ago and seems to achieve all that the
district court achieved bv dividing the instances of regulation into two classes.
It is true that the public utilities, for instance, are affected with the public
interest because they have received public franchises. They are also affected
with the public interest in the same manner that the coal industry is so
affected in that they ordinarily occupy a position of economic advantage
Freund, Pol1ce Powes, p. 388.
78
MICHIGAN LAW REVIEW
which they can use to oppress the public. Possessing the same advantage
without the public franchises, if that were possible, the utilities would still
be affected with the public interest in the same manner as the second class
of cases set up by the court. As Fre1md" suggests upon the theory of the
necessity of businesses bearing a relation to the possibility of oppression in
order that they may be regulated it is possible on the one hand to account
for existing legislation without conceding legislative power with regard to
any and all commodities which may be selected, and on the other hand to
allow for new applications of this power. If this relation to the possibility
of oppression is an acceptable test, there remains a single awkward question
as to the court's right of review where the legislature has in effect declared
the oppression to exist.
The effectiveness of the test suggested by Freund and the District Court
of Indiana can best be determined by its application to new instances of the
exercise of the police power which have not been passed upon by the Supreme
Court. Such an instance is the recent Montana law undertaking to regulate
prices of commodities of all descriptions "from coal to diamonds, from the
babe's first swaddling clothes to the corpse's shroud." The law was passed
upon by the District Court of Montana in Holter Hardware Co. v. Boyle"
and was held to be unconstitutional upon the ground that many purely private
businesses were included within its scope, the court admitting, however, that
"businesses affected with a public interest" were a proper subject of regula
tion. The court made no attempt to draw a line between the two sorts of
businesses, but said in effect merely that the legislature had gone too far.
It is obvious that two factors are essential in order to enable those engaged
in any particular business to oppress the public. In the first place, the in
dustry must involve a necessity of life or at least a product of great im
portance to the welfare of the community, and in the second place competition
in the industry must be inadequate to protect the consumer. Otherwise regu
lation is useless and undesirable. It will be noted that these same charac
teristics were the basis of most of the regulation of the Middle Ages. It is
also clear that no declaration of the legislature can force these characteristics
upon any business in which they are wholly lacking. The attitude of the
courts toward the finding of facts by the legislature as indicated in the pass
age of a regulatory act has been said to be that of an appellate court toward
a finding by the jury. If there are any facts at all to support the decision it
will not be disturbed. In the light of the test suggested therefore, the dis
tinction between the Indiana and Montana laws is clear and the decision in
each case may be supported. It is a matter of common knowledge that both
of the characteristics necessary to afford the opportunity for oppression are
present in the coal industry today. It is a prime necessity of life and at
present there is a shortage of supply. Therefore the "peculiar relation" exists.
The business is "affected with the public interest." On the other hand, the
scope of the Montana law obviously includes a number of commodities which
" Freund, Pol1ce Power, p. 388.
" 263 Fed. 134.
NOTE AND COMMENT
79
can in no way conceivable under present economic conditions become instru

ments for oppression,weapons with which their wielders can "bludgeon the
public." As the Supreme Court has repeatedly said, however, businesses
which are today purely private may tomorrow, through a now inconceivable
change of conditions, enter the "public interest" class.
Inasmuch as the Supreme Court has steadily extended the scope of the
phrase "business affected with the public interest" without committing itself
to any definition or test it is perhaps unlikely that it will now alter this policy.
Nevertheless, the test suggested by Freund and by the district court in the
Indiana case seems logical, fits all applications of the power which have been
sanctioned by the Supreme Court and seems both enlightening and reassuring
as to the extent to which the doctrine will be carried.
A. W. B.
Appeals by the State 1n Cr1m1nal Cases.Many state constitutions
provide that no one shall be placed twice in jeopardy for the same offense.
Hence, after an acquittal by a jury the State cannot prosecute an appeal for
the purpose of securing a reversal. But an appeal ordinarily serves two very
distinct purposes. It not only questions the correctness of the judgment below
as a basis for affirming or reversing it, but it operates as a means for en
abling the higher court to lay down rules of decision to be followed in sub
sequent cases. This is the characteristic common law method for the develop
ment of the law, and unless cases can be appealed the law can never be
authoritatively expounded. To secure this exceedingly important result in
criminal cases many States have by statute provided for appeals by the State
for the sole purpose of determining questions of law.
It is quite obvious that when such an appeal is taken on a question of law
after a verdict of not guilty, the decision of the appellate court can have no
direct effect in that case. The double function normally performed by an
appeal changes to the single function of declaring the law without affecting
the question of present liability.
Now this opens an excellent opportunity for a technical attack on the
validity of the whole proceeding. Every new step in legal administration has
to run the gauntlet of that considerable number of judges who are instinctive
ly inclined to consider novelty and unconstitutionality as synonymous terms.
The statute under discussion calls for a decision in a case no longer pending
in the full and ordinary sense. The controversy between the parties, so far as
it is to be determined and fixed by the judgment, is entirely over. The
presence or absence of error is an academic question in that particular case.
Why, then, should a court bother itself further? Why not stop the whole
proceeding and refuse to take any chance of committing the judicial impro
priety of passing on a "moot" case?
In State v. Allen (Kan., 192o) 191 Pac. 476, this question is quite vig
orously argued on both sides. But the reactionary element was in the
minority, and the State of Kansas has placed itself in the list of States which
recognize that courts can serve the people in new ways and still survive. The
minority opinion is an excellent example of that extreme judicial conserva
tism so familiar to the student of legal history, though curiously enough it
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MICHIGAN LAW REVIEW
fails to cite the one conspicuous authority which squarely supports its con
clusion. That authority is United States v. Evans (19o7) 3o App. D. C. 58,
affirmed on certiorari in 213 U. S. 297 (19o9). In that case the United States
Supreme Court held that deciding an appeal for the purpose of establishing a
rule of law to be observed in subsequent cases was not an exercise of judicial
power. The decision is illustrative of the curious tendency of the United
States Supreme Court to be very conservative and technical in regard to
formal and procedural matters while showing the most enlightened liberality
in determining many questions involving substantial rights. It is in line with
the astonishing decision in Slocum v. New York Life Ins. Co. (1913) 228 U. S.
364, which held invalid a statute providing for the entry of a judgment not
withstanding a verdict where the court erroneously failed to direct a con
trary verdict on motion made at the trial, and with such cases as Insurance
Co. v. Hallock (1869) 6 Wall. 556, holding a writ without a seal absolutely
void on collateral attack.
Doubtless judicial power was not exercised in exactly this way at the
common law. But it is clear that one of the important duties of appellate
courts has always been the exposition of the law through decisions upon
points arising in the course of litigated controversies, and if the State is so
desirous of securing the exercise of this function that it is willing to enjoy
it even though it has to dispense with the normally concurrent function of
affirming or reversing the judgment, why should the courts refuse to do that
much merely because they find themselves unable to do more? These statutes
authorizing the determination of points of law are rather common and have
been accepted practically without question for many years by a substantial
number of our state courts. In Ohio such an act has been in force since
1869 (L. 1869, p. 31o) ; in Indiana since 1852 (R. S. 1852, 381) ; in Iowa at
least since 186o (R. S. 186o, Sec. 4926). In these States and in many others
the practice is well settled and commonly used. See State v. Laugklin ( 19o8)
171 Ind. 66; State v. Arnold (1895) 144 Ind. 651; State v. Willingham (19o5)
86 Miss. 2o3; State v. Gilbert (19o8) 138 Iowa 335; State v. Ward (1888) 75
Iowa 637; State v. Frisbee (1912) 8 Okla. Cr. 4o6; Commonwealth v. Bruce
(1881) 79 Ky. 56o; State v. Du Laney (19o8) 87 Ark. 17; State v. Speer
(1916) 123 Ark. 449. State v. Miller (1913) 14 Ariz. 44o, seems to be the
only instance of a State court refusing to sustain the validity of such a
statute, due, apparently, to its being somewhat overawed by the action of the
United States Supreme Court in the Evans Case.
The practice has obvious advantages. Vital questions of law may other
wise be wrongly decided with no adequate means for setting them right. As
the majority in State v. Allen (supra) observe, the practice authorized by the
statute was criticised "not on account of any practical evil consequences which
might be apprehended, but by reason of a somewhat extreme application 01
an abstract theory." That criticism of this technical kind did not appeal to
the court is an encouraging indication that, in spite of occasional relapses,
American appellate courts are generally alive to their duties and responsi
bilities in making the judicial department of the government responsive to
the demands of a developing social order.
E. R. S.
NOTE AND COMMENT
81
Wnxs.Revocat1on by Other Wr1t1ng.The right to dispose of prop

erty by will is a creation of the positive law. In re Tyner's Estate, 97 Minn.
181. It is not a natural right and hence is effective only when exercised in
strict accord with the provisions of the law. Crain v. Crain, 17 Tex. 8o. So
accustomed are we to disposal of property by will that we may not be sur
prised to find some courts even regarding this right as one of the "inherent
incidents of human existence," as a "right absolute," which legislatures can
not "unreasonably regulate to destroy," nor "courts deal with in any spirit of
mere discretion." Ball v. Boston, 153 Wis. 27. Whether or no, as recent
writers have concluded, wills as we employ them were first developed in
Rome, certain it is that the right to dispose of property by will has been of
very gradual development at the common law, and has been and is almost
wholly regulated by statute. Until Stat. 32 Henry VIII, c. 1, there could be
no real will of realty, though by means of uses equity had opened a way to
accomplish much the same result. This first great statute of wills merely
gave the power, but did not prescribe the form of the writing. It was not
until the Statute of Frauds in 166o that any special form of execution was re
quired, and then only in the case of the disposition of real property. In this
statute, too, we find for the first time fixed requirements for the revocation
of a will, viz., by some other will, or by some other writing, or by designated
acts upon the will the testator desires to revoke. As to these requirements,
and their curious extension by the courts, even contrary to the statute, see
17 M1ch. L. Rev. 331. The third great wills act in England, 1 VlCT. c. 26,
1837, made no changes in the provisions for executing or revoking wills that
need be specially noted till later. Both statutes make specific requirements;
under each no will or revocation can be effective which does not comply with
the statute. A man may always change his mind, but he cannot make that
change effective upon the legal disposition he has made of his property at
death except he follow some one or more of the ways prescribed in the
statute. As I V1ct. c. 26 dates from 1837, it is not strange that the statutes
of the states in the United States are quite as likely to follow the earlier
statute of 166o as this one of 1837.
The New York Statute as to revocation of wills follows the English
Statute of 166o as to the designated acts of change or destruction to the will,
but it follows the Statute of I V1ct. in requiring the "other writing" declar
ing such revocation to be executed with the same formalities with which a
will must be executed. The Statute of Frauds made no requirements as
to how the "other writing declaring the same" should be executed. Under
each statute the sufficiency of a writing expressing an intent to revoke a will
has often come before the court.
In the recent New York case of In re McGilts Will (Court of Appeals,
July 7, 192o), 128 N. E. 194, the court of last resort affirmed the intermediate
courts (see 177 N. Y. Suppl. 86, 181 N. Y. Suppl. 48) admitting to probate
a will which the testatrix evidently desired to revoke. Indeed she died happy
because she thought she had done so. "But to revoke or cancel a written
will, compliance must be had with the statute." The court found that the
following note did not comply. "Dr. O'KennedyDear Friend : Please
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destroy the will I made in favor of Thomas Hart." The note was signed by
the testatrix, and on the back were the signatures of two witnesses. They
testified that they signed at the request of testatrix, signing on the back
because there was not room on the front. The note was handed to Dr.
O'Kennedy when he was in hospital, and he was not discharged from the
hospital and did not go to his safe where the will was until after the death
of the testatrix, and then he did not destroy it.
Revocation is not purely a question of intent. There must also be an
effective act. Hoitt v. Hoitt, 63 N. H. 475. This note showed a clear intent
to revoke the will. Was it a sufficient "other paper" to comply with the
statute? The court held not. It merely showed an intent that Dr. O'Kennedy
should destroy the will, and no doubt such a destruction following such an
intent of the testatrix would have been a revocation within the statute. There
are few American cases that may be regarded as on all fours with the prin
cipal case. Tynan v. Paschal, 27 Tex. 296, is clear to the point that a letter
by the decedent to his attorney directing him to destroy the will does not
ipso facto work a revocation of it. It does not show an intent by this letter
to effect an immediate revocation of the will, but instead an intent that it be
revoked by destruction by the attorney under direction of the testator. This
doctrine the New York case approves.
The New York Statute requires "some other writing of the testator
declaring such revocation." The English Statute of Frauds reads "other
writing declaring the same," and Statute 1 V1ct. "some writing declaring
an intention to revoke the same." It is not probable there was any legisla
tive intent that these words should announce a different rule as to the intent
that must appear in the writing. New York adheres to the letter of the
statute and distinguishes between "declaring such revocation" of the New
York Statute, and "declaring the same," and "declaring an intention to revoke
the same" of the English statutes. Under the English Statute of Frauds
it was held that a letter directing the destruction of the will amounted to "a
present intention absolutely to revoke," "an absolute direction to revoke re
duced into writing in the deceased's lifetime." "She died in the intention to
revoke the will, and in the belief that it was revoked." Walcott v. Ochterlony,
1 Curt. 58o (1837). The English courts agree with the New York court that
the words of the statute are imperative. In the Goods of Turner, L. R. 2
P. and D. 4o3, per Lord Penzance, with which compare In re Evans' Will,
98 N. Y. S. 1o42. The statute specifies the acts which may work a revoca
tion. There is no other way. If the statute requires a revocation an intent
to revoke and a belief that the will is inoperative will not suffice. Runkle v.
Gates, 11 Ind. 95. The courts cannot substitute for the plain requirement of
the statute the desire or intention of the testator, even though he may suppose
his desire accomplished, Tice v. Shipton, 113 Ky. 1o2, a case in which the
testator supposed his will destroyed, but by fraud of a beneficiary the de
struction was prevented. This is true even in cases where the beneficiary tells
the testator the destruction is complete and he believes it. In re Silva's Estate,
169 Cal. 116. But in Bailey v. Bailey, 5 Cush. 245, Shaw, C. J., held that an
other paper expressing a wish that the will be destroyed, and executed as
NOTE AND COMMENT
83
wills are required to be executed, though it made no devise or bequest, was

nevertheless testamentary in character, might be admitted to probate, and
did work a revocation of the will. The only difference between this case
and In re McGill's Will, if difference there be, is found in the addition in the
Massachusetts case of the words, "it is my wish that my estate be settled
according to law." The language of Margaret McGill's note at least sug
gests the possibility that she intended a revocation only so far as her will was
"made in favor of Thomas Hart." There were other provisions in her will,
and why is the note then not testamentary? Compare In the Goods of
Durance, L. R. 2, P. and D. 4o6; In the Goods of Hay, L. R. 1 P. and D. 53,
and In the Goods of Hicks, 1 ib. 683. On the whole subject see the annota
tion in 3 A. L. R. 836, to the case of Dowling v. Gilliland, 286 Ill. 53o. No
doubt the courts do well to insist rigidly upon written wills and revocations.
Farol evidence in the case of wills is dangerous, for the opportunity and
temptation to perjury and fraud are great. As said by Ld. Ch. Talbot in
Brown v. Selwin, Cas. temp. Talbot 24o, and by many another judge in deal
ing with wills, "It is better to suffer a particular mischief than a general in
convenience." But one may well question whether the narrow interpretation
of instruments executed with all the formalities required by the statute does
not needlessly inflict a particular mischief where there could be no general
inconvenience and make a statute intended to prevent fraud into an instru
ment of fraud. It would be no great strain to construe the note of Margaret
McGill, executed as the law requires for a will, as indicating an intention to
revoke the will at once without waiting for the destruction of the will by Dr.
O'Kennedy. How can parol evidence that she so intended it, and was happy
in the thought that she had accomplished her purpose, in any way defeat
he purpose of the statutory requirement as to revocation of wills?
E. C. G.
Nebulous Injunct1ons.Injunctive relief is sought against alleged
wrongdoing which is merely incidental to the conduct of a legitimate busi
ness. The wrong is established and the court is satisfied that an injunction
should issue. Yet some nice questions remain as to the scope and terms of
the decree.
The restraint should not go farther than is necessary to protect the com
plainant's rights. The business should not be needlessly destroyed or embarassed. If the defendant has asserted that it is impossible to conduct the
business without the incidents complained of, (as he is likely to do in
nuisance cases, with a view to securing a holding that there is no nuisance
or that, though there be a legal nuisance, the balance of convenience forbids
an injunction) strict logic might require that this be taken as a conclusive
admission when it comes to settling the terms of the decree. In view, how
ever, of the fact that "impossibility" is, in these cases, relative, and in view
of the public interest involved, it is good sense, if not good logic, to give
the defendant an opportunity to do what he has asserted is impossible, if
there appears to be the slightest chance of success, and such seems to be the
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MICHIGAN LAW REVIEW
practice. Chamberlain v. Douglas, 24 N. Y. App. Div. 582; Anderson v.

American Smelting Co., 265 Fed. 928.
At the same time, it will not do merely to enjoin the defendant from
conducting his business as he has in the past, for he could fulfill this decree
by varying some detail which would not at all remove the objectionable fea
tures. The court must, if possible, reach all wrongful practices of the sort
complained of, must throw the defendant back within the lines of his legal
privileges.
In cases where the circumstances are such that the rights of the parties
can be defined in exact terms, this principle is easy to apply. Thus where
defendant, who had no right to flow plaintiff's land, erected a dam which
flowed the land to a depth of 15 inches, the decree ordered defendant to
lower the dam fifteen inches. Rothery v. N. Y. Rubber Co., go N. Y. 3o.
But in cases of nuisance and of unfair competition, it constantly happens
that, although the court is convinced that defendant has gone beyond his
privileges and has invaded the complainant's rights, it is impossible to define
these rights and privileges in terms that are at all definite. In this situation,
it has been a common practice to pass the difficulty to the defendant by a
decree which is little more than an order to cease committing nuisances, or
to cease unfair competition. In Winchell v. Waukeshaw, 11o Wis. 1o1, the
decree restrained discharge of sewage into a river "unless same shall have
first been so deodorized and purified as not to contain foul, offensive or
noxious matter capable of injuring plaintiff or her property or causing a
nuisance thereto." In Northwood v. Barber Asphalt Co., 126 Mich. 284,
the defendant was punished for violation of a decree enjoining the emission
of fumes "in such quantities as to materially injure the health of plaintiffs or
in any way interfere with the comfortable enjoyment of their homes." In
Collins v. Wayne Iron Works, 227 Pa. 326, the decree of the lower court re
strained the operation of power hammers, etc., "so as to render the premises
of the plaintiff unfit for use and enjoyment as a residence by a reasonable
and normal person." The fault in these decrees is obvious. As was said in
the last case, in modifying the decree, "The entry of an injunction is in some
respects analogous to the publication of a penal statute; it is notice that
certain things must be done or not done, under a penalty to be fixed by the
court. Such a decree should be as definite, clear and precise in its terms as
possible, so that there may be no reason or excuse for misunderstanding or
disobeying it ; and when practicable it should plainly indicate to the defendant
all of the acts which he is restrained from doing, without calling upon him
for inferences or conclusions about which persons may well differ." See
also, Ballantine v. Webb, 84 Mich. 38.
In Laurie v. Laurie, 9 Paige 234, the Chancellor denied a motion for
attachment for violation of a somewhat similar injunction, saying, "As de
fendant is bound to obey the process of the court at his peril, the language of
the injunction should be so clear and explicit that an unlearned man can
understand its meaning without the necessity of employing counsel to advise
him." This is perhaps an unattainable standard, but a wholesome one to
aim at. Of course it is not likely that any court would impose any serious
NOTE AND COMMENT

punishment upon a party who attempted in good faith to observe a decree,
although it found that he had done so. Good faith is well recognized as a
circumstance mitigating contempt. 22 Cyc. 1o26. See Northwest v. Barber
Asphalt Co,, supra. But no one would contend that this cures the ill. To
enter an obscure decree and invite the defendant to throw himself upon the
clemency of the court, is neither fair to the defendant nor to the complainant,
nor is it a dignified way to administer justice. We do, however, in the unfair
trade cases, find some courts taking the extraordinary position that uncer
tainty in the decree is of positive merit. In Charles E. Hires Co. v. Con
sumers Co., 1oo Fed. 8o9, 813, the Circuit Court of Appeals, Seventh Circuit,
said, "(The court) is not called upon to decide whether a new label proposed
for adoption would infringe."
"This is especially so here, where the infringement was deliberate and
designed. In such case the court ought not to say how near the infringer
may lawfully approximate the label of the complainant, but should place the
burden upon the guilty party of deciding for himself how near he may with
safety drive to the edge of the precipice, and whether it be not better for him
to keep as far from it as possible." A decree was ordered enjoining defend
ant from using labels or bottles "calculated to deceive purchasers," etc. It
has been sought to support this view with the familiar maxim that equity
will not aid a wrongdoer (Oneida Community v. Oneida Trap Co., 168 N. Y.
App. Div. 769), but this is inappropriate as applied to a defendant who is not
seeking affirmative relief but merely asking that the decree against him be
made certain. If this position has any justification, it lies in the circumstance
that in cases of this type the defendant has no "equity" to hew close to the
line, and if he does not insist upon hewing close will have no difficulty in
avoiding a contempt. Even in this type of cases, the practice is not uniform.
Coca Cola v. Gay Ola Co., 211 Fed. 942. And see N1ms, Unfa1r Compet1t1on,
367, ff- It would seem that, although the defendant may have no equity to
ask the court to aid to "drive to the edge of the precipice," it is sound and
convenient practice to give the defendant an opportunity to submit a pro
posed remedy which, if it is approved by complainant or is clearly within the
defendant's rights, should be approved (that is to say, excepted from the gen
eral terms of the decree). When we turn from this type of case to cases of
nuisance, incident to the prosecution of a legitimate business and difficult to
eliminate without heavy expense and even jeopardy to the business, probably
no one would question that the defendant has an "equity" to hew to the line,
and is well entitled if not to a decree clearly marking out that line, at least
to one which will not drive him "as far from it as possible."
How can the court best meet these demands? That depends very much
upon the circumstances of each case, and no general rule seems possible. It
may, however, be worth while to note some of the expedients which have
been used. In the unfair trade cases, the courts have frequently given the
defendant an opportunity to submit for its approval a scheme of reform, a
new label, a new package, a new name, a new method. N1ms, Unfa1r Com
pet1t1on, S 367. If the defendant "drives to the edge of the precipice," the
-court may well say that it is not prepared, at that stage of the case, to decide
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MICHIGAN LAW REVIEW
the point, and that the defendant, if he wishes the stamp of approval, must
withdraw to clearer ground. Cases where the defendant has an equity to
hew to the line are not so easy to deal with. In some cases the best expedient
will be what we might call an experimental decree. In Collins v. Wayne Iron
Works, supra, the court modified the decree so that it enjoined operations be
tween certain hours of the night, or at any other time save behind closed
doors and windows, saying "At least such a measure of relief should be tried
first." In Babcock v. New Jersey Stockyard Co., 2o N. J. Eq. 296, there is a
very interesting decree with three branches, one of which was a prohibition
of the keeping of live hogs on the premises for more than three hours, re
serving to the plaintiff the right to apply for a modification of the time,
"which is adopted merely on conjecture." In other cases, although a nuisance
is proved, it may be best to postpone relief till further information is gained
in regard to means of improvement. This was done in another branch
of the decree last mentioned, the point being referred to a commissioner,
with leave to either party to move for act1on upon his report. In other
cases it may be best to postpone relief while the defendant experiments
with remedial measures. This was done in Shelfer v. London Electric Co.,
[1895] 2 Ch. 388, and in Anderson v. American Smelting Co., supra. Of
course, if the balance of convenience runs the other way, it might be more
equitable to render immediately a decree which would be certain to give
relief, with leave to the defendant to apply for a modification upon a showing
that there is another adequate and less onerous remedy. This was done in
Chamberlain v. Douglas, supra, and in Galbraith v. Oliver, 3 Pittsburgh 78.
These and probably other expedients are available. Equity boasts of the
flexibility of its remedies. And if this phase of injunctive relief is given
proper attention it would seem that we,might wholly eliminate those decrees
which give the defendant "no rule of conduct which the law had not before
prescribed" (Ballantine v. Webb, supra), yet rumble the thunder of attach
ment.
E. N. D.
Declaratory Judgments.That statutes designed to further the cause of
social justice should have to stand the test of constitutionality is inevitable
under our system. It is, however, unfortunate that judges generally speaking
are strongly disposed to "view with alarm" any such statutes that depart in
any marked degree from the beaten path. Unquestionably there is something
about legal training and experience in law, particularly upon the bench, that
tends to extreme conservatism. That our judges should be reasonably con
servative in order that our fundamental liberties may be preserved and the
law kept steady, though progressive, through passing waves of popular desire
and prejudice no sensible man can deny. But there is a big difference be
tween such healthy conservatism and distrust of new things simply because
they are new. "I have known judges," said Chief Justice Erie, "bred in the
world of legal studies, who delighted in nothing so much as in a strong
decision. Now a strong decision is a decision opposed to common-sense and
to common convenience." Sen1or, Conversat1ons w1th D1st1ngu1shed
Persons [Ed. of 188oI 314. Such a decision was that of the New York court
NOTE AND COMMENT
in Ives v. So. Buffalo Ry. Co., 2oo N. Y. 271. It took, however, such a case
to arouse the people and the bar and the judges, and since that decision legis
lation similar to that then declared unconstitutional has been almost uniformly
upheld. Thus the law does ultimately grow.
The Declaratory Judgments Act of Michigan (Act No. 15o, P. A. 1919)
provided as follows: (Sec. 1) "No action or proceeding in any court of
record shall be open to objection on the ground that a merely declaratory
judgment, decree or order is sought thereby, and the court may make bind
ing declarations of rights whether any consequential relief is or could be
claimed, or not, including the determination, at the instance of anyone claim
ing to be interested under a deed, will or other written instrument, of any
question of construction arising under the instrument and a declaration of the
rights of the parties interested." (Sec. 3) "When further relief based upon
a declaration of rights shall become necessary or proper after such declara
tion has been made, application may be made by petition to any court having
jurisdiction to grant such relief, for an order directed to any party or parties
whose rights have been determined by such declaration, to show cause why
such further relief should not be granted forthwith, upon such reasonable
notice as shall be prescribed by the court in the said order." In the case of
Anway v. Grand Rapids Railway Co., decided Sept. 3o, 192o, the Supreme
Court of Michigan (Sharp and Clark, JJ., dissenting) held this act uncon
stitutional on the ground that it called upon the courts to exercise powers and
perform duties not judicial.
The act under consideration was virtually a combination of Order No.
25, Rule 5, of the English Court Rules adopted in 1883, and Order No. 54a,
Rule 1, of such rules adopted in 1893, under which the English courts have
entered many declaratory judgments. Mr. Justice Fellows, speaking for the
majority of the court in the instant case curiously brushes aside all con
sideration of the English cases and practice as having no bearing because
"* * * as England has no written Constitution and the English courts but
follow the mandates of Parliament the decisions of the English Courts are of
no avail upon the question now under consideration." The fact is that the
English practice is based not upon a mandate of Parliament but upon court
rule. See Joyce, J., in Northwestern Marine Eng. Co. v. Leeds Forge Co.,
[19o6] 1 Ch. 324, 328. In other words the English courts themselves concluded
to undertake this "service to the people," as they have frequently expressed it.
We are then driven to the conclusion either that the English courts do not
know what is properly included under judicial power or they boldly cut loose
from the beaten path of judicial action. It is of course incredible that
English judges do not appreciate the nature and scope of judicial power, in
truth the notion of judicial power and its field were familiar to English
lawyers and courts long before this country had an independent political
existence. When the framers of the Constitution made provision for "the
judicial power" they did not coin a new term or express a novel idea. See 1
Black, Comm. p. 269. The court points out that there are similar statutes in
Wisconsin (Chap. 242. Laws of 1919) and in Florida (No. 75, Laws of
Florida, 1919). No reference is made to the recent New York act (see
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W1ckersham, 29 Yale L. Jour. 9o8), and the New Jersey Act of 1915 (New
Jersey Laws, 1915, p. 184), applied in a striking manner in Mayor v. East
Jersey Water Co., 1o9 Atl. 121 (1919), is referred to only in connection with
construction of wills, a matter regarding which that statute does not deal, and
is dismissed with the observation that "this court has for many years con
strued wills in equity cases * * * without question." Without giving it as
a reason for its decision the court throughout its opinion lays great emphasis
upon the danger and impropriety of making the courts the "authorized legal
advisers of the people." Mr. Justice Fellows says : "Before this court, with
its membership of eight, takes up the work of advising three million people
and before the legislature is called upon to increase the membership of this
court so as to efficiently conduct this work, it is well that this court pause
long enough to consider and consider fully, whether the act calls upon us to
perform any duties prescribed by the Constitution or to exercise any power
therein conferred." It is not uninteresting to observe that the English courts
have not been overwhelmed with the task of advising in the way of declaratory
judgments upwards of forty million people, and the Michigan Act had the
same scope as the English Rules. On the contrary, in Dyson v. Attorney
General [191o] I K. B. 41o, where the defendant vigorously asserted the im
propriety of making declarations of rights in cases of the type there under
consideration on the score that there would be "innumerable other actions for
declarations" the court refused to recognize such objections as valid, Farwell,
L. J., saying, "* * * but if inconvenience is a legitimate consideration at all,
the convenience in the public interest is all in favor of providing a speedy and
easy access to the Courts for any of His Majesty's subjects," etc.
The court refers to and quotes from many cases to show that it is estab
lished by overwhelming authority that courts are not exercising judicial
functions in rendering advisory opinions to the executive or legislative branch,
and also that for the same reason cases involving merely "moot" or hypo
thetical questions will be dismissed. The soundness of these positions may
very well be conceded. The inquiry remains, does the Act under examina
tion provide for proceedings leading to a judgment which is merely advisory?
and does it call upon the court to express opinions upon purely hypothetical
situations ?
Bottom is struck cnly when one comes to the inquiry as to what is judicial
power. There are many cases which have discussed the subject and many
definitions have been essayed by courts and writers. Some of these defini
tions standing alone clearly would exclude cases looking to mere declarations
of rights, sometimes other definitions found even in the same opinion would
as clearly include such proceedings. Muskrat v. United States, 219 U. S. 346,
upon which the court in the principal case relied very strongly, is a splendid
example of this. Out of the mass of cases can there be found some dividing
line, some test by which a new situation may be determined ? It does not help
any to say that if the conclusion is final judicial power has been exercised,
for that begs the whole question.
Surely it must be clear that the essence of judicial power is the power
to make decisions. But that does not take us far enough. What kinds of
NOTE AND COMMENT
*9
decisions? or decisions in what situations? Since law operates only in re

spect of actual facts, it would seem fair to say that judicial decisions must be
in respect to controversies in actual as distinguished from hypothetical situa
tions. Obviously these controversies must be with reference to rights, duties,
or status in the legal sense, in other words, they must be justiciable. The
advisory opinion cases, then, clearly fall on the side of non-judicial functions
for they do not decide anything as to anybody's rights or duties in respect
of actual facts. They are not decisions but opinions. "Courts do not speak
through their opinions but through their judgments and decrees." Heck v.
Bailey, 2o4 Mich. 54. The Muskrat case would seem clearly to fall into this
class, for the case is essentially the same whether Congress asks the court
to advise it as to whether an act is constitutional or not or Congress purports
to authorize Mr. Muskrat to ask the court to rule on such question. The
"moot" cases are equally clear. They are "moot" because there cannot be a
decision in a controversy based on actual facts. Hence no judicial power can
be exercised. The English Courts recognize this, and in Glasgow Navigation
Co. v. Iron Ore Co. [191o] A. C. 243, the construction of a charter party was
refused because as said by Lord Chancellor Loreburn, "It was not the func
tion of a Court of Law to advise parties as to what would be their rights
under a hypothetical state of facts." The case of Lloyd v. Wayne Circuit
Judge, 56 Mich. 236, which Mr. Justice Fellows says cannot be distinguished
from the one before the court, falls within this class, for the proceeding there
provided for by the statute was the establishment of wills of living persons.
It is of the essence of a will that it speaks from death, during the testator's
lifetime it is nothing more than a paper with characters thereon as a deed or
negotiable instrument before delivery. A request of a court to construe a
contract if it should be made or to declare what would be the parties' rights
thereunder would present a situation such as was passed on in the Lloyd case.
It is interesting and important to refer now to varying types of cases in
which courts have proceeded to exercise their functions. The most common
cases of course are those in which someone's rights have been invaded (what
ever it is that amounts'to that) and a wrong (in the sense in which the word
is used in courts) has been committed. To this must be added the not un
usual though less frequent cases wherein there has been a threatened invasion
of someone's rights. The court in the principal case apparently would say
that only in these types of cases is judicial power exercised.
It remains to be shown that courts do in a variety of situations proceed
to judgment or decree where there has been no invasion or threatened in
vasion of rights, where they have proceeded and do proceed to final order
without anything more in essence being accomplished than a declaration of
the rights of the parties.
(a) There are multitudes of cases in which courts have entertained
suits to quiet title or to remove clouds. Defects in chains of title give rise to
such actions very frequently, and decrees are entered despite the fact that no
one is really disputing the ownership of the complainant. They are thus in
essence in a great many cases nothing but declarations of rightsownership.
It is not necessary to start a court in the exercise of its judicial power that
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there be a controversy in the popular sense. Very many cases that proceed
to final judgment with conceded propriety are amicable. The ordinary part1
tion case is more often consented to than contested.
(b) Courts are every day entertaining bills for construction of wills, of
trust instruments, and for direction of trustees. What are these but declara
tions? That the proceedings mentioned above are in equity is not any ex
planation, for courts of equity but exercise a part of the judicial power. The
statement by Mr. Justice Fellows passing off the admitted exercise by chancery
courts of the exercise of jurisdiction to construe wills that "such jurisdiction
has been exercised without question" hardly appeals to one's intelligence as
a differentiation.
(c) Closely allied to the suits to quiet title are the proceedings under
the Torrens Acts to register title. There hardly can be found clearer in
stances of mere declarations of rights than in a large percentage of such
cases. See Robinson v. Kerrigan, 151 Cal. 4o. Destroyed Record Acts such
as was upheld in Title and Document Restoration Co. v. Kerrigan, 15o Cal.
289, are instances of a rather special application of the principle of the Tor
rens Acts.
(d) The not uncommon statutes which provide for the determination of
heirs without an order of distribution are another instance of a provision
looking forward to a mere declaration of rights. While there is some dif
ference in the language of the statutes as to whether such declarations are
final (See 18 C. J. 876), no question has ever been raised as to the constitu
tionality of the statutes providing for such proceedings or as to the proceed
ings involving an exercise of judicial power. There is a Michigan statute
(Comp. L., 13937-41) of this sort under which Michigan courts for years
have proceeded.
(e) That a state may constitutionally provide by statute for court pro
ceedings to determine the validity of bonds proposed to be issued by irriga
tion districts was decided in Crall v. Poso Irrigation District, 87 Cal. 149,
and in Nampa, etc., Irrigation District v. Brose, 11 Idaho 474. See further
K1nney on Irr1gat1on and Water R1ghts, 142o. In Tregea v. Modesto
Irr. Dist., 164 U. S. 179, there is a dictum expressing doubt as to whether
such proceedings involve an exercise of judicial power, but nothing was
decided on that point, and in People v. Linda Vista Irr. Dist., 128 Cal. 477,
the court adhered to its earlier holding in the face of such dictum. The
principal case is the first one to rely in the least upon that dictum.
(f) The Wisconsin statute ( 2352) providing for an action to affirm
a marriage and that "the judgment in such action shall declare such marriage
valid or annul the same, and be conclusive upon all the persons concerned"
is another example of a provision for a declaratory judgment. See Kitzman
v. Kitsman, 167 Wis. 3o8.
(g) There are plenty of cases in the books where a stockholder has
sued his corporation to enjoin its payment of a tax the claim being that the
tax was invalid. See Flint v. Stone Tracy Co., 22o U. S. 1o7 ; Corbus v. Gold
Mining Co., 187 U. S. 459; Brushaber v. Union Pac. R. R. Co., 24o U. S. 1o.
In such cases it is common for the party vitally interested, the Government,
JVOT AND COMMENT

to appear only informally as amicus curiae for the purpose of insuring a
correct determination of its rights. This type of proceeding is probably ex
plained by Sec. 3224, Rev. Stats, forbidding a direct action to restrain the
collection of a tax.
In these cases the interests of the stockholder and the corporation are
identical, there is no controversy, and the suit is merely a convenient form to
secure a judicial ruling that the Government may or may not collect the tax.
Under a more enlightened procedure the desired end would be accomplished
by an action asking for a declaration of the rights and duties of the corpora
tion as to such tax. So long as the suit is clothed in a familiar garb there is
no objection, but if the legislature were to provide machinery whereby a
corporation in such position might ask an authoritative ruling in a direct
uncamouflaged proceeding, there would probably be a raising of judicial
hands in horror at such Bolshevistic attempt (See opinion of Mr. Justice Fel
lows) to make the courts the "official advisers of the people."
(h) But the prettiest example of a case in which the final judgment is
purely declaratory is to be found in the appeals by the state in criminal cases.
See the discussion of this type of case supra 79. The objection to such
proceedings is, in short, that they come after all is over. In the type of case
under consideration, the principal case, the objection is that the court is asked
to rule too soon.
Other instances might be cited, but the ones above may fairly be said to
show the way.
R. W. A.
RECENT IMPORTANT DECISIONS

Adopt1on.R1ght to Inher1t from Foster Parents Not Lost by Readopt1on by Natural Father.In an adopted child's action against the
natural children of foster parents and their assigns for the partition of real
estate, where it appeared that the child had been re-adopted by the natural
father, and where it appeared that she had stood by while the natural chil
dren sold the property to the co-defendants, it was held that the right to
inherit from the foster parents was not lost by the readoption by the natural
father and that she was not estopped to assert her rights. Holmes v. Curl,
et al, (Iowa, 192o) 178 N. W. 4o6.
At common law adoption was unknown. Hence the legal status of an
adopted child depends entirely on the statute. Albring v. Ward, 137 Mich.
352; Peck, Domest1c Relat1ons, Sec. 1o6. The statutes provide in most
states that the adopted child may inherit from the adopting parents. Morri
son v. Sessions, 7o Mich. 297; St1mson, Amer1can Statute Law, 6647 A.
His right to inherit from his natural kindred, however, is not thereby de
stroyed. In re Darling's Estate, 173 Cal. 221 ; 15 M1ch. L. Rev. 161. The Iowa
Code (1897), Chapter 7, title 16, contains the provision that the relations be
tween the adopted child and foster parents "shall be the same that exist by
law between parent and child by lawful birth." This being the case, the rights
given to the child under the statute could not be destroyed at the pleasure of
the father and the adopting parents. As soon as she was adopted she acquired
as between parent and child the same legal status as a natural child. There
fore, she lost no right to inherit from her natural father, but, acquired an
additional right of inheritance. Wagner v. Warner, 5o Iowa 582; Hilpire v.
Claude, 1o9 Iowa 159. A child by adoption who is adopted the second time
inherits from his first foster parents. Dreycr v. Shriek, 1o5 Kansas 495. Appel
lants relied on the case of In re Klapp's Estate, 197 Mich. 615. In that case
the court held that all right of inheritance was destroyed by the subsequent
adoption of the child to another by the adopting parents. The decision was
by a divided court, however, and as far as can be learned, has not been
followed in any other jurisdiction. It has been disapproved in the case of
Dreyer v. Schrick, 1o5 Kansas 495, and the contrary was held in Patterson v.
Browning, 146 Ind. 16o, and in Villier v. Watson Admn'x., 168 Ky. 631. The
defect in the reasoning of the Michigan case is this : While a new domestic
relation was created by the second adoption, the first adoption proceeding is
in no way affected by the second. The first proceeding stands for all time
unless formally annulled on sufficient grounds. The reason is that stated
above that the child upon adoption acquires the same legal status as a natural
child of the adopting parents. It is clear that there was no estoppel in the
case, defendants as well as plaintiffs had constructive notice of the articles
of adoption, and it has been held by a long line of decisions that where the
facts are equally within the knowledge of both parties, or where they have
equal means of ascertaining the truth there can be no estoppel. Logan v.
93
Davis, 147 Iowa 441 ; Busby v. Busby, 137 Iowa 37; Crockett v. Cohen, 82 W.
Va. 284; Blodgett v. Perry, 97 Mo. 263; and Cantley v. Morgan, 41 S. E. 2o1.
Adverse Possess1onRecogn1t1on of T1tle 1n AnotherTack1ng.
Plaintiff sought to quiet title to land on theory of adverse possession, the
defendant holding the title of record. One A had been in possession in 188o
as tenant of one S. In 19o3 S deeded the land to A but description did not
include the land in question. Plaintiff derived title from A. Held, plaintiff
has failed to show title in himself and so his action cannot be maintained.
Wilhelm v. Herron (Mich., 192o), 178 N. W. 769.
It is a peculiar circumstance that the plaintiff, having so many plausible
theories on which he might succeed was unable to succeed on any one of
them. While it is true that A's possession as a tenant was the possession of
S, yet as to everyone else it was hostile and so might ripen into title. Skipwith v. Martin, 5o Ark. 141. In the principal case, this possibility was denied
and the court held that if anyone got title it was S. The plaintiff further con
tended that the adverse possession of A should be tacked to that of S and this
contention may be supported either by the Kentucky theory that tacking does
not require privity, Shannon v. Kinney, I A. K. Marsh 3, or by the doctrine
that even though privity be necessary, continuity of possession by mutual con
sent is sufficient; McNeely v. Langan, 22 Oh. St. 32. Finally, the plaintiff
being in possession, and title conceded to have been in S, as against every
one else, he might well be entitled to a decree quieting title. The court did
not apply the doctrine that possession is good against the whole world except
the true owner but maintained that as against the title of record, the plaintiff
must show title in himself.
Ba1lmentsGratu1tous Ba1lor Nee11 Only Warn of Defects of
Wh1ch He Knows.An owner of a motortruck gratuitously lent it to an
employee to attend a celebration. One riding in the truck on invitation of the
borrower was killed due to a defect in the body of the truck. In an action to
recover damages from the bailor, held, the owner was not liable for failure to
warn of defects of which he did not know even though he might well have
known them. Johnson v. H. M. Bullard Co. (Conn., 192o), m Atl. 7o.
Cases involving the duties and liabilities of the gratuitous bailor are
few. Before the law was settled in England as to the liability of such a bailor
for defects in the bailed chattel which were unknown to him, it had been
decided that concealment of known defects would make him liable. Levy v.
Langridge. 4 M. & W. 337; Winierbottom v. Wright, 1o M. & W. 1o7. When
the question arose in Blakemore v. Bristol & Exeter Ry. Co., 8 Ellis & B.
1o35, as to the bailor's liability for unknown defects, the court accepted the
principles which Pothier and Story had drawn from the Roman law, and
held the bailor not liable. Thus we have another illustration of the influence
of the Roman law upon the English law of bailments. As is pointed out in
the Blakemore case the fact that the bailor received nothing for the use of
his chattel, should render him less liable than if the bailment were for the
mutual benefit of both parties. It is settled that in a bailment for hire, the
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MICHIGAN LAW REVIEW
bailor is liable for injuries resulting from the defective condition of the thing
bailed, whether known or unknown, if with the exercise of due care the de
fect could have been discovered. Moriarty v. Porter, 49 N. Y. Supp. 1 1o7. In
Coughlin v. Gilleson, [1899] 1 Q. B. 145, a gratuitous lender of a donkey
engine was held not liable for injuries caused from defects of which he was
not aware, and in McCarthy v. Young, 6 Hurl. & N. 329, a gratuitous bailor
of a scaffold was not liable for an injury to the borrower's servant caused by
a defect unknown to the owner. The American authorities on the point seem
confined to the case of Gagnor v. Dana, 69 N. H. 264, holding the bailor not
liable for injuries caused by unknown defects in a staging. See infra, p. 1o8.
Common Carr1ersTax1cab Serv1ce.The plaintiff engaged a taxicab
awaiting employment at a street corner and upon reaching his destination was
injured in alighting. In a suit upon an accident policy stipulating double
liability if injured "while on a public conveyance provided by a common car
rier for passenger service," held, the company owning the cab was a common
carrier of passengers and the cab was a public conveyance. Anderson v.
Fidelity and Casualty Co. (N. Y., 192o), 127 N. E. 584.
A common carrier of passengers is one who undertakes for hire to carry
all persons indifferently who may apply for passage so long as there is room
and there is no legal excuse for refusing. Shoemaker v. Kingsbury, 12 Wall.
(U. S.) 369. In the principal case the holding out was evidenced by the taxicab company sending its cabs along the streets to look for "fares." If a
carrier of goods professes to serve all indiscriminately, although he does not
do so, he is a common carrier and not a private carrier. Lloyd v. Haugh, 223
Pa. St. 148. Persons may be common carriers although they have no regular
tariff of charges. Jackson Architectural Iron Works v. Hurlbut, 158 N. Y.
34. Or make no charge to the particular passenger. Norton v. Western R. R.
Corporation, 15 N. Y. 444. The service may be limited in any way so long as
it is available to all who choose to use it. Although the carrier offers to serve
all who apply, persons are not passengers until their offer to become pas
sengers is accepted expressly or impliedly by the carrier. Bricker v. Phila
delphia and Reading Railroad Co., 132 Pa. St. 1 ; Warren v. Fitchburg Rail
road Co., 8 Allen (Mass.) 227. It would seem therefore, that although the
relation of carrier and passenger is not established until acceptance of the
passenger's offer to employ, the status of the carrier as such is created by the
offer to carry indiscriminately. The proprietors of livery stables, letting out
cabs with drivers, are not common carriers per se. Stanley v. Steele, 77 Conn.
688; Payne v. Halstead, 44 Ill. App. 97. A corporation is a common carrier
or not depending upon the powers exercised rather than the powers con
ferred and where it carries passengers and goods between railroad terminals
and hotels and also does a garage business with individuals it is a common
carrier as to the terminal and hotel business but not as to the garage busi
ness. Terminal Taxicab Co. v. District of Columbia, 241 U. S. 252. The
principal consequences of the status of common carrier of passengers are (1)
the duty to carry all who apply unless legally excused, and (2) to exercise
the highest degree of care and foresight possible in the selection and manipu
95
lation of the means employed. It is submitted that the true test for the exist
ence of the former duty is the "holding out" whereas the true test for the
existence of the latter duty is the exclusive control over the selection and
manipulation of the means employed. Where the question of common car
rier or not, arises collaterally, as in the principal case and in the interpreta
tion of statutes, the "holding out" would seem the proper test. Where the
question arises to determine the duty of care, as in the passenger elevator
cases, the latter test is usually applied and the former ignored. It follows
however, that it is error to hold, as has been done in many cases, the elevator
a common carrier, but correct to hold the operator to the same duty of care
as common carriers of passengers. In Seaver v. Bradley, 179 Mass. 329, a
correct result was reached in holding that the owner of an elevator was not
a common carrier. The question was whether a public statute, giving a
remedy for the loss of life of a passenger by reason of the legligence of com
mon carriers of passengers, could be invoked. The "holding out" teSt was
correctly applied. On principle, since they have the same exclusive control,
the duty of care of carriers for hire should be the same as the duty of care
of common carriers of passengers. Whether a conveyance is engaged on the
street or at a garage should make no difference. Accord with principal case
are Van Hoeffen v. Columbia Taxicab Co., 179 Mo. App. 591 ; Primrose v.
Casualty Co.. 232 Pa. 21o.
Const1tut1onal LawStatute Regulat1ng Rents.In a case involving
the validity of a rent statute in the District of Columbia intended to prevent
rent profiteering during the period of the war, held, that since this statute
favored the landlords with unrented, or building, apartments, the act was
unconstitutional because discriminatory. Willson v. McDonnell, 265 Fed. 432.
Since the limitations on the legislative power of Congress as to the Dis
trict of Columbia are the same as those to which the state legislatures are
subject in regulating businesses in their respective commonwealths, the real
question involved is whether or not the business of renting houses is "affected
with a public interest," the basis upon which all regulation is said to rest.
Munn v. Illinois, 94 U. S. 113; German Alliance v. Lewis, 233 U. S. 389. In
the instant case a decision as to whether the business of renting of houses and
apartments was so affected was unnecessary inasmuch as the statute was dis
criminatory; but since rent statutes have been passed in several states, such a
decision as the present is a mere postponement of the necessity of deciding
the fundamental question. For a full discussion as to when businesses may
be said to be "affected with a public interest," see "Price Regulation under
the Police Power," supra, p. 74.
Corporat1onsNo-Par Value StockValuat1on for Franch1se Fee
Purposes.A corporation was organized in Delaware under an act permitting
corporations to issue stock without any nominal or par value, the statute
stipulating that for franchise fee purposes such no-par value stock shall be
taken at the par value of $1oo. After qualifying as a foreign corporation to
do business in Michigan, the corporation objected to paying its franchise fee
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MICHIGAN LAW REVIEW
on the basis set up by Delaware. Held, the no-par value stock of the cor
poration must be taken at par value of $1oo for Michigan franchise fee pur
poses. Detroit Mortgage Corporation v. Vaughan, Sec. of State (Mich.,
1geo), 178 N. W. 697.
Twelve statesAlabama, California, Delaware, Maryland, Maine, New
Hampshire, New Jersey, New York, Ohio, Pennsylvania, Virginia, Wisconsin
authorize the issuance of no-par value stock. Nine set up certain standards
of valuation of such stock for franchise fee purposes, six fixing a $1oo per
share basis, like Delaware. That a state may prescribe conditions under which
corporations may be organized, and that conditions prescribed by a state be
come a part of the corporate charter are recognized rules. The point of con
tention has been how other states shall treat such conditions. A state having
no statute authorizing the issuance of no-par value stock should not exclude
a foreign corporation because it has such stock. North American Petroleum
Co. v. Hopkins, (Kan.) 181 Pac. 625. The dissenting opinion in the latter
case emphasized the difficulty of determining fees and taxes without a definite
stock valuation, and it was to bridge this gap that Massachusetts by statute
set up a $1oo per share basis for taxing no-par value stock of foreign cor
porations. (1918, Chap. 235, p. 2o4.) The Michigan court in the instant
opinion leans towards adopting the valuation set upon the stock by the state
authorizing it, rather than setting a fixed valuation for all cases. An inter
esting question will arise when a state like Michigan comes to tax the no-par
value stock of a foreign corporation whose state of nativity sets no value
on such stock for franchise fee purposes. At least two statesNew York
and Ohioby statute agree with the Kansas court in North American Petro
leum Co. v. Hopkins, (supra), that in such cases the aggregate assets em
ployed by the corporation in carrying on business in the state seems the most
reasonable basis of valuation for taxing purposes. See 64 Oh1o Law Bull.
379Corporat1onsOff1cersCompensat1on of Off1cers.The plaintiff, a
mining engineer, sought to recover the reasonable value of services rendered
while vice-president of the defendant mining corporation at its request. The
work done included the drawing of maps, plans, surveys, and drafting a
mining lease. Plaintiff failed to show an express contract on the part of the
defendant to pay. The trial court dismissed the complaint. Held, (Andrews,
Collins and McLaughlin, JJ., dissenting), an express contract not necessary,
and under the evidence there was a proper question for the jury whether the
services were accepted under circumstances as to raise an implied promise
to pay. Fox v. Arctic Co., (N. Y., 192o) 128 N. E. 154.
The rule of law held applicable in both the majority and minority
opinions is that for services rendered by an officer of a corporation outside
of his regular duties, an officer may recover the contract price if there is an
express contract, and their reasonable value if they were rendered under cir
cumstances so as to raise the fair presumption the parties intended and under
stood that they were to be paid for, the dissenting opinion however maintain
ing that there was no evidence that would justify a jury in finding such an
97
understanding. The principal case is in harmony with the decided weight

of authority as to the question of law involved. Notley v. First State Bank
of Vicksburg, 154 Mich. 676; Pew v. Gloucester Nafl Bank, 13o Mass. 391.
See also note in 136 Am. St. Rep. 923, and cases there cited. Alabama how
ever has extended the rule that directors have no power to vote themselves
compensation, to services outside regular duties and has held that it is illegal
for a director to make a contract for compensation for work done while a
director of the corporation, and such a contract even though express is un
enforceable. State v. Collins, 7 Ala. 95; Godbold v. Branch Bank, 11 Ala.
191. A middle course has been taken, and perhaps the most salutary rule
formulated, in Althouse v. Cobaugh Colliery Co., 227 Pa. 58o, where the right
of recovery for services rendered by an officer of a corporation is limited to
cases where there is an express contract and the doctrine of implied con
tracts is repudiated. On the whole it seems that the Pennsylvania doctrine
is more nearly calculated to do justice in the majority of cases and would
make extortionate claims by grasping officers increasingly difficult.
Cr1m1nal LawIntox1cat1on as Defense.Defendant while in the act
of raping a girl so placed his hand upon her mouth, to stop her cries, that
she was choked to death. There was some evidence that he was drunk at
the time. He was convicted of murder by the trial court, which conviction
the appellate court reduced to manslaughter on account of his intoxication.
In the House of Lords it was held, that intoxication, as distinct from insanity,
was not a defense to the charge of murder. Director of Public Prosecutions
v. Beard, [192o] App. Cas. 479.
The precise argument of the defense is obscure. It was admitted that
defendant was not too drunk to realize what he was doing in respect to the
rape. A contention that he was too drunk to have formed a specific intent
to kill the deceased is precluded by the fact that murder does not require a
specific intent to kill. "Homicide per infortunium is felonious, if the killing
occurred in the prosecution of an unlawful act. It is murder, if the unlawful
act was a felony, although there may have been no intention to injure the
deceased." Bob (a slave) v. State, 29 Ala. 2o; Smith v. State, 154 Ala. 31;
Hamilton v. State, 129 Ga. 747 ; People v. Stein, 23 Cal. App. 1o8 ; Pew's Case,
Cro. Car. 183 (163o). It is not even essential that death be the probable
result of the act done; it is sufficient if it be the "natural" result, in the sense
that it follow naturally and without the intervention of human volition. State
v. Levelle, 34 S. C. 12o; Reg. v. Horsey, 3 Fost. & F. 287, in which defendant
was held for murder as a result of arson, although he had no knowledge,
nor reason to know, that any one was in the barn which he fired. Actual
realization by the defendant that the unintentional result might follow from
the act intended seems never to have been required. The contention in the
principal case appears to have been that the defendant had exempted himself
from punishment for murder by deliberately incapacitating himself from con
ceiving the possible natural consequences of his felonious act. The decisions
absolutely deny this position. "If by a voluntary act he (the defendant)
temporarily casts off the restraints of reason and conscience, no wrong is
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MICHIGAN LAW REVIEW
done him if he is considered answerable for any injury which in that state
he may do to others or to society." People v. Rogers, 18 N. Y. 9, citing much
English and American authority; Kenny v. People, 31 N. Y. 33o; Miller v.
State, 9 Okla. Cr. 55; Com. v. Nasarco, 224 Pa. 2o4; State v. Kidwell, 62 W.
Va. 466, 13 L. R. A. (N. S.) 1o24; State v. Rumble, 81 Kan. 16, 25 L. R. A. (N.
S.) 376; People v. Stein, supra. The appellate court, in the principal case, relied
on Rex v. Meade, [19o9] 1 K. B. 895, in which it was held that defendant who
killed his wife by striking her with a broomstick and with his fist in the
abdomen was guilty only of manslaughter, if he were so drunk that his reason
were dethroned, and he were "incapable of knowing that what he was doing
was dangerous." The House of Lords, in the principal case, held that this
broad proposition in Meade's Case "is not, and can not be supported by au
thority." Unfortunately the court did not see fit specifically to overrule
Meade's Case in its particular application as well, so that it still stands in
conflict with the current of authority on that point.
,
"
/"
Cr1m1nal LawSu1c1deA1d1ng and Abett1ng.The wife of the ac

cused, a "bed patient," and, in the opinion of her physician, incurable, wished
to die and end her misery. At her request accused mixed Paris Green and
water in a cup and placed it where she could reach it. She drank, and died
thereof. There was no indication that accused advised or encouraged such a
course, nor aided, except as aforesaid. Upon confession in court, held, guilty
of murder in the first degree under Comp. Laws, 1915, 15192. State v.
Roberts, (Mich., 192o) 178 N. W. 69o.
' '
v
The statute referred to reads, "All murder which shall be perpetrated by
means of poison, or lying in wait, or any other kind of wilful, deliberate and
premeditated killing, or shall be committed in the perpetration, or attempt to
perpetrate, any arson, rape, robbery or burglary, shall be deemed murder of
the first degree, and shall be punished by solitary confinement at hard labor,
in the state prison for life." The law in our states is unsettled as to the legal
status of the act of suicide and the criminal liability of one who assists or
encourages the self destruction. In Massachusetts it is doubted if suicide
itself is a felony. Com. v. Mink, 123 Mass. 429, But as it is an act malum
in se, one who aids, encourages or advises it is guilty of murder, Com. v.
Bowen, 13 Mass. 356, or manslaughter. Com. v. Mink, supra. By specific
statute in New York any one who "wilfully in any manner, advises, encour
ages, abets or assists another person in taking the h1tter's life," is guilty of
manslaughter. See People v. Kent, 41 Misc. 191. In Com. v. Hicks, 118 Ky.
637, it is stated as the law that suicide is a felony in Kentucky and an acces
sory before the fact to a suicide is guilty of murder as principal in the second
degree. In Illinois suicide is not a crime. Royal Circle v. Achterrath, 2o4
Ill. 549. But one who aids, encourages, or induces another to kill himself
makes the suicide his agent, becomes responsible for his act, and is thus guilty
of murder. Burnett v. People, 2o4 Ill. 2o8. But under the common law that
responsibility could only be for solicitation, and punishable as such, Rex v.
Higgins, 2 East 5, (18o1) ; or that of an accessory, dispunishable in case of
suicide, Com. v. Phillips, 16 Mass. 422; or that of a principal in the second
s
99
degree if present, aiding and abetting. Russel on Cr1mes, [9th Ed.] 58.
In the leading case of Blackburn v. State, 23 Ohio St. 146, largely relied upon^
in the principal case, it was held that one who furnishes the poison with the 1
intent that another shall commit suicide with it, "administers" it in the statu- \
tory sense, and is guilty of murder, although suicide is not a crime in Ohio. /
The evidence was strong, however, that the woman was forced by accused \
to take the poison, which was not true in the principal case. It has been /
doubted if the doctrine of Burnett v. People, supra, could be stretched to ^
cover just such a case as the principal one. 17 Harv. L. Rev. 331. Certainly I
in the result, if not in the doctrine stated, the Michigan case is more extreme '
than any above noted. The Texas court is contra with the clear cut holding
that as suicide is not a crime, one who furnishes the means, or encourages
the act, is guilty of no crime. Grace v. State, 69 S. W. 529 ; Saunders v. State,
54 Tex. Crim. Rep. 1oi.
EasementsNon-User Not Abandonment.Predecessors in title of
plaintiff conveyed property to the predecessors of defendant railway, reserv
ing a right of way across it to grantor's land. For fifteen years the dominant
estate was used in connection with a mill, which burned down in 19oo, since
when land had been used as a depositing place for gravel, and most of the
time a different crossing had been used. Since about 19o5, the servient owners
kept the crossing blocked with cars, and in 1914 built a platform across it.
After complaints from plaintiff, the servient owners agreed to arrange the
matter, but failed to do so, continuing the obstruction until the present action
to enjoin defendant from obstructing the way, defendant claiming that there
was an abandonment of the easement. Held, the easement was not abandoned,
but due to laches of the plaintiff, he is entitled merely to damages, but not an
injunction. McMorran Milling Co. v. Pere Marquette Ry. Co. (Mich., 192o)
178 N. W. 274.
It was decided in Day v. Walden, 46 Mich. 575, that an easement estab
lished by grant cannot be extinguished by any period of non-user. But some
doubt seems to be cast on the rule in Jones v. Van Bochove, 1o3 Mich. 98,
by an intimation that a prescriptive easement may be lost by mere non-user
for the prescriptive period, and that there should be no difference between an
easement lying in grant and one gained by prescription. The latter state
ment is certainly logical. But as to extinguishment of a prescriptive ease
ment, the better doctrine seems to be that non-user for the prescriptive period
is merely evidence of an abandonment. Pratt v. Sweetser, 68 Me. 344; see
Washburn, Easements, [4th ed.] p. 72o. The principal case clears any doubts
about the rule as to easements lying in grant by announcing the correct rule
that mere non-user, for however long continued, cannot extinguish an ease
ment lying in grant. Lathrop v. Eisner, 93 Mich. 599; Arnold v. Stevens, 24
Pick. 1o6; Hughes v. Galusha Stove Co., 118 N. Y. S. 1o9; Harris v. Curtis,
124 N. Y. S. 263. But non-user of a way, even one lying in grant, for no
matter how short a time, if accompanied by intention to abandon, extinguishes
the easement. Regina v. Chorley, 12 Q. B. 515; Crain v. Fox, 16 Barb. 185.
Whether there is intent to abandon depends upon the facts of each case, and
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MICHIGAN LAW REVIEW
must be shown to be clear and unequivocal. "It is one thing not to assert an
intention to use a way, and another thing to assert an intention to abandon it."
Sir Edward Fry in James v. Stevenson, 18 A. C. 162 ; Johnson v. Stitt, 21 R.
I. 429. If the dominant owner has led others to believe the way to be aban
doned, he will be estopped to claim the easement. Trimble v. King, 131 Ky.
1. In the principal case, there could be no estoppel, since the dominant owner
constantly protested.
EasementsUse of Wall for Advert1s1ngIrrevocable Pr1v1lege.
Plaintiff contracted in writing with the defendant, for the privilege to paint
and maintain signs upon the walls of defendant's building. In an action for
an injunction restraining the defendant from interfering with this privilege,
held, the authority or right to use the walls in question was not merely per
missive, but amounted to the grant of a right in the nature of an easement and
was not a mere revocable license. Thomas Cusack Co. v. Myers (Iowa, 192o),
178 N. W. 4o1.
There was no dominant estate in this case and if an easement existed, it
must be an easement in gross. Easements in gross are generally recognized
in this country and are not revocable at will. New York v. Law, 125 N. Y.
38o. The courts have had great difficulty in distinguishing between easements
in gross and mere licenses. See 27 Yale L. Jour. 66. The right to place
advertising on walls has been held to imply a right of way upon the land
sufficient to create a burden in the nature of an easement. Willoughby v.
Lawrence, 116 Ill. 11. If the right is granted in the form of a lease, and in
volves possession of the land, it is treated as a lease. C. J. Glide Co. v. Farley,
58 N. Y. Sup. 1o36. Most of the advertising cases in the books involve sign
boards. One can have an easement for the support of a sign-board from a
wall just the same as if it were supported from the soil direct. Moody v.
Steggles, 12 Ch. D. 261. A mere naked license is founded upon personal con
fidence and is therefore not assignable. Morrill v. Mackman, 24 Mich. 282.
The courts that maintain that the facts in the principal case constitute a
license frequently hold that an executed license for a term and for a con
sideration cannot be revoked. Levy v. Louisville Gunning System, 121 Ky.
51o; 18 Am. & Eng. Ency. [2d Ed.] 1144.
Ev1denceD1scovery of DocumentsPr1v1lege.Plaintiffs, in a claim
for an estate, make application for the production of certain documents.
Defendants, who are the executors of the estate, claim professional privilege
for the documents, as they were written by one of the executors in his pro
fessional capacity of attorney, for the use of the executors, and further, that
fraud of attorney and client has not been sufficiently alleged. Held, the com
munications were privileged. O'Rourke v. Darbishire, [192o] A. C. 581.
The House of Lords passes squarely on the question of whether profes
sional privilege is not displaced by the fact that the solicitor consulted is
himself one of the trustees, and is acting as professional adviser to himself
and his co-trustees. In Re Postlethwaite, 35 Ch. D. 722, North, J., was of the
opinion that such a communication was not privileged, but the Lords, in the
1o1
principal case, after overruling this decision, justify themselves on the ground
that the basis of his decision was the proprietary right in the plaintiffs, and
not that the privilege was destroyed; but saying, nevertheless that if the
decision was based on the latter ground, it was wrong. The American cases
touching on this point are decided on the basi3 of an attorney aiding a client
in a fraud, and hence not privileged, although there are two decisions pointing
in the opposite direction from the English case. In Jeanes v. Fridenberg,
3 Pa. Law Journal, 199, the court holds that an attorney is not privileged
from communicating facts concerning his client where the attorney himself
is a party to the transaction he is called upon to disclose, and in Matter of
Robinson, 14o N. Y. App. Div. 329, 336, the court in considering 'the question
of an attorney's privilege, says, "When the corporation made him (the attor
ney) a director, and he accepted that office, such acceptance necessarily re
moved him from the relation of attorney or counsel to its officers so far as
the corporate affairs were concerned." If the courts are called upon to order
the production of an opinion written by "A" in his capacity as attorney to "A"
in his capacity as executor, we would see a further application of this rather
unique point. The question whether an attorney can be examined as a witness
against his client in case of an attempt to perpetrate a fraud has been dis
cussed in a great number of cases with varying results. Matthews v. Hoagland, 48 N. J. Eq. 455, 21 Atl. 1o54; 66 Am. St. Rep. 237, note In the
O'Rourke case the Court points out the difficulty involved in the application
of the rule that fraud will defeat the objection of privilege, for assuredly if
merely crying fraud before a privileged communication lays it bare for in
spection, the long standing rule of privilege as to communications between
attorney and client has ceased to be of any practical benefit ; while on the
other hand, if the evidence by which fraud is to be proved cannot be obtained,
the law has opened another avenue by which justice may be evaded. The
court definitely settles that the mere allegation of fraud is insufficient, but
that there must be something to give color to the charge, and that while every
case must be decided upon its own merits, Reg. v. Cox, 14 Q. B. 153, 175,
the plaintiff must show to the satisfaction of the court good grounds for say
ing that prima facie a state of things exists, which if not displaced at the
trial will support a charge of fraud to rebut the presumption of privilege.
Ev1denceMov1ng P1cturesBest Ev1dence Rule.In a woman's action
under the Civil Rights Law for damages for exhibition without written con
sent of a motion picture of Caesarean operation, testimony of witnesses who
had seen the picture as thrown on the screen in theaters, held, admissible to
show it represented the plaintiff and could be identified as her picture. Feeney
v. Young (192o), 181 N. Y. Sup. 481.
There is considerable room for doubt whether the film would constitute
best evidence, were the best evidence rule applicable in this case; because the
film was so small that it could not be made out, and also because the pres
entation upon the screen constituted the offense under the statute. The best
evidence rule applies to written instruments. Western Assur. Co. v. Polk,
1o4 Fed. 649; Orr v. Le Claire, 55 Wis. 93. But where the writing is not in
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MICHIGAN LAW REVIEW
issue, but merely collateral to it, the rule has no application, and parol evi
dence may be given, even though it covers the contents of the writing. Coonrod v. Madden, 126 Ind. 197 ; Ledford v. Emerson, 138 N. C. 5o2. It is gen
erally held that except in cases of written instruments or records, although
there may be more satisfactory means of knowledge, there is no higher grade
of testimony as a means of communicating facts to a jury, than the statement
of a witness who has himself had the best means of knowledge. Clark v.
Robinson, 5 B. Monr. 55; Commonwealth v. Morrill, 99 Mass. 54o; Common
wealth v. Welch, 142 Mass. 473. In Lucas v. Williams, [1892] 2 Q. B. 113,
it was held in an action on the infringement of a copyright of a painting by
publishing a photographic copy of it that proof of the photograph being a copy
was allowable without requiring production of the painting. The cases above
mentioned involve efforts to compel the production of a chattel and differ
from those cases where a chattel is offered in evidence. The cases where
there is an inscribed chattel, production of which is sought to be compelled,
have given rise to a great mass of conflicting opinions which cannot be
reconciled. See 2 W1gmore, Ev., 1182.
Frauds, Statute ofCable Transfer of Fore1gn Exchange W1th1n
17TH Sect1on.Plaintiff's oral agreement to deliver to defendant a cable
transfer of exchange on London, England, for 2o,ooo sterling within four
months at defendant's option to be paid for in dollars at the exercise of that
option, thereby making available by cable to the buyer a credit of the amount
specified at the point specified was held, either the sale of a "commodity"
or a "chose in action" within the Statute of Frauds and unenforceable.
Equitable Trust Co. of N. Y. v. Keene, (192o) 183 N. Y. Supp. 699.
The New York Statute of Frauds expressly includes choses in action. "A
contract to sell or a sale of any goods or choses in action", Personal Prop,
erty Law, Sec. 85, Ch. 45, Laws 19o9, Consol Law, c. 41. Section 156 of the
Personal Property Law defines "goods" as including "all chattels personal
other than things in action and money." So money is not considered as goods
under the New York statute. In order then for the contract to sell 12,ooo
pounds to come within the statute it will have to appear that said pounds are
not considered money. There is authority for this view. Foreign money
when dealt in in this country is to be regarded as a commodity. Reisfeld v.
Jacobs, 176 N. Y. Supp. 223. Even domestic money (gold) when the subject
of a contract of sale, has been regarded not as money but as a commodity,
and a contract for the sale thereof was held to be within the Statute of
Frauds. Peabody v. Speyers, 56 N. Y. 23o; Fowler v. N. Y. Gold Exchange
Bank, 67 N. Y. 138; Cooke v. Davis, 53 N. Y. 318. In view of these authori
ties the court had ample reason for holding that the contract to transfer the
title to 12,ooo English pounds was within the statute. This was on the theory
that the sale of a cable transfer of exchange was the sale of a commodity.
But the court went still further and held that it might also be considered as
the sale of a chose in action. The plaintiff's contention was that this was
really a provision of credit and that credit meant "the capacity of being
trusted." Plaintiff cited in support of this contention Dry Dock Bank v.

American Life Ins. and Trust Co., 3 N. Y. 344. That case held that the term
"chose in action" means a particular species of property, recognized by law,
and which, on the death of the owner would be inventoried as such by his
legal representatives, and does not include credit, and, though credit may be
a benefit to the possessor as a means of procuring property, it is not in itself
recognized in law as property. The defect in the plaintiff's reasoning lay in
the fact that they failed to see that the agreement in the principal case was
not credit in the true sense at all. Credit in its true sense, to be sure, means
the capacity of being trusted just as the plaintiff contended, or the ability to
borrow money. It means that one side of the contract has been fully executed
while the other side is entirely unexecuted. In the principal case that was
not the situation. The pounds were to be paid for in American dollars as
fast as the title to them was transferred. There was no element of borrow
ing. There was really no element of credit involved. What defendant wanted
and what he got was the right to call upon London for so many pounds of
exchange. This was clearly a chose in action. The title was still in the
vendor while the right to the possession was in the vendee by virtue of the
contract. Undoubtedly then the court was right in holding that on either of
the above theories the contract was within the Statute of Frauds and there
fore unenforceable.
Internal RevenueIncome TaxLoss Susta1ned 1n Outs1de Specu
lat1on not Deduct1ble"Losses Incurred 1n Trade."The taxpayer, a
member of Mente & Co., who were engaged in making jute and cotton bags,
in his income report for the years 1913 and 1914 deducted from his gross in
come, losses sustained in buying and selling cotton on the Cotton Exchange
for his private account, as "losses incurred in trade." The Income Tax Act
Oct. 3, 1913, Sec. II, Subd. 2B (38 Stat. 167) provides: "That in computing
net income for purposes of normal tax there shall be allowed as deduction :
* * * fourth, losses actually sustained during year, incurred in trade, * * *." The
Collector of internal revenue assessed a tax on these deductions which the
taxpayer paid under protest. In an action to recover the amounts so paid,
held, (Manton, J., dissenting) "in trade" was rightly construed by the Col
lector as meaning in the actual business of the taxpayer, as distinguished from
isolated transactions. Mente v. Eisner (C. C. A. 2nd Circ., 192o), 266 Fed. 161.
The majority opinion goes on to say that although it is somewhat incon
sistent to tax the profits of such transactions without allowing deductions for
loss, yet if intent had been to permit all losses to be deducted, the statute
would say so. Treasury Decision 2o9o construes correctly "in trade" to
mean "the trade or trades in which he has invested money otherwise than
for purpose of being employed in isolated transactions." Manton, J., dissent
ing, considered that what the taxpayer did here, selling cotton futures, was
engaging "in trade." Trade as defined by Bouv1ER is "any sort of dealings
by way of sale or exchange." The interpretation put upon "in trade" by the
Collector as synonymous with "in his business" is too narrow. That the
Income Tax Act of 1913 has been amended by the Act of 1918, Sec. 214, Subd.
5 (4o Stat. 1o67), providing deduction of "losses * * * if incurred in any trans
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MICHIGAN LAW REVIEW
action entered into for profit, though not connected with the trade or business
* * *," may be deducted, tends to show that the interpretation put upon the
previous law was not according to the intent of Congress.
Internat1onal LawAl1en's Capac1ty to Inher1t LandEffect of
War on Treat1es.Intestate owned land in New York. One of his two sur
viving daughters, plaintiff in this case, had married an Austro-Hungarian
subject resident in the United States. Shortly before intestate's death war
was declared between Austria-Hungary and the United States. The New
York Real Property Law, Sec. 1o, enabled "alien friends" to acquire land in
New York by descent. 7 Consol. Laws, (2nd Ed.), 7269. The Treaty of
Commerce and Navigation between Austria-Hungary and the United States,
Art. 2, provided that where citizens of either country should be incapable
under the laws of the other of acquiring land by descent they should be
allowed at least two years to sell lands which they would otherwise inherit
and to withdraw the proceeds. 9 Stat. 944; 2 Malloy, Treat1es, 34. Could
plaintiff inherit New York land? If not, had she a right to disvose of it as
provided in the Treaty? Held, that plaintiff could not inherit land under the
New York law, but that she had a right to dispose of land which she would
otherwise inherit as provided in the Treaty. The Treaty with Austria-Hun
gary, at least as regards the article in controversy, was compatible with a state
of hostilities and had not been suspended by war. Techt v. Hughes, (New
York, 192o), 128 N. E. 185.
At common law an alien, friend or enemy, could not take land by descent.
See 1 Pollock and Ma1tland, H1story of Engl1sh Law, [2nd Ed.], 459; 2
Blackstone, Commentar1es, 249; Dawson's Lessee v. Godfrey, 4 Cr. 321. By
virtue of the Citizenship Act of 19o7, Sec. 3, which provides that "any Ameri
can woman who marries a foreigner shall take the nationality of her hus
band," plaintiff had become an alien. 34 Stat. 1228; Mackenzie v. Hare, 239
U. S. 299. Upon the outbreak of war with Austria-Hungary she had become
an alien enemy. Reliance upon Sec. 1o of the Real Property Law proved
unavailing, since an alien enemy could not be regarded as an "alien friend"
upon any reasonable construction. The Court's opinion upon this point is
well considered and sound. It would have been no occasion for surprise if
plaintiff's reliance upon the Treaty had proved equally precarious. There
has been much diversity of opinion as regards the effect of war on treaties.
It has been said that war abrogates treaties, with a few exceptions, and that
their renewal, if desired, must be expressly stipulated. 3 Ph1ll1more, Int.
Law, [3rd Ed.], 794; 2 Westlake, Int. Law, [2nd Ed.], 32. On the other
hand, a majority of the modern publicists emphasize the exceptions. 2 Cobbett, Cases, [3rd Ed.], 4o; Hall Int Law, [7th Ed.], Sec. 125; 2 Oppenhe1m. Int. Law, [2nd Ed.], Sec. 99. It is difficult to extract a general rule
from the practice of nations. Publicists usually resolve the difficulty by re
sort to classification. It is found upon classification that certain treaties
become operative only in case of war, that others may continue operative in
case of war by express stipulation (see Frits Schulz, Jr., Co. v. Rat1nes & Co.,
164 N. Y. Supp. 454), that others may be suspended during war, and that

others may be abrogated. Treaties of commerce and navigation are usually
included either among those which are suspended or among those which are
abrogated. The New York court adopts a sensible pragmatic test, commended
by several of the modern writers on international law, and holds that treaty
provisions compatible with a state of hostilities, unless expressly terminated,
should be enforced by the courts and those incompatible rejected. The mere
fact that other provisions of the same treaty must be suspended or even
abrogated is not conclusive. In the words of Mr. Justice Cardozo, "Inter
national law today does not preserve treaties or annul them, regardless of
the effects produced. It deals with such problems pragmatically, preserving
or annulling as the necessities of war exact. It establishes standards, but it
does not fetter itself with rules." In Techt v. Hughes the New York Court
of Appeals has contributed an admirable decision and an illuminating
precedent.
Landlord and TenantTender op Rent by Hold1ng-Over Tenant
Acceptance by Landlord Otherw1se Than as Rent.Lessor gave notice
properly for tenant to quit premises. Tenant held on and sent rent to lessor
who retained it but insisted that he was receiving the money not as rent but
for use and occupation. In an action to recover possession of the premises,
held, even though the lessor denied recognition of the tenancy as existing,
the acceptance of the money operated as a waiver of the notice to quit.
Hartell v. Blackler, [192o] 2 K. B. 161.
So also in the case of Croft v. Lumley, 5 E. & B. 648, where the lease was
forfeited by breach of covenants, the lessor was held to waive the forfeiture
by retaining money paid as rent, though he insisted he accepted it not as rent
but for use and occupation. In that case the judges applied the maxim:
"Money paid is to be applied according to the express will of the payer, not
of the receiver." "Such acceptance operates as a matter of law to waive all
forfeitures then known to the lessor, notwithstanding any protest on his part
against such waiver," WoodPall, Landlord and Tenant. Generally any
recognition by a lessor of a tenancy as existing, after a right of entry has
accrued and lessor has notice of the forfeiture, will have the effect of a
waiver. Dermott v. WaXlach, 1 Wall. 61. So the acceptance of rent by a
lessor is waiver of forfeiture or notice to quit. The landlord affirms that
the lease is still in effect by accepting rent. McGlynn v. Moore, 25 Cal. 384;
Totalis v. Cannellos, 138 Minn. 179. And this even though the lessor expressly
remonstrates against it being a waiver of a prior cause of forfeiture. G. C.
& S. F. Ry. Co. v. Settegast, 79 Tex. 256. But payment must be made as
rent. It is not waiver if made as compensation for use and occupation. Kenny
v. Sen Si Lun, 1o1 Minn. 253; Croft v. Lumley, 5 E. & B. 648. To render
acceptance of rent waiver of forfeiture, at time of acceptance the lessor must
have knowledge of the cause of forfeiture. German-American Bank v. Gollmer, 155 Cal. 683.
Landlord and TenantWasteThe lessee of a building with office
space on the second floor planned to aller the second story for a sublessee by
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MICHIGAN LAW REVIEW
cutting windows and doors in a party wall to connect the building with the
adjoining structure. The lessor, claiming this alteration would materially
injure the building and increase insurance costs, sought an injunction. Held,
the lessee is guilty of waste, for the common law rule that a tenant is guilty
of waste if he materially changes the nature and character of the building, is
the law in Alabama. F. W. Woolworth Co. v. Nelson, (Ala., 192o) 85 So. 449.
The old common law interpretation of waste was applied with strictness.
If a tenant converted arable land into wood, or meadow into plow or pasture
land, even though he thus enhanced the reversioner's or lessor's estate, it was
waste, because it was held to endanger the evidences of title. Bewes, Law of
Waste, p. 1o; London v. Greyme, (16o7) Cro. Jac. 181. As early as 18o3 a
North Carolina court announced that the definition of waste under the com
mon law in England was inapplicable in America where conditions were so
different. Ward v. Sheppard, 2 Hayward 283. An act of a tenant which was
"not prejudicial to the inheritance" was held no waste. Pynchon v. Stearns,
11 Mete. (Mass.) 3o4; Clemence v. Steere, 1 R. I. 272. Even England re
laxed the severity of its ancient rule. Doherty v. Allman, (1878) 3 App. Cas.
7o9. Today one group of courts agree with the holding in the instant case on
similar facts. Peer v. Wadsworth, 67 N. J. 191 ; Hamburger v. Settegast,
(Texas) 131 S. W. 639. The general tendency, though, has been to restrict
the application of the old law of waste, and to adapt the law to the condi
tions of a new and growing country. T1ffany, Real Prop., p. 561 ; Pynchon
v. Steams, supra. Under the more modern view to constitute waste the
alterations must be of a material and permanent nature, and must so change
the property as to depreciate the value of the inheritance. T1Edeman, Real
Prop., [2nd Ed.] Sec. 73. Whether an act is detrimental to the lessor and is
therefore waste is a question of fact for the jury. I Washburn, Real. Prop.,
[5th Ed.] 153; Melms v. Pabst Brewing Co., 1o4 Wis. 7. At the present time
it is to the interest of the public that a tenant should be hampered as little
as possible by restrictions vexatious to him without being of proportional
advantage to his lessor, who can, if he desires, protect himself by definite
covenants in the lease. Modern authority seems to be fast realizing the rea
sonableness of this view, and the narrowness of the view of the principal case.
L1bel and SlanderPubl1cat1on to Employees of DefendantCon
d1t1onal Prtv1l1ege.The plaintiff was the addressee and receiver' of a libel
lous letter written partly by the bookkeeper and partly by the general man
ager of the defendant corporation ; the letter before being mailed was shown
to the bookkeeper and the collector for the purpose of ascertaining whether
the statements were in conformity with the facts as they understood them.
Held, the occasion was conditionally privileged, and, there being no malice,
the publication of the letter was not actionable. Globe Furniture Co. v.
Wright, (C. A., Dist. of Col., 192o) 265 Fed. 873.
In solving such a case two questions present themselves : is the com
munication of a libellous letter by one employee of a corporation to another
employee of the corporation in the ordinary course of business a publication
by the corporation? If such a communication is a publication, is it condi
1o7
tionally privileged? The answers given by the courts differ. In Owen v.

Ogilvie Publishing Co., (1898) 32 App. Div. 465, 53 N. Y. Supp. 1o33, it was
held that the dictation of a libellous letter by the manager of a corporation
to a stenographer, an employee of the corporation, who copied and mailed
the same, did not constitute publication by the corporation. The court said,
"There was in fact but one act by the corporation, and those engaged in the
performance of it are not to be regarded as third parties, but as common
servants engaged in the act." In Central of Georgia Ry. Co. v. Jones, (1916)
18 Ga. App. 414, 89 S. E. 429, in Cartwright-Caps Co. v. Fischcl & Kaufman,
(1917) 113 Miss. 3S9, 74 So. 278, and in Prins v. Holland-North America
Mortgage Co. (1919) 1o7 Wash. 2o6, 181 Pac. 68o, the same rule was fol
lowed. In Morgan v. Wallis (1917 K. B. Div.) 33 T. L. R. 495, commented
upon in 17 M1ch L. Rev. 187, it was held that there was not such a publica
tion on the part of a private individual by the dictation to his typist as creates
a liability for libel. Obviously, where the court holds there is no publication,
the question of privilege does not arise. A number of courts, however, hold
that in such cases there is publication. In Pullman v. Hill, [1891] 1 Q. B. 524
(C. A.), it was held that the dictation of a libel by an officer of a mercantile
company to a stenographer employed by it, and its delivery to an office boy to
have press copies made, amounted to publications, that the publications were
not conditionally privileged, and hence were actionable. The court held there
was no conditional privilege because, as it said, the defendant clearly had no
duty to make the communication to the stenographer, nor had the latter any
interest in the matter. The case was followed in Gambrill v. Schooley, (19o1)
93 Md. 48, where a private individual made the dictation to his confidential
stenographer, and similarly, in Perdon v. Dickens, (19o9) 161 Ala. 181, 49
So. 888. In Boxsius v. Goblet Freres [1894] 1 Q. B. 842, it was held that the
dictation of a libellous letter by a solicitor to his stenographer in the interest
of a client's business, was a publication, but that it being in performance of
the solicitor's duty to his client was privileged on the part of the solicitor, and
that this privilege covered the ordinary method of performing his duties, in
cluding dictation of his letters to his stenographers. In Edmondson v. Birch
& Co., Ltd., [19o7] 1 K. B. 371, the court said that where as between two
business firms a communication of libellous matter was conditionally priv
ileged, that -privilege covered all the reasonable means of exercising it and
those reasonable means might include the introduction of third persons.
Where the communication is conditionally privileged between the principal
parties, this doctrine, in view of modern business methods, seems most reason
able. Where, as in the principal case, the communication is direct to the
plaintiff and does not involve the question of privilege as between the sender
and receiver, the basis of the decision in the principal case recommends itself,
i. ei, where the communication is made to those who, in the natural course of
their employment, have a duty to perform with regard to it, the communica
tion is conditionally privileged, and in the absence of malice, is not actionable.
L1bel and Slander; Slander of T1tle.One Jass owned a farm, and
gave a mortgage on it to defendant, which, since Mrs. Jass was away and
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MICHIGAN LAW REVIEW
could not execute it, was not recorded. Subsequently Jass conveyed to plain
tiff by warranty deed, presumably giving plaintiff no notice of the mortgage.
Defendant, hearing of conveyance, recorded the mortgage without Mrs. Jass'
signature, to secure any interest he might still have. Plaintiff's prospective
purchaser refused to purchase, and plaintiff brings action for slander of title.
Held, defendant was not liable. Kelly & First State Bank v. Rothsay, (Minn.,
192o) 177 N. W. 347.
Where the plaintiff possesses an estate in property, an action lies against
one who maliciously and falsely denies or impugns plaintiff's title, if any
damage is thereby suffered by plaintiff. ' Dodge v. Colby, 1o8 N. Y. 445 ; Linville v. Rhoades, 73 Mo. App. 217; Odgers, L1bel and Slander, [5th Ed.] p.
79; Newell, Slander and L1bel, [3rd Ed.] p. 254; see Ann. Cas. 1913C, 136o.
The gist of the action is the damage to the plaintiff. Kendall v. Stone, 5 N.
Y. 14; Felt v. Germania Life Ins. Co., 133 N. Y. S. 519. An interesting
speculation arises where a conveyor of land whose first grantee fails to record,
proceeds to convey to a second grantee who records, in those states where the
first grantee recording without notice has priority, as to whether the first
grantee could sue his grantor for slander of title. One advantage of this
remedy is in the possibility of exemplary damages. Hopkins v. Drowne, 21
R. I. 2o. Malice is essential to the maintenance of the action, Walkley v.
Bostwick, 49 Mich. 374; but intermeddling with the property of others with
which one is not concerned is deemed malice. Odgers, L1bel and Slander,
[Sth Ed.] p. 8o. The plaintiff must have title, Edwards v. Burris, 6o Cal. 157,
but in the situation just suggested the plaintiff had title at the time the second
conveyance was made, and by the familiar rule of estoppel, the defendant is
estopped from denying present title in the plaintiff, his grantee. The action
of slander of title has been maintained where defendant advertised and sold
under a false mortgage, Gare v. Condon, 87 Md. 368; where defendant fraud
ulently recorded a deed to himself, Smith v. Autry, 169 Pac. 623; where de
fendant filed a claim against the land, Collins v. Whitehead, 34 Fed. 121 ;
where defendant, a subsequent grantee, recorded subsequently to plaintiff, the
prior grantee, in Louisiana, where the peculiar action of slander to try title lies.
Atchafalaya Land Co., Ltd., v. Brownell-Drews Lumber Co., Ltd., 13o La. 657.
Generally, the plaintiff must show that the slander prevented an actual sale ; see
Lindon v. Graham, 8 N. Y. Super. Ct.67o; Felt v. Germania Life Ins. Co., st1pra
But it would seem that the purpose of this requirement is to show the special
damage, and in our hypothetical situation, where the plaintiff has lost all of
his property, he should have the remedy as well as one whose property has
simply not brought as high a price as it might have.
Master and ServantScope of EmploymentEmployer's L1ab1l1ty to
Th1rd Persons.The plaintiff, a minor child, while riding upon defendant's
truck by permission of the driver, sustained serious injuries by reason of the
driver's wanton negligence. It was conceded that it was against the driver's
express orders to allow anyone to ride with him. In an action for damages
against the employer, it was held, the employer was liable. Higbee Co. v.
Jackson, (Ohio, 192o), 128 N. E. 61.
109
It was formerly held that the master was not liable for the wanton and
wilful act of his servant, because the very fact of its being "wilful" precluded
the possibility of its having been within the scope of his employment. McManus v. Crickett, 1 East 1o6; Tuller v. Voght, 13 Ill. 277; Foster v. Essex
Bank, 17 Mass. 479; Mali v. Lord, 39 N. Y. 381 ; Ry. Co. v. Baum, 26 Ind. 7o.
But the modern rule is otherwise. Craker v. Ry. Co., 36 Wis. 657; Aiken v.
Holyoke St. Ry. Co., 184 Mass. 269; Magar v. Hammond, 183 N. Y. 387;
Stranahan Co. v. Coit, 55 Oh. St. 398, 4 L. R. A. (N. S.) 5o6, and note p. 485,
et seq.; Western Union Tel. Co. v. Catiell, 177 Fed. 71. In the principal case,
the majority of the court experience no difficulty in finding that the employe
was acting in the course of and within the scope of his employment at the
time of the injury. The unauthorized permission to ride was, as to the de
fendant, a nullity, and when the boy got upon the truck, "He was a trespasser,
so far as the defendant was concerned." But, conceding this, he was "entitled
to the rights of a trespasser," viz., that the defendant should not, through its
employe, wantonly or wilfully injure him. Jones, J., dissenting, maintained the
view that, since the permission to ride was clearly outside the scope of the
driver's employment, the defendant is not liable for the subsequent injury,
regardless of the degree of negligence exhibited by the employe. Of the
cases he cites to maintain his position, but one, Driscoll v. Scanlon, 165 Mass.
348, is noted by the majority opinion, wherein it is attempted to distinguish
it on the ground that there was in that case no positive act by the employe
leading to the injury. But, quaere, whether the omission of the servant in that
case was not as much in wanton disregard of the safety of the trespasser as
was the positive act in the principal case. It would seem that in none of the
other cases cited for this view in the dissent was the degree of negligence
passed upon and defined as being either ordinary or wanton. Schulwits v.
Delta Lumber Co., 126 Mich. 559; Dover, Admr. v. Mayes Mfg. Co., 157 N.
C. 324; Hoar, Admx. v. Maine Cent. Ry. Co., 7o Me. 65; Bowler v. O'Connell,
162 Mass. 319; Cut Stone Co. v. Pugh, 115 Tenn. 688; Kiernan v. N. J. Ice Co.,
74 N. J. L. 175; Scott v. Peabody Coal Co., 153 Ill. App. 1o3. And the last
two mentioned are clearly distinguishable from the instant case upon their
facts. The situation presented by the principal case is of common recurrence,
and the two opinions in this case represent the two points of view, between
which the courts are now divided. The majority opinion considers the ques
tion in the manner which is usually followed with regard to wanton injuries
of trespassers by employ6s of railroads, viz., that the railroad owes the tres
passer no duty except to do him no wanton or wilful injury. Kirtley v. Ry.,
65 Fed. 386; Ry. v. Hummell, 44 Pa. St. 375; Maynard v. Ry., 115 Mass. 458;
Ry. v. Graham, 95 Ind. 286; Bresbahan v. Ry., 49 Mich. 41o; Roden v. Ry.,
133 Ill. 72 ; Toomey v. Ry., 86 Cal. 374, 1o L. R. A. 139. See supra, p. 93.
Negl1genceParents' Negl1gence Imputed to the Ch1ld.P., an infant,
three years and nine months old, while on a busy street, unattended, was in
jured by D's automobile. Held, that the negligence of the child's parents, in
permitting it to be on the street unattended, would be imputed to the child,
so as to defeat a recovery by him, unless he exercises the care required of
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MICHIGAN LAW REVIEW
ordinarily prudent adult persons under the circumstances. Sullivan v. Chadwick, (Mass., 1o2o) 127 N. E. 633.
There has been much conflict in the authorities as to whether or not the
negligence of the parents would be imputed to the child, in an action brought
by it. The great weight of modern authority is, that such negligence will not
be imputed to the child. See cases in 11o Am. St. Rep. 283. The earlier
Massachusetts cases laid down the strict rule that the negligence of the parents
would be imputed to the child so as to defeat a recovery by it. Casey v. Smith,
(189o), 152 Mass. 294, Cotter v. Lynn & B. R. R. (19o1), 18o Mass. 145.
Later Massachusetts cases modified the strict rule of the earlier cases, and held
as in the principal case, that the child could recover, even though its parents
were negligent, if it did nothing which would be considered careless if its
movements were directed by an adult person of ordinary prudence. Wiswell
v. Doyle (1893), 16o Mass. 42, Miller v. Flash Chemical Co. (1918), 23o Mass.
419. The Massachusetts court again applies a strict rule in requiring a child
of tender years to exercise the same standard of care as is required of adult
persons. In the majority of jurisdictions in this country the plaintiff would
have recovered upon the facts of the principal case. The trial court found
a verdict for plaintiff, so it must have been shown that defendant was negli
gent. The negligence of the parents would not be imputed to the child.
Zarsona v. Neve Drug Co., et al (1919), Cal. , 179 Pac. 2o3. The child
would not be held to the degree of care required of adult persons, but only
to .that degree of care commensurate with its, age, experience, and under
standing, Lawrence v. Portland Ry. Light & Power Co. (1919), Ore. ,
179 Pac. 485, and some courts hold that up to the age of seven years a child is
incapable of such conduct as well constitute contributory negligence. Mc
Donald v. City of Spring Valley (1918), 285 Ill. 52, Quirk v. Metropolitan St.
Ry. Co. (1919), Mo. App. , 21o S. W. 1o3.
Nu1sanceBalance of Conven1enceSmelt1ng Compan1esCourt of
Equ1ty Recogn1zes Wart1me Necess1ty.Upon a bill to enjoin the opera
tion of certain smelters on the ground that such operation constituted a
nuisance, the court found the sulphur fumes emitted in the "smoke stream"
of the defendants to be injurious to the crops of the plaintiffs and to be an
unlawful interference with the rightful enjoyment of their homes. The trial
was closed in 1917. Pending the prosecution of the war no decree was made,
the court considering "that the plaintiffs could very well endure some discom
fort and take the chance of economic loss in the public interest." Now held,
that though the industry to be enjoined be a valuable one, the private right
to be free from noxious fumes in the air and the injuries to crops incident to
fumes is sufficient ground for an injunction forbidding the operation of de
fendant's smelters. Anderson v. American Smelting and Refining Co. (U. S.
D. C. Utah, 1919), 265 Fed. 928.
Since all the factors in the case remained constant, save the element of
public convenience, the successive rulings of the court are a demonstration
that the doctrine of balance of convenience is essentially one of balance, the
1n
application of which depends upon the precise weight of the elements which
fall into each pan of the scales. And it may be doubted whether some of the
courts which have wholly repudiated the doctrine might not yield to it if con
fronted with the circumstances which were first presented in the principal
case. Yet it might be argued that those particular circumstances arising out
of the conduct of the war are such as no court should take into account. In
Driver v. Smith, 1o4 Atl. 717, the court said that it would not refuse specific
performance of a contract on the ground that its enforcement would be detri
mental to a war industry, saying that "It would be an intolerable situation if
each court before whom the rights of individuals were to be litigated permitted
to determine whether the relief should be granted or withheld upon its
opinion as to whether the granting of the injunction would aid or injure
the government in its war activities." Approved in 17 M1ch. L. Rev. 376.
And the decision in Rosenwasser Bros.. Inc., v. Pepper, 172 N. Y. Sup. 31o,
that the court might enjoin a strike merely on the ground that it interfered
with the prosecution of the war, was adversely criticised in 32 Harv. L. Rev.
376. These arguments, however, are but a restatement of the objection to
the whole doctrine of the balance of convenience, that it is for the courts to
give their remedies solely upon the basis of existing legal rights, and for the
legislature to vary these rights, if the occasion requires. It is, however, by
many courts, held a proper ground for refusing an injunction against nuisance.
18 M1ch. L. Rev. 7o3. Yet, it may be conceded, if the doctrine is to be ac
cepted at all, there is no reason why the court should not consider, with all
the other elements in the case, the peculiar public interest growing out of the
prosecution of the war.
Nu1sanceFuneral Home 1n Res1dent1al D1str1ct.An undertaker
purchased and used as a funeral home a dwelling house in an exclusively
residential district. The spirits of the residents were depressed, their com
fort and enjoyment interfered with, and their property depreciated in value.
Held, a nuisance which may be enjoined. Beisel, et al v. Crosby (Neb., 192o),
178 N. W. 272.
In the early case of Westcott v. Middleton, 43 N. J. Eq. 478, where under
similar circumstances an injunction was refused, the court emphasized the
fact that the discomfort complained of was not produced through the medium
of the senses. A group of recent cases illustrates the tendency of the courts to
disregard this requirement and to recognize that mental distress and depres
sion, as well as physical discomfort may interfere with the comfortable en
joyment of property. In the following cases injunctions were granted against
undertaking establishments in residential districts, though there were no
noxious odors and no danger of disease. Densmore v. Evergreen Camp No.
147, 61, Wash. 23o; Saier v. Joy, 198 Mich. 295 ; Goodrich v. Starrett, 184 Pac.
22o. Injunctions against private hospitals and asylums have frequently been
granted on substantially the same grounds. Barth v. Chr1stian Psychopathic
Hosp. Assn., 163 N. W. 62; Everett v. Paschall, 61 Wash. 47. For recent
cases holding valid ordinances declaring it unlawful to maintain undertaking
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MICHIGAN LAW REVIEW
parlors except in business districts see City of St. Paul v. Kessler, et at,
178 N. W. 171 ; Osbom v. City of Shrcveport, 143 La. o32. See also 18 M1ch.
L. Rev. 246.
Publ1c Ut1l1t1es RatesPowek of Comm1ss1on to Change Contract
Rates.A traction company obtained consent of the city of New York to
construct and operate a street railway. The consent was given upon the con
dition that five cents should be the maximum fare. The successor to the
rights of the traction company applied to the Public Service Commission for
authority to charge a higher fare on the ground that the five cent fare was
inadequate to enable the company to continue service. The city secured a writ
of prohibition directed to the commission. Held, that the order issuing the
writ should be reversed. People v. Nixon (N. Y., 192o), 128 N. E 247.
This adds another to the rather variegated New York cases previously
noticed in 18 M1ch. L. Rev. 32o, 8o6. In those former cases the public utilities
were sometimes granted and sometimes denied release from contract rates.
The court recognizes the power of the legislature as paramount to that of the
municipality, except where there has been clear grant of the power by the
legislature to the municipality to enter into such a contract with the utility.
The instant case is decided against the city, Hogan, J., dissenting, on the
ground that at the time the franchise was granted the law gave the commis
sion power to raise or lower rates, and municipalities by their contracts may
not nullify existing statutes. In a case decided on the same day as the Nixon
case, supra,Niagara Falls v. Public Service Com. (N. Y., 192o), 128 N. E.
247, the court in an opinion written by Hogan, J., who dissented in the Nixon
case, held that prohibition does lie to restrain action by the commission to
change fares fixed in a contract made when the New York statute gave the
commission no power over rates fixed by contract with the municipality. The
court refused to pass upon whether the legislature under the police power of
the state had the power to abrogate such agreements over the objection of
the municipality. It was enough for that case that the legislature had three
times since the decision of Quinby v. Public Seru. Com., 223 N. Y. 244, re
fused to confer any such power on the commission. See 18 M1ch. L. Rev.
32o. McLaughlin, J., dissented on the ground that the city made the contract
subject not merely to the laws as they then existed, but "as they might there
after be changed by the legislature," citing Puget Sound T. K. and P. W. v.
Reynolds, 244 U. S. 574. See the extensive annotation of this and other cases
in 5 L. R. A. 13, 36, 44, 6o. The dissenting judge is ready to pass on the
point which the court refuses to decide, and takes the broad ground that
this police power is "something the state cannot surrender, because to do so
would be to surrender a sovereign power." Asserting that the legislature has
conferred this power upon the commission he holds that the prohibition would
not lie. In still a third case decided on the same day, People v. Nixon, 128
N. E. 255, the New York court passes on several cases, making the power of
the commission over franchises granted by municipalities depend upon the
state of the law at the time the franchise was granted. It is still an open
question in New York whether the legislature can empower the commission
"3
to change rates fixed in contracts made by municipalities acting under clear

legislative sanction; the court finds the legislature thus far has not given the
commission any such power and so a decision of that point has not been
necessary. Notwithstanding the numerous dissents on these cases it seems
reasonably sure that the court would decide in favor of such power in the
legislature if the legislature were to attempt to exercise it, and so it is be
lieved would the Federal courtsand most of the state courts hold. See, for
example, Public Utilities Com. v. Rhode Island Co. (R. I., June 3o, 192o),
11o Atl. 654, upholding the paramount authority of the state to regulate rates
through the agency of a commission. The opinion, however, quotes from
Milwaukee E. R. and L. Co. v. Railroad Com., 238 U. S. 18o, a paragraph
recognizing the right to make contracts which shall prevent the state during
a given period from exercising this power over rates, though such renuncia
tion of a sovereign right must be so clearly and unequivocally evidenced as to
admit of no doubt. If it be in the full sense a sovereign power it is difficult
to see how it can be surrendered, no matter how clear and unequivocal the
language.
The Rule 1n Shelley's CaseFurther Qual1fy1ng Words.The deed
in question conveyed certain premises to the plaintiff "for life, remainder in
fee simple to the heirs begotten of the body * * *." The plaintiff brought suit
to quiet title against her son as defendant on the theory that she was entitled to
an estate in fee tail by operation of the Rule in Shelley's Case, and that this,
in turn, was converted into a fee simple by birth of issue. Notwithstanding a
statute which provided that "the court shall carry into effect the expressed
intent of the parties," it was held, that the Rule in Shelley's Case is still in
force in Nebraska; but, that the plaintiff was entitled to a life estate only,
since the words, "heirs of the body", were not used in their technical sense,
the grantor having also provided that such heirs should take a fee simple.
Yates v. Yates (Neb., 192o), 178 N. W. 262.
The decision is one of many examples of the tenacious grip of this obso
lete doctrine of the common law upon our present day jurisprudence. See,
Doyle v. Andis, 127 Iowa 36; 3 M1ch. L. Rev. 393. Nebraska still clings to
the rule which has now been abandoned by most of the states of this country.
IVilson v. Terry, 13o Mich. 73; Richardson v. Wheatland, 7 Met. 169. It is
curious to note that the court, in the principal case, attempts to justify the
operation of the Rule in Shelley's Case by its giving effect to the general
intent over and against the particular intent. Yates v. Yates, supra, at page
263; Fraser v. Chene, et al, 2 Mich. 81, 91. The theory of general and par
ticular intent has now been exploded. Gray, The Rule Aga1nst Perpetu1t1es,
881-2; Doe v. Gallini, 5 B, & Ad 621, 64o. However, the court was un
doubtedly correct in its decision that the technical force of the words, "of the
body", was destroyed by the further d1rection that the estate in remainder was
to be a fee simple. Ault v. Hillyard, 138 Iowa 239. It is worthy of note that
the court, in the principal case, might have arrived at the same decision by
construing the words of the instrument with reference to the intent of the
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MICHIGAN LAW REVIEW
grantor without determining the question, whether or not the Rule in Shelley's
Case is in force in Nebraska.
TrademarksReg1strat1on.Petitioner had applied for registration of a
trademark containing a merely descriptive phrase, but consisting of nondescriptive and otherwise registerable matter in conjunction therewith. The
Commissioner refused to register the mark unless the descriptive phrases
were first erased therefrom. Held, the ruling was error and the mark should
have been registered as filed. Estate of P. D. Beckwith, Inc. v. The Com
missioner of Patents (192o), 4o Sup. Ct. Rep. 414.
The statute provides that no mark consisting "merely" of descriptive
words may be registered. Originally the practice of the Patent Office had
been to register marks which were otherwise proper, despite the fact that
they contained some descriptive words. In Johnson v. Brandau, 32 App. D. C.
348, the Commissioner had held that "registration of a trademark is permitted
where the controlling and distinguishing feature of the mark is an arbitrary
symbol, although such symbol may be accompanied by accessories which in
themselves are not registerable." The appellate court, however, held the mark
not registerable until the applicant should disclaim and omit the words ob
jected to. In Nairn Linoleum Works v. Ringwalt Linoleum Works, 46 App.
D. C. 64, application had been made for registration of a mark consisting of
a registerable symbol accompanied by the descriptive words, "Ringwalt's Lino
leum." The applicant, on requirement by the Commissioner, expressly dis
claimed the descriptive words. The appellate court held that such disclaimer
was not sufficient; that it would lie hidden in the vaults of the Office, while
the mark would go out to the public as though the words and the symbol were
both protected; that the objectionable words must be not merely disclaimed
but must be omitted from the mark. The principal case rejects this latter
proposition and holds that only marks consisting merely of descriptive words
can be refused registration. It restores the practice of registering otherwise
proper marks even though they contain unregisterable parts, at least, if the
unregisterable parts are disclaimed by the applicant. There is basis in the
opinion, however, for further decisions to limit this practice to cases where
the omission of the unregisterable parts would seriously affect the basic
character of the whole mark.
Spec1f1c PerformanceR1ght of a Quas1 Adopted Ch1ld to Sue For.
When the plaintiff was at the age of six, his guardian and foster parents
entered into an oral contract whereby they agreed that they would legally
adopt the plaintiff and make him "heir to their property as a son of their own
blood." However, adoption papers were never taken out. The plaintiff lived
with his foster parents for twenty-four years when his foster father died.
The heirs at law of the foster parents claim the estate. The plaintiff sues for
specific performance of the contract. Held, that the plaintiff was entitled to
specific performance, and that part performance would enable equity to take
the contract out of the Statute of Frauds. Evans v. Kelly, et al, (Neb., 192o),
178 N. W. 63o.
115
Adoption is solely the creature of statutes, and hence, if the provisions of

the statute are not strictly complied with, the legal status of the child remains
unchanged. Peck, Domest1c Relat1ons, 1o6; Woodward's Appeal, 81 Conn.
152, 165. A mere oral contract to adopt will not, of itself, give the quasiadopted child the right to inherit from its foster parents. Grantham v.
Gossett, 182 Mo. 651. However, the modern tendency seems to be that, where
there is a clear and unambiguous provision that the child shall inherit, equity
will give effect to the contract in favor of the foster child. Wright v. Wright,
99 Mich. 17o; Chehak v. Battles, 133 Iowa 1o7. Such contracts are taken out
of the Statute of Frauds on the ground of the part performance on the part
of the child in rendering service to his foster parents. Wright v. Wright,
supra; Van Dyne v. Vreeland, 12 N. J. E. 142, 15o. As to the rights generally
of legally adopted children, see, 18 M1ch. L. Rev. 542.
TrespassCont1nu1ngL1m1tat1on of Act1ons.Plaintiffs owned a
tract of land fronting on a public street. More than six years before this
action was commenced, the county, in order to straighten the street, entered
and took possession of a strip of the plaintiff's land, filled it in to make it
correspond to the grade of the highway, and turned it over to public use.
Defendant did not try to justify its act, but relied on the Statute of Limitations
as its only defense. Held, the instrucion of the court, that the statute was no
bar because the trespass was a continuous one, was correct. Morey v. Essex
County (N. J., 192o), 11o Atl. oo5.
This decision is in line with the prevailing authority in holding that an
obstruction placed wrongfully upon another's land is a continuing trespass as
long as it remains there. Pappenhiem v. The Met. El. Ry. Co., 128 N. Y. 436;
Milton v. Puffer, 2o7 Mass. 416; Holmes V. Wilson, 37 E. C. L. 273. It
throws no light, however, upon the untenable distinction, recognized by most
courts, between a hole and an obstruction. Kansas Pac. Ry. v. Mihlman, 17
Kan. 224; Nat. Copper Co. v. Minn. Mining Co., 57 Mich. 83. See also the
note on "Continuous Trespass," 18 M1ch. L. Rev. 679. The Court does not
even intimate what its decision would have been had this been a ditch or a
hole instead of an obstruction.
Tr1alSwear1ng the Jury After the Ev1dence Is In.The defendant
was indicted for murder. On the trial the jurors were sworn on their voir
dire, and after twelve jurors were found to be qualified they were accepted
by both the defendant and the state. Immediately thereafter the evidence
was put in and both sides rested. It was then discovered and made known
for the first time that the jury had not been sworn to try the case. Over the
defendant's objection the jury was at once sworn to well and truly try the
case and a true verdict give, the arguments of counsel were made, and the
case was submitted to the jury, who returned a verdict of guilty. Error was
assigned on the ground that the defendant had been denied a jury trial be
cause the jury was not under oath when the evidence was presented. Held,
(two judges dissenting), that the defendant had been denied a jury trial.
Miller v. State (Miss., 192o), 84 So. 161.
n6
MICHIGAN LAW REVIEW
Only one other case passing upon this precise question has been found,
and strangely enough that was a case before the same court and was decided
exactly the other way, though it is not even mentioned in either the majority
or minority opinions in the principal case. Boroum v. State (1913), 1o5 Miss.
887. In that case it appeared that seven of the jurors had not been sworn to
try the case before the jury retired to consider their, verdict, but the proper
oath was administered before any conference or consultation was held. The
court unanimously agreed that inasmuch as the verdict was considered and
arrived at after the jurors were sworn, the right of trial by jury was not "in
any way denied, impaired or diminished by the delay in swearing the jurors."
MICHIGAN
LAW
Vol.. XIX.
REVIEW
DECEMBER, 192o
CONSTITUTIONAL LAW IN 1919-192o.

III.
No. 2
II1
Taxat1on
TWO important cases sustained objections to applications of

the federal income tax. In each there was vigorous dis
sent. Evans v. Gore2 held that the constitutional provision that the
federal judges shall receive "a compensation which shall not be di
minished during their continuance in office" applies to diminution
by inclusion of that compensation in the assessment of the
general federal tax on net income. The case at bar involved a tax
on the 1918 compensation of a judge appointed in 1899. While not
directly qualified by anything in the opinion, the decision would seem
to have no application to judges appointed after the law taxing their
income was first enacted. So also any increase in compensation
should be subject to a tax on the books when the increase is ac
corded. There would be force in the argument that the increase
might be accompanied by subjection to a tax on the total compen
sation, provided the net residue is greater than the salary before
the increase. The opinion of the court pointed out that the salary
of the President is also protected from diminution and that the tax
1 For the preceding installment reviewing cases on Miscellaneous Na
tional Powers and Regulations of Commerce, see 19 M1ch. L. Rev. 1-34
(November, 192o).
*2S3 U. S.
, 4o Sup. Ct. 55o (192o). Mr. Justice Holmes wrote a
dissenting opinion in which Mr. Justice Brandeis concurred. See Edward S.
Corwin, "Constitutional Law in 1919-192o," 14 Am. Pol. Sc1. Rev. 635, at pp.
641-644, and notes in 2o Colum. L. Rev. 794; 34 Harv. L. Rev. 7o, 85; 7 Va.
L. Rev. 69, 76; and 3o Yale L. J. 75- For a note on the case in the court
below, see 18 M1ch. L. Rev. 697.
n8
MICHIGAN LAW REVIEW
on the salary is a diminution thereof. This, too, should have no

application to a president who assumes office after the income tax
is in force. Unless, therefore, the offending provision in the in
come tax is formally repealed, it ought to be applicable to all future
presidents and judges. It is somewhat surprising that the court
should fail to point out this limit to the scope of the decision. Most
of Mr. Justice Van Devanter's opinion is a recital of the history of
the clause in question and a dissertation on the importance of the
independence of the judiciary. Nowhere does he directly refute the
contention of the minority that this independence is not threatened
by subjection to a burden that is borne equally by all citizens.
He insists that taxation is diminution and that diminution of any
kind is prohibited by the Constitution. The minority make two
other points. One is that the salary had lost its identity before the
assessment of the tax on total net income for the year. The other
is that the Sixteenth Amendment, giving Congress power to tax
income from whatever source derived, specifically authorizes the
tax in question. The majority's answer to the latter contention
is the one previously accepted by a majority of the court in the
Stock Dividend Case, i. e., that the Sixteenth Amendment does
not extend the federal taxing power to new subjects, but merely
forbids looking at the source of income to ascertain whether a
tax thereon is in substance a direct tax."
The Stock Dividend Case is Eisner v. Macomber* This held
8 For articles on other problems of federal taxation see Arthur A. Ballantine, "Some Constitutional Aspects of the Excess Profits Tax", 29 Yale L. J.
625, Minor Bronaugh, "Regulation of Child Labor by Federal Taxation", 23
Law Notes 7, Robert Eugene Cushman, "The National Police Power Under
the Taxing Clause of the Constitution", 4 M1nn. L. Rev. 247, Harry Hub
bard, "The Sixteenth Amendment", 33 Harv. L. Rev. 794, and Noel Sargent,
"Bills for Raising Revenue Under the Federal and State Constitutions", 4
M1nn. L. Rev. 33o. For a note on federal taxation of child labor see 6 Va.
L. Rev. 535. Cases holding that the federal estate tax is chargeable against
the residuary estate and not against specific legacies are discussed in 33
Harv. L. Rev. 323, 18 M1ch. L. Rev. 161, and 29 Yale L. J. 124. The ques
tion of statutory construction whether a state inheritance tax may be de
ducted from the assessment of the federal ;ncome tax is considered in 2o
Co1.um. L. Rev. 229, and 3o Yale L. J. 1o9.
4 252 U. S. 189, 4o Sup. Ct. 189 (192o). See Charles E. Clark, "Eisner v.
Macomber and Some Income Tax Problems", 29 Yale L. J. 735, Edward S.
Corwin, op. cit. 14 Am. Pol. Sc1. Rev. 635, Fred R. Fairchild, "The Stock
CONSTITUTIONAL LAW
119
by a five to four vote that a stock dividend is capital and not

income. A tax thereon is therefore a direct tax which must be
apportioned among the states according to population.
Mr.
Justice Brandeis, in a dissent concurred in by Mr. Justice Clarke,
argued that the stock dividend is a transfer by the corporation to
the stockholder of a different interest from that which he had be
fore and is substantially similar to a cash dividend or to a dividend
in property such as the stock of another corporation, both of
which had been held to be income. For the majority Mr.
Justice Pitney distinguished these cases by saying that they
dealt with transactions in which the stockholder got something with
which the corporation had parted. In issuing a stock dividend, how
ever, a corporation retains all its assets. The stockholder gets none
of them. He gets nothing but new pieces of paper which reduce the
value of his old pieces of paper, so that the old and the new to
gether are worth no more than the old were worth before the split.
Mr. Justice Brandeis sought also to analyze the tax on stock divi
dends as a way of looking through the corporate entity and taxing
the stockholder on his interest in the income of the corporation, but
postponing the tax until that corporate income takes the form of a
stock dividend. To this, Mr. Justice Pitney retorted that, unless
the corporation is treated as a substantial entity, separate from the
stockholder, there is no income to the stockholder except as the
corporation acquires it. Any payment by the corporation to the
stockholder is merely a change of the stockholder's money from
one pocket to another. The argument of the government that the
stock dividend measures the extent to which gains accumulated by
the corporation have made the stockholder richer was answered by
Dividend Decision", 5 Bull. Nat. Tax Ass'n. 2o8, Thomas Reed Powell,
"The Stock Dividend Decision and the Corporate Nonentity", 5 Bull. Nat.
Tax Ass'n. 2o1, "The Judicial Debate on the Taxability of Stock Dividends
as Income", 5 Bull. Nat. Tax Ass'n. 247, "Stock Dividends, Direct Taxes,
and the Sixteenth Amendment", 2c Colum. L. Rev. 536, A. M. Sakolski,
"Accounting Features of the Stock Dividend Decision", 5 Bull. Nat. Tax
Ass'n. 212, Edward H. Warren, "Taxability of Stock Dividends as Income",
33 Harv. L. Rev. 885, and "iHs in 18 M1ch. L. Rev. 689, 4 M1nn. L. Rev.
462 68 U. Pa. Law Rev. 3o^, o Va. L. Reg. n. s. 22o, and 29 Yale L. J. 812.
For an article written prior to the decision and submitted to the Supreme
Court as part of the brief for Mrs. Macomber, see Edwin R. A. Seligman.
"Are Stock Dividends Income?" 9 Am. Ec. Rev. 517.
12o
MICHIGAN LAW REVIEW
saying that this would depend upon how long he had held his stock
and that any such enrichment is merely an increase in capital in
vestment and not income. The central position of the majority is
that separation and receipt of something are essential to income and
that there is no separation and no receipt when the corporation
parts with none of its assets. Mr. Justice Brandeis's answer is
that substantially the stock dividend is equivalent to a dividend in
the stock of a subsidiary and to an extraordinary cash dividend
coupled with a preferential opportunity to subscribe to a propor
tionate amount of newly issued stock, both of which have been held
to be taxable income. Mr. Justice Holmes, in a separate dissent
concurred in by Mr. Justice Day, concedes that on sound princi
ples a stock dividend is not income, but adds:
"I think that the word 'incomes' in the Sixteenth Amend
ment should be read in 'a sense most obvious to the common
understanding at the time of its adoption' .... For it was
for public adoption that it was proposed. . . . The known
purpose of this amendment was to get rid of nice questions
as to what might be direct taxes, and I cannot doubt that
most people not lawyers would suppose when they voted for
it that they put a question like the present to rest. I am of
the opinion that the Amendment justifies the tax."5
Complaints against state taxation fall under four main heads :
(1) lack of jurisdiction; (2) wrongful discrimination; (3) im
proper procedure for assessment or collection; and (4) exaction
of money for purposes not public. This classification will be fol8 For decisions in suits to recover succession taxes assessed under the
Spanish War Revenue Act, see Henry v. United States, 251 U. S. 393, 4o
Sup. Ct. 185 (192o), and Simpson v. United States, 252 U. S. 547, 4o Sup.
Ct. 367 (192o). The question when income is received within the meaning
of the federal Income Tax Act is considered in Maryland Casualty Co. v.
United States, 251 U. S. 342, 4o Sup. Ct. 155 (192o). Questions of allowahle deductions under the Income Tax Act are answered in Penn Mutual
Life Ins. Co. v. Lederer, 252 U. S. 523, 4o Sup. Ct. 397 (192o).
For a note on United States v. Doremus, 249 U. S. 86, 39 Sup. Ct. 214
(1919) which sustained the Harrison Narcotic Drug Act, see 6 Va. L. Rev.
535. Crocker v. Malley, 249 U. S. 223, 39 Sup. Ct. 27o (1919). dealing with
the assessment of the federal income tax on Massachusetts real estate trusts,
is considered in 33 Harv. L. REV. 118.
CONSTITUTIONAL LAW
1a1
lowed so far as possible, except that all complaints against special

assessments will be treated together. Two cases applied the wellestablished rule that intangibles may be taxed to their owner at his
domicile. Maguire v. Trcfry" approved of a tax at the domicile on
income from a trust estate created and administered in another
state in which the securities were kept by the trustee. The income
tax in question was not a general one, but a substitute for the ordi
nary tax on intangibles. The subject matter of the tax was said to
be "the property right belonging to the beneficiary, realized in the
shape of income." Though the legal title to the property was held
in another state, the beneficiary was said to have "an equitable right,
title and interest distinct from its legal ownership." The case was
said to present no difference in principle from the taxation of
credits to the creditor at his domicile. Mr. Justice Day wrote the
opinion of the court. Mr. Justice McReynolds dissented, without
opinion.
Cream of Wheat Co. v. Grand Forks County7 sustained a tax
on the value of the outstanding stock of a domestic corporation,
in excess of the value of the real and personal property and
certain indebtedness. Mr Just1ce Brandeis said that it is not ne
cessary to consider whether the demand is an excise tax or a prop
erty tax: It is either, on intangibles or measured by them and is
therefore good. The absence of tangible property in the state
makes no difference. Though the intangible may be taxed at the
situs of the tangible with which it is associated, it may also have a
situs of its own at the domicile of the corporation. The Four
teenth Amendment does not prohibit bi-state double taxation."
The vice of extraterritoriality can be committed not only by
directly taxing property beyond the jurisdiction but also by taking
account of such property to increase the assessment of what is concededly taxable. An instance of this appears in Wallace v. Mines*
already considered in the sub-section on state taxation of interstate
8 -'S3 U. S. 12. 4o Sup. Ct. 417 (192o). See 9o Cent. L. J. 439.
'253 U. S.
, 4o Sup. Ct. 558 (192o).
'For a note on taxing a stock-exchange seat as intangible property at
the domicile of the owner, see 29 Yale L. J. 916. On the mode of assessing
good will see 33 Harv. L. Rev. 323. On the situs of property transferred by
executors to themselves as trustees under the will see 29 Yale L. J. 467.
253 U. S. 66, 4o Sup. Ct. 435 (192o), 19 M1ch. L. Rev. 3o.
122
MICHIGAN LAW REVIEW
commerce. This corrected North Dakota's assumption that it con

tains as much of the total value of an interstate railroad as the
length of the main track in North Dakota bears to the length of
the whole line. The opinion declares specifically that this defect is
as bad in an excise on foreign corporations as in a tax formally on
their property. The exaction is called "an unwarranted interfer
ence with interstate commerce and a taking of property without due
process of law." Whether it would be a violation of the due pro
cess clause if the corporation were not engaged in interstate com
merce is not specifically declared, but all the discussion in the opin
ion is on the evil of assessing extraterritorial values. An old case10
not explicitly overruled sanctions an excise on a foreign corporation
not engaged in interstate commerce though the assessment takes ac
count of total capital stock representing property largely in other
states. As elaborated elsewhere,11 this case can be distinguished
logically from decisions like Wallace v. Hines which adduce the due
process as well as the commerce clause to annul similar taxes on
foreign corporations engaged partly in interstate commerce. But
the tenor of recent opinions makes it pretty evident that the court
is prepared to accord to foreign corporations engaged exclusively
in local commerce the same relief that it gives to those doing a
combined local and interstate business.12
Complaints of non-residents against state inheritance and state
income taxes include extraterritoriality and discrimination against
citizens of other states. The inheritance tax case is Maxwell v.
Bugbee." In assessing its inheritance tax on the tangible property
and the stock in New Jersey corporations left by non-resident de10 Horn Silver Mining Co. v. New York, 143 U. S. 3o5, 12 Sup. Ct.
4o3 (1892).
""The Changing Law of Foreign Corporations", 33 Pol. Sc1. Quart.
549, and "State Excises on Foreign Corporations", Proceed1ngs of the Na
t1onal Tax Assoc1at1on for 1919, page 23o.
For notes on the Connecticut corporate excise measured by income, see
2o Colum. L. Rev. 324, and 33 Habv. L. Rev. 736. The Connecticut decision
has since been affirmed by the Supreme Court. For a discussion of an excise
on vehicles measured by their capacity see 33 Harv. L. Rev. 737.
"25o U. S. 525, 4o Sup. Ct. 2 (1919). See Joseph F. McCloy, "Tricks
of Taxation Under the New Jersey Inheritance Tax Law", 3 Bull. Nat.
Tax Ass'n. 145, and notes in 33 Harv. L. Rev. 582, 616, 14 IIl. L. Rev. 661,
68 U. Pa. L. Rev. 184 and 29 Yale L. J. 464.
CONSTITUTIONAL LAW
123
cedents, New Jersey takes that part of the tax that would have
been due on the whole estate, had the decedent been a resident,
as the taxable property in New Jersey bears to the whole estate.
The effect of this is to use extra-state property to determine the ap
plication of the progressive rates of assessment to the New Jersey
property. The rate depends not on the amount of New Jersey as
sets but on the total assets of the estate. The New Jersey assets
thus get placed somewhere around the middle of the estate instead
of at the bottom. In dissenting from the judgment sustaining the
tax, Mr. Justice Holmes for himself, the Chief Justice and Justices
Van Devanter and McReynolds observed:
"Many things that a legislature may do if it does them
with no ulterior purpose, it cannot do as a means to reach
what is beyond its constitutional power. . . . New Jersey can
not tax the property of Hill or McDonald outside the State
and cannot use her power over property within it to accom
plish by indirection what she cannot do directly
It seems to me that when property outside the State is
taken into account for the purpose of increasing the tax
upon property within it, the property outside is taxed in
effect, no matter what form of words may be used. It ap
pears to me that this cannot be done, even if it should be done
in such a way as to secure equality between residents in New
Jersey and those in other states.
New Jersey could not deny to residents in other States
the right to take legacies which it granted to its own citi
zens, and therefore its power to prohibit all legacies cannot
be invoked in aid of a principle that affects the foreign resi
dents alone."
The majority, however, speaking through Mr. Justice Day, in

voked the principle sometimes applied that taxes on a privilege
may be measured by property not itself subject to levy. The tax
is not on property and therefore not on extra-state property. The
apparent discrimination against non-residents is not a denial of
equal protection of the laws or a violation of the provision that "the
citizens of each state shall be entitled to all privileges and immuni
ties of citizens in the several states." The reason is that the dis
crimination is based on a reasonable classification and not an arbi
124
MICHIGAN LAW REVIEW
trary one. The resident decedent stands in a different relation to

the state than does the non-resident. His whole estate is taxed on
its devolution, while not all even of the New Jersey assets of non
residents enter into the assessment of their estates. "The question
of equal protection must be decided as between resident and non
resident decedents as classes, rather than by the incidence of the tax
upon the particular estates" before the court. Inequalities "that re
sult not from hostile discrimination, but occasionally and incident
ally in the application of a system that is not arbitrary in its classi
fication, are not sufficient to defeat the law."14
The two state income tax cases are Shaffer v. Carter" and
Travis v. Yale & Tovme Mfg. Co." Mr. Shaffer, who lived in
Chicago, did not want to be taxed by Oklahoma on income arising
from Oklahoma oil wells. He argued that an income tax is a per
sonal tax and can therefore not be levied on persons not domiciled
in the taxing jurisdiction. Mr. Justice Pitney answered that "this
argument, on analysis, resolves itself into a mere question of defini
tions, and has no legitimate bearing upon any question raised under
** For articles on inheritance taxation see R. W. Carrington, "Death
Duties", 6 Va. L. Rev. 568, Charles W. Gerstenberg, "The Importance of
Unification of Inheritance Tax Laws'", 5 Bull. Nat. Tax Ass'm. 281, Thomas
Reed Powell, "Extra-territorial Inheritance Taxation", 2o Colum. L. Rev.
1, 283, Allen Sherman, "Studies in Inheritance Taxation", 13 Ma1ne L. Rev.
78, 127, and Delger Trowbridge, "Inheritance Tax Laws as Affecting Powers
of Appointment", 8 Cal1f. L. Rev. 216.
The following editorial notes deal with inheritance taxation : transfers
inter vivos, 33 Harv. L. Rev. 481, 15 IIl. L. Rev. 1o6; foreign realty under
doctrine of equitable conversion, 5 Iowa L. Bull. 278, 29 Yale L. J. 8o8;
suit in foreign state to collect inheritance tax, 5 Cornell L. Q. 3o9, 33 Harv.
L. Rev. 84o, 87o; whether Hetty Green was doing business in New York
within the meaning of the inheritance tax law, 33 Harv. L. Rev. 616, 18
M1ch. L. Rev. 346; transfer of joint account at death of one joint owner, 29
Yale L. J. 465 ; land devised in fulfillment of contract ordered sold to pay
inheritance tax, 29 Yale L. J. 8o8; extra inheritance tax on property not
taxed during lifetime of deceased, 2o Colum. L. Rev. 625.
"252 U. S. 37, 4o Sup. Ct. 221 (192o). See 9o Cent. L. J. 277, 2o
Colum. L. Rev. 457, 18 M1ch. L. Rev. 547, and 29 Yale L. J. 799.
"252 U. S. 6o, 4o Sup. Ct. 228 (192o). See references in note 15 supra.
For articles on the New York income tax written prior to the decision in the
principal case see Edwin R. A. Seligman, "The New York Income Tax", 34
Pol. Set. Quart. 521, and "The Taxation of Non-residents in the New York
Income Tax", 5 Bull. Nat. Tax Ass'n. 4o.
CONSTITUTIONAL LAW
the federal Constitution." He reviewed what Oklahoma did for
Mr. Shaffer's oil wells and concluded: "That it may tax the land
but not the crop, the tree but not the fruit, the mine or well but net
the product, the business but not the profit derived from it, is wholly
inadmissible." Another ingenious contention levelled against the
tax was that the income assessed is the joint product of Oklahoma
wells and Chicago intelligence and that since Oklahoma cannot tell
how much comes from the earth and how much from extra-state
management, it cannot tax any. This was answered by saying that
"at most, there might be a question whether the value of the service
of management rendered from without the state ought not to be al
lowed as an expense incurred in producing the income ; but no such
question is raised in the present case and we express no opinion
upon it." The complaint that non-residents are discriminated
against because they are not allowed to deduct losses incurred in
other states, as residents are allowed to do, was dismissed by point
ing out that residents are taxed on income from other states while
non-residents are not. The difference of treatment "is only such
as arises naturally from the extent of the jurisdiction of the state
in the two classes of cases, and cannot be regarded as an unfriendly
or unreasonable discrimination." An interesting question respect
ing the procedure for collecting the tax will be dealt with in a
moment.
Travis v. Yale & Towne Mfg. Co." reaffirmed the power of a
state to tax the income of non-residents earned within its borders.
The principle was declared to cover incomes "arising from any
business, trade, profession, or occupation" carried on within the
borders of the state. The discussion of the procedure for collect
ing the tax, which will be considered later, makes it clear that in
come earned within the state is taxable though the income is paid
and received elsewhere. But this New York tax on the income of
non-residents was held unconstitutional because residents were al
lowed personal and family exemptions while non-residents were
not. Whether the non-resident must be granted the same exemp
tion as the resident or only such part thereof as his New York
income bears to his total income was not considered. The dis
crimination before the court was held to be forbidden by the
" Note 15, supra.
Ij6
MICHIGAN LAW REVIEW
clause declaring that "the citizens of each state shall be entitled to

all privileges and immunities of citizens in the several states." The
statute was said to produce, not merely "a case of occasional or ac
cidental inequality due to circumstances personal to the taxpayer,"
like that in the New Jersey inheritance tax law, but "a general rule,
operating to the disadvantage of all non-residents including those
who are citizens of the neighboring states, and favoring all resi
dents including those who are citizens of the taxing. state." New
Jersey and Connecticut citizens compete with New York citizens
for New York jobs, as the Constitution gives them the right to do.
"Whether they must pay a tax upon the first $1,ooo or $2,oo0 of in
come, while their associates and competitors who reside in New
York do not, makes a substantial difference."
In two other cases corporations insisted that discriminations
against them worked a denial of equal protection of the laws. The
complainant in F. S. Royster Guano Co. v. Virginia1* was success
ful. All the court but Justices Brandeis and Holmes thought it
arbitrary and unreasonable to make domestic corporations doing
some business in the state pay a tax on all their income wherever
earned, while domestic corporations doing no business in the state
paid on none of their income. Hence they relieved the sufferer
from the exaction on its extra-state income. Mr. Justice Brandeis,
in dissenting, thought of a reason for the difference of treatment.
There were other taxes to which all domestic corporations are
alike subjected. Thus the state gets revenue from corporations
chartered there but doing all their business elsewhere. This rev
enue might be lost if such corporations found Virginia's demands
so exacting that they changed their domicile to some sister state
Corporations doing business in Virginia would be less apt to try to
move. This is to say that it is reasonable to squeeze some and not
others when the others have a source of self-help which the some
have not.
Though the complainant in Ft. Smith Lumber Co. v. Arkansas1'
was sent away comfortless, it had the satisfaction of knowing that
Justices McKenna, Day, Van Devanter and McReynolds sympa
thized with it. They dissented, but without saying why. Under the
"253 U. S.
, 4o Sup. Ct. 56o (192o). See 2o Colum. L. Rev. 793.
"251 U. S. 532, 4 Sup. Ct. 3o4 (192o).
CONSTITUTIONAL LAW
127
Arkansas law individual stockholders of domestic corporations

were not taxed on their stock, nor were they subject to reassess
ment of back taxes. To a domestic corporation which desired simi
lar treatment, Mr. Justice Holmes replied for a majority of the
court :
"The objection to the taxation as double may be laid on one
side. That is a matter of State law alone. The Fourteenth
Amendment no more forbids double taxation than it does
doubling the amount of the tax ; short of confiscation or pro
ceedings unconstitutional on other grounds .... We are of
opinion that it also is within the power of a State, so far as
the Constitution of the United States is concerned, to tax its
own corporations in respect of the stock held by them in other
domestic corporations, although unincorporated stockholders
are exempt. A State may have a policy in taxation. . . .If the
State of Arkansas wished to discourage but not to forbid the
holding of stock in one corporation by another and sought to
attain the result by this tax, or if it simply saw fit to make
corporations pay for the privilege, there would be nothing in
the Constitution to hinder. A discrimination between corpor
ations and individuals with regard to a tax like this cannot be
pronounced arbitrary, although we may not know the precise
ground of policy that led the State to insert the distinction in
the law.
The same is true with regard to confining the recovery of
back taxes to those due from corporations. It is to be pre
sumed, until the contrary appears, that there were reasons for
more strenuous efforts to collect admitted dues from corpora
tions than in other cases, and we cannot pronounce it an un
lawful policy on the part of the State."
The double taxation referred to was predicated on the fact that
the corporation whose stock was taxed to corporate stockholders was
itself taxed on all that gave the stock value.
Of four complaints against special assessments, only one got any
balm. Branson v. Bush20 raised two issues. A railroad insisted that
it was denied the equal protection of the laws because the valuation
"251 U. S. 182, 4o Sup. Ct. 113 (1919).
128
MICHIGAN LAW REVIEW
of its property for the assessment of a special tax included franchise

value. Inasmuch as the statute excluded the value of the franchise
to be a corporation, the court, with the exception of Mr. Justice McReynolds, were satisfied that the valuation was confined to that of
the real estate estimated by considering the use to which it was put
as an integral link in a larger unit, thus applying to special assess
ments the rule long prevailing as to general property taxation.*1
The road also insisted that it was not benefited by the improved high
way for which it was taxed, and the Circuit Court of Appeals had
agreed that the evidence failed to show any such benefit. Mr.
Justice Clarke recognized that the former announcement of the Su
preme Court that the determination of the legislature as to the area
benefited is conclusive had since been subjected to "the qualification,
which was before implied, that the legislative determination can be
assailed under the Fourteenth Amendment only where the legislative
action is 'arbitrary, wholly unwarranted', 'a flagrant abuse and by
reason of its arbitrary character a confiscation of particular prop
erty'." The absence of any such flagrant abuse in the present case
was predicated not only on the specific testimony but on "the obvious
fact that anything that develops the territory which a railroad serves
n The District Court had "permanently enjoined the tax to the extent
that it was imposed on personal propertythe rolling stock and the materials
of the company." As to the franchise value which had been included, the
court pointed out that the only basis on which to assume that this had been
assessed was the presumption that the tax commission had followed the
statute and "considered" the franchises. After remarking that this would be
"an unusually meagre basis surely for invalidating a tax of the familiar char
acter of this before us", Mr. Justice Clarke continues :
"If, however, the distinction sometimes taken between the 'essential prop
erties of corporate existence' and the franchises of a corporation * * * be
considered substantial enough to be of practical value, and if it be assumed
that the distinction was applied by the state commission in making the assess
ment here involved, this would result, not in adding personal property value
to the value of the real estate of the company, but simply in determining what
the value of the real property wasits right of way, tracks and buildings
having regard to the use which it made of it as an instrumentality for earning
money in the conduct of railroad operations. This at most is no more than
giving to the real property a value greater as part of a railroad unit and a
going concern than it would have if considered only as a quantity of land,
buildings and tracks."
For a note on a case holding that pipe lines are personal property and not
subject to a special assessment, see 2o Colum. L. Rev. 7o3.
CONSTITUTIONAL LAW
129
must necessarily be of benefit to it, and that no agency for such de

velopment equals that of good roads."22
A like rebuff met the similar contention in Goldsmith v. Prendergast Construction Co. 23 that a sewer assessment was invalid because
some of the property benefited was excluded from the area charged.
The state court had conceded that some of the land in the unburden
ed region might be drained into the sewer, but it had not thought this
sufficient to justify judicial interference with the exercise of the dis
cretion vested in the municipal authorities. "Much less," says Mr.
Justice Day, "do such findings afford reason for this court in the
exercise of its revisory power under the federal Constitution to re
verse the action of the state courts, which fully considered the facts,
and refused to invalidate the assessment."
Two complaints were directed against the procedure for appor
tioning benefits as the basis of special assessments. The plaintiff in
Farncomb v. Denver 2* alleged that the hearing proffered by the
statute was before a board which had power only to recommend
changes in the assessment and that therefore he was denied due pro
cess of law. The state court, however, had construed the statute dif
ferently and held that the city council could not only hear and recom
mend but could also determine. This construction was of course bind
ing on the Supreme Court. As the plaintiff had not availed himself of
the administrative opportunity open to him, he was denied judicial
relief. In Oklahoma Ry. Co. v. Severns Paving Co.25 there was
some doubt whether the decree of the court below definitely assured
a hearing on a re-assessment after the first assessment had been invalidly laid against the owner rather than against the property, and
the decree was therefore modified to make certain the right to a hear
ing.29
"For a note on an Illinois decision holding that a special assessment for
paving could not be levied on lots which were part of a railroad right of way,
see 29 Yale L. J. 68o.
"252 U. S. 12, 4o Sup. Ct. 273 (192o).
"252 U. S. 7, 4o Sup. Ct. 271 (192o).
"251 U. S. 1o4, 4o Sup. Ct. 73 (1919).
"For a note on taxing stockholders of a national bank without notice
to them, see 4 M1nn. L. Rev. 3o5.
For a discussion of the question whether the proceeds from the sale of
property originally paid for by special assessments must be returned to those
previously assessed, see 33 Harv. I,. Rev. 481.
MICHIGAN LAW REVIEW

Objections to the procedure for collecting the Oklahoma and
New York income taxes on non-residents were held to be without
sufficient foundation. In Travis v. Yale & Towne Mfg. Co." a Con
necticut corporation, having its main place of business in Connecti
cut, but also carrying on business in New York, thought that New
York ought not to be allowed to require it to adjust its system of
accounting and paying salaries and wages to the extent required to
deduct and withhold the New York tax. Mr. Justice Pitney answer
ed that the withholding provisions applied only to salaries earned in
New York, that the company might pay such salaries in New York,
and that "the fact that it may be more convenient to pay them in
Connecticut is not sufficient to deprive the state of New York of the
right to impose such a regulation." The allegation of an unconstitu
tional discrimination against citizens of other states because the
withholding provisions applied only to non-residents was met by
saying that this "does not in any wise increase the burden of the tax
on non-residents, but merely recognizes the fact that as to them the
state imposes no personal liability, and hence adopts a convenient sub
stitute for it."
The objection levelled against the procedure for collecting the
Oklahoma tax sustained in Shaffer v. Carter2* related to the provi
sion imposing a lien upon all the delinquent's property within the
state, real and personal. Mr. Justice Pitney said that the objection
reduces itself to this :
"that the state is without power to create a lien upon any
property of a non-resident for income taxes except the very
property from which the income proceeded ; or, putting it in
another way, that a lien for an income tax may not be imposed
upon a non-resident's unproductive property, nor upon any
particular productive property beyond the amount of the tax
upon the income that has proceeded from it."
He then stated that the facts of the case do not raise the question,
as it appears that the whole of the complainant's property in Okla
homa was used to produce oil and that "his entire business in that
" Note 16, supra.
"Note IS, supra.
CONSTITUTIONAL LAW
and other states was managed as one business, and his entire net in
come in the state for the year 1916 was derived from that business."
The opinion then proceeds :
"Laying aside the probability that from time to time there
may have been changes arising from purchases, new leases,
sales, and expirations (none of which, however, is set forth in
the bill), it is evident that the lien will rest upon the same
property interests which were the source of the income and on
which the tax is imposed. The entire jurisdiction of the state
over appellant's property and business and the income that
he derived from themthe only jurisdiction that it has sought
to assertis a jurisdiction in rem: and we are clear that the
state acted within its lawful power in treating his property in
terests and business as having both unity and continuity. Its
purpose to impose income taxes was declared in its own con
stitution, and the precise nature of the tax and the measures
to be taken for enforcing it were plainly set forth in the act of
1915 ; and plaintiff having thereafter proceeded, with notice
of this law, to manage the property and conduct the business
out of which proceeded the income now taxed, the state did
not exceed its power or authority in treating his property in
terests and his business as a single entity, and enforcing pay
ment of the tax by the imposition of a lien, to be followed by
execution or other appropriate process, upon all property em
ployed in the business."
This leaves unsettled a number of interesting questions certain
to arise in the near future. Suppose the sources of income within
the state are varied and unrelated to each other, may the whole tax
be collected from any one piece of property? Suppose there is no
property within the state, may any single payer of income to a non
resident be required to withhold enough to ensure the tax on income
paid by others as well ? May a tax on income earned within the state
be collected by garnisheeing debtors who owe the non-resident capital
rather than income ? Obviously it will be grievously vexatious to re
quire withholding at the source of the tax on every single dollar of
income going to a non-resident, as the state under the Yale & Town
case may lawfully do. Yet if this is not done, non-residents are apt
MICHIGAN LAW REVIEW

to escape paying admitted dues unless some or all of the questions
just raised are answered in the affirmative.2"
In two of the cases already considered there was dispute as to
the propriety of the proceedings chosen by the taxpayer to contest
the validity of the tax. Both involved injunctions against state taxes
sought from a federal district court, and in both the issue was wheth
er the complainant had an adequate remedy at law. The contention
that the suit was in effect one against the state was not made. In
Wallace v. Hines30 the tax was made a lien on all the property of the
railroad, thus putting a cloud upon the title, and delay in paying the
tax was visited with considerable penalties. The only remedy at law
suggested to deprive equity of the jurisdiction it would otherwise
have was that alleged by the state to be offered by a statute saying
that "an action respecting the title to property, or arising upon con
tract may be brought in the district court against the State the same
as against a private person." In sustaining the injunction, Mr.
Justice Holmes said :
"This case does not arise upon contract except in the purely
artificial sense that some claims for money alleged to have
been obtained wrongfully might have been enforced at com
mon law by an action of assumpsit. Nothing could be more
remote from an actual contract than the wrongful extortion
of money by threats, and we ought not to leave the plaintiffs
to a speculation upon what the State Court might say if an
action at law were brought."
In Shaffer v. Carter,31 the state procedure for correcting and ad
justing tax returns, as interpreted by the state court, was said to fall
"short of indicatingto say nothing of plainly showing" that it
"would afford an adequate remedy to a party contending that the
income tax law itself was repugnant to the Constitution of the United
States." But the decision that it was proper to resort to equity for
relief was placed more definitely on this narrower ground :
"For removal of a cloud upon title caused by an invalid lien
imposed by a tax valid in itself, there appears to be no legal
" See Walter N. Seligsberg, "Collection of State Income Taxes from Non
residents", 5 Bull. Nat. Tax Ass'n. 244.
" Note 9, supra.
n Note 15, supra.
CONSTITUTIONAL LAW
133
remedy. Hence, on this ground at least, resort was properly

had to equity for relief ; and since a court of equity does not
'do justice by halves,' and will prevent, if possible, a multi
plicity of suits, the jurisdiction extends to the disposition of
all questions raised by the bill."
In this case the injunction ultimately failed because both the tax
and the procedure for its collection were bound to be valid.
In United States v. Osage County,32 which allowed the federal
government to sue in the federal court to protect certain Indians
from wrongful state taxation, "the existence of power in the
United States to sue" was said to dispose "of the proposition that be
cause of remedies afforded to individuals under the state law the
authority of a court of equity could not be invoked by the United
States." Reference was made to the great number of Indians in
volved and the prevention of multiplicity of suits. Ward v. Love
County3' reversed the decision of the Oklahoma court that taxes
collected frcm Indians had been paid by them voluntarily and
so could not be recovered back by suit. It was recognized that in
general the question whether the taxes had been collected under
compulsion after adequate protest is a non- federal one on which the
determination of the state court is conclusive. But Mr. Justice
Van Devanter pointed out that, if non-federal grounds plainly unten
able may be thus successfully put forward in state courts, the power
of the United States courts to review the federal question may be
defeated. He found that the decision of the state court "that the
taxes were paid voluntarily was without any fair or substantial sup
port." The fact that the county might have paid over to the state or
municipal bodies some of the taxes thus wrongfully extorted was
held not to save it from making a refund to the Indians. On this
point the opinion declared :
"As the payment was not voluntary, but made under com
pulsion, no statutory authority was essential to enable or re
quire the county to refund the money. It is a well-settled rule
that 'money got through imposition' may be recovered back ;
"251 U. S. 128, 4o Sup. Ct. 1oo (1919), 19 M1ch. L. Rev. 17, note 24.
"253 U. S. 17, 4o Sup. Ct 419 (192o). To same effect, Broadwell v.
Carter County, 253 U. S. 25, 4o Sup. Ct. 422 (192o).
134
MICHIGAN LAW REVIEW

and, as this court has said on several occasions, 'the obliga
tion to do justice rests upon all persons, natural and artifi
cial, and if a county obtains the money or property of others
without authority, the law, independent of any statute, will
compel restitution or compensation'". .. .To say that the
county could collect these unlawful taxes by coercive means,
and not incur any obligation to pay them back is nothing short
of saying that it could take or appropriate the property of
these Indian allottees arbitrarily and without due process of
law. Of course this would be in contravention of the Four
teenth Amendment, which binds the county as an agency of
the state."3*
In the other tax cases that have been considered, the taxing auth
ority did not contest the propriety of the procedure by which the
validity of the tax was questioned. Four involved injunctions against
state taxes ; two in federal courts35 and two in state courts.38 Four
were actions brought against the taxpayer,87 and five were suits
brought by the taxpayer to recover back taxes paid under protest,83
One was a certiorari proceeding to review an assessment, begun in
a state court and taken to the United States Supreme Court on writ
of error.30
A far-reaching issue of what is a requisite public purpose in ex
ercising the taxing power came before the court in Green v. Frasier*9
** On the question of what constitutes payment under duress, see 29
Yale L. J. 574" Branson v. Bush, note 2o, supra; Askren v. Continental Oil Co., 252
U. S. 355, 40 S-.ip. Ct. 355 (192o), 19 M1ch. L. Rev. 32, note 57.
" Farncomb v. Denver, note 24, supra; Wagner v. Covington, 251 U. S.
95, 4o Sup. Ct 93 (1919). 19 M1ch. L. Rev. 31, note 56.
" Cream of Wheat Co. v. Grand Forks County, note 7, supra; Ft. Smith
Lumber Co. v. Arkansas, note 19, supra; Goldsmith v. Prendergast Construc
tion Co., note 23, supra; Oklahoma Ry. Co. v. Severns, note 25, supra.
0* Evans v. Gore, note 2, supra; Eisner v. Macomber, note 4, supra;
Maguire v. Trefry, note 6, supra; F. S. Royster Guano Co. v. Virginia, note
18, supra; Wagner v. Covington, 251 U. S. 95, 4o Sup. Ct. 93 ( 1919) , 19 M1ch.
L. Rev. 31, note 56. This last ease included also a suit to enjoin the pay
ment of the tax.
" Maxwell v. Bugbee, note 13, supra. It should be noted that New
Jersey permits a broader use of certiorari than do most jurisdictions.
"253 U. S.
, 4o Sup. Ct. 499 (192o). For notes on cases prior to the
Supreme Court decision, see 4 M1nn. L. Rev. 65, and 29 Yale L. J. 933- For
CONSTITUTIONAL LAW
I35
in which the program of the Non-Partisan League in North Dakota

was questioned. The state proposed to raise by taxation and bonds
money to inaugurate a state bank, state warehouses, elevators and
flour mills, and a state home building association which was to build,
buy, sell and lease homes for the citizens of the state. Taxpayers
sought an injunction in the state court and lost. The denial of the
injunction was affirmed by the Supreme Court, Mr. Justice Day
declaring :
"Under the peculiar conditions existing in North Dakota,
which are emphasized in the opinion of its highest court, if
the state sees fit to enter upon such enterprises as are here
involved, with the sanction of its Constitution, its Legisla
ture and its people, we are not prepared to say that it is with
in the authority of this court, in enforcing the observance of
the Fourteenth Amendment, to set aside such actions by judi
cial decision."
The "peculiar conditions" referred to included the facts that
North Dakota is predominantly agricultural, that the existing system
of transporting and marketing grain "prevents the realization of what
are deemed just prices," and that a large proportion of the popula
tion are tenants moving about from place to place and that an im
proved opportunity to secure and maintain homes would promote the
general welfare. In the course of the opinion Mr. Justice Day said
that the court had always declined to give a precise meaning to "due
process of law," preferring "to leave its scope to judicial decision
when cases from time to time arise." Though it has come to be rec
ognized that due process prevents the states from imposing taxes for
a merely private purpose, "courts, as a rule, have attempted no judi
cial definition of a 'public' and distinguished from a'private' purpose,
but have left each case to be determined by its own peculiar circum
stances." Questions of policy are not for the court, nor is it con
cerned with the wisdom of the legislation. It is pointed out that the
public conduct of these business enterprises stands on a different
footing from public gifts to privately conducted businesses. The
articles inspired by the North Dakota program and touching the question of
taxation, see Andrew A. Bruce, "The Tyranny of the Taxing Power", 18
M1ch. L. Rev. 5o8, and "State Socialism and the School Land Grants", 33
Harv. L. Rev. 4o1.
136
MICHIGAN LAW REVIEW
precise question before the court was found to be a novel one, but
the case was thought to come within the principle of an earlier deci
sion41 which found a sufficient public purpose in a municipal coal
and wood yard. The decision was unanimous. The North Dakota
experiment is thought by some to have a strong flavor of state so
cialism. If they are right, the federal Constitution appears to allow
more room for socialistic experiments than a number of its most
fervent eulogists would lead us to infer.42
IV.
Pol1ce Power
The classification of cases on police power becomes increasingly

difficult as we get farther and farther away from the conception of
the police power as confined to the rudimentary requirements of
health, morals and safety. Classification on the basis of the objects
for which the power is exercised is hardly feasible when the same
statute manifestly has several objects. Any grouping of cases un
der the head of "general welfare" would carry a confession of in
ability to classify. If, however, we regard the relationships, inter
ests and subject matters dealt with, some fairly clear lines of division
emerge. True, these lines cross each other so that the same statute
may be put into more than one section if any one insists on being
nice about it. Yet "food and drink", "occupations and professions,"
and "physical conditions" make convenient separate heads, even
though they embrace statutes which also fall readily under the more
general heads of "commercial intercourse," "industrial relations" or
"public utilities." It seems best to group under the latter head all
cases dealing with business which partakes of the nature of a publicservice enterprise, since the police power over such business is of a
special kind. This grouping, however, must not be taken as imply
ing that a business can not have one aspect of a public utility with
out having all. Subjection to price fixing does not necessarily carry
with it a duty to serve all. The regulatory power develops in a
creep-mouse, crawl-mouse way, and each case is confined to its spe
cial facts like all cases on police power.
"Jones v. Portland, 245 U. S. 217, 38 Sup. Ct. 112 (1917).
" For notes on the constitutionality of state taxation to provide funds
for bonuses or bounties to soldiers in the United States forces, see 33 Harv.
L. Rev. 846, 871. 18 M1ch. L. Rev. 535, 699, 4 M1nn. L. Rev. 233, and 29
Yale L. J. 69o.
CONSTITUTIONAL LAW
137
Of the eighteen police power cases decided during the last term,
twelve have to do with requirements on those whose business has
some or all of the elements of a public utility. In Producers' Trans
portation Co. v. Railroad Commission*3 the complainant unsuccess
fully resisted inclusion in this class. A pipe-line company sought to
justify its resistance of the orders of the railroad commission on the
ground that "it was constructed solely to carry crude oil for particu
lar producers from their wells to the seacoast under strictly private
contracts, and that there had been no carrying for others, nor any
devotion of the pipe line to a public use." Mr. Justice Van Devanter
conceded that, if the facts were as alleged, the enterprise could not
be converted by legislative fiat or administrative order into a public
utility. But he sustained the state court and held the company al
ready a common carrier, in view of the facts that it readily admitted
new producers and excluded none from the agency agreements it de
vised, that its charter authorized it to carry on a general transporting
business, and that it had exercised the power of eminent domain
which it secured only by asserting that it was engaged in transporting
oil by pipe line "as a common carrier for hire" and that the right of
way sought was "for a public use."**
It is familiar that the initiation of a public-utility enterprise does
not necessarily carry with it an obligation to continue indefinitely.
This finds illustration in Brooks-Scanlon Co. v. Railroad Commis
sion*1 in which a company was allowed to abandon the operation of
a narrow-gauge railway which could not be run remuneratively.
The state court had sustained the order of the commission forbid
ding the abandonment, on the ground that the railroad corporation
was identical with a lumber corporation and that the entire business
of the concern was remunerative. But Mr. Justice Holmes declared
that "a carrier cannot be compelled to carry on even a branch of
business at a loss, much less the whole business of carriage." After
noting qualifications on the principle where obligations are im
posed by charter, he continued:
"But that special rule is far from throwing any doubt upon
"251 U. S. 228, 4o Sup. Ct. 131 (192o). See 18 M1ch. L. Rev. 8o4.
"For a note on "what constitutes a public service", see 26 W. Va. L. Q.
14o. See also John B. Cheadle, "Governmental Control of Business", 2o
Coium. L. Rev. 438, 55o.
"251 U. S. 396, 4o Sup. Ct. 183 (192o).
13
MICHIGAN LAW REVIEW

a general principle too well established to need further argu
ment here. The plaintiff may be making money from its saw
mill and lumber business, but it no more can be compelled to
spend that than it can be compelled to spend any other money
to maintain a railroad for the benefit of others who do not
care to pay for it. If the plaintiff be taken to have granted
to the public an interest in the use of the railroad, it may
withdraw its grant by discontinuing the use when that use can
be kept up only at a loss. Mut1ny. Illinois, 94 U. S. 113, 126.
The principle is illustrated by the many cases in which the
constitutionality of a rate is shown to depend upon whether
it yields to the parties concerned a fair return."
The state court had mentioned also that the commission had order
ed the company to submit a new schedule of transportation which
might be operated at a profit, but this was dismissed by the Su
preme Court as a mere makeshift and the language of hope un
supported by any facts.
Of six cases dealing with the imposition of duties on common
carriers, two related to the kind and quality of service. Great North
ern Ry. Co. v. Cahill" followed an earlier decision in holding that it
is no part of the duty of a railroad to furnish cattle scales along its
right of way, even though the public might be greatly benefited
thereby. There is a faint hint in the opinion that there might be cir
cumstances which would raise a question as to some qualification of
the doctrine, but the hint seems too faint to cause any fright to car
riers. Sullivan v. Shreveport" related to the mode of performing a
conceded duty. It sanctions an ordinance requiring every street car
to be operated by a conductor and motorman, notwithstanding con
siderable evidence in support of the safety of a new type of one-man
car. There was other evidence of the possibility of danger and the
certainty of inconvenience from this type of car. Mr. Justice Clarke
observes that the operation of cars presents special problems in each
community and that the determination of the local authorities should
be accepted except in clear cases of arbitrariness.
Two cases required street railroads to help take care of the streets
which they use. Milwaukee Electric Ry. & Light Co. v. Wisconsin**
253 U. S.
, 4o Sup. Ct. 457 (192o).
"251 U. S. 169, 4o Sup. Ct. 1o2 (1919).
"252 U. S. 1oo, 4o Sup. Ct. 3o6 (192o).
CONSTITUTIONAL LAW
139
found nothing "inherently arbitrary or unreasonable" in enforcing

a general undefined duty to repave a specified portion of the street
by requiring a pavement of asphalt upon a concrete foundation when
the rest of the street had been so paved by the city. Pacific Gas &
Electric Co. v. Police Court*9 held that a requirement on a street
railway to sprinkle the streets for a sufficient distance to prevent dust
from flying from the operation of the cars is "genetically embraced
by the police power" and that the power so possessed was "not unrea
sonably exerted" so as to offend the requirements of due process.
Two cases involved the location of the company's poles and
wires. Hardin-Wyandot Lighting Co. v. Upper Sandusky99 affirmed
a state decree enjoining the restoration of poles and wires previously
taken down and forbidding new additional construction without the
consent of the city, which consent had been made a prerequisite by
the statute under which the company had obtained its franchise.
Though the decision is confined to restoration and new construction,
it does not seem to rest wholly on the reservation in the statute un
der which the franchise was derived. For Mr. Justice Clarke de
clares :
"We cannot doubt that the danger to life and property from
wires carrying high tension electric current through village
streets is so great that the subject is a proper one for regula
tion by the exercise of the police power and very certainly
the authorities of the municipality immediately interested in
the safety and welfare of its citizens are a proper agency to
have charge of such regulation."
But this control must be exercised for legitimate police objects
and not for the private proprietary advantage of the municipality, as
appears from Los Angeles v. Los Angeles Gas & Electric Corpora
tion.01 Here the object of the city in ordering the removal and re
location of poles and other facilities belonging to a lighting company
was found to be, not the protection of health and safety, but the dis
placement of the existing system with one to be constructed by the
city. Over the dissent of Justices Pitney and Clarke, this was held
a taking without due process of the property rights acquired under
the franchise. The city's contentions were said to be based upon a
"251 U. S. 22, 4o Sup. Ct. 79 (1919). See 29 Yale L. J. 578.
"251 U. S. 173, 4o Sup. Ct. 1o4 (1919).
"251 U S. 32, 4o Sup. Ct. 76 (1919). See 5 Va. L. RBC . j. 797-
14o
MICHIGAN LAW REVIEW
confusion of its governmental powers of police with its field of action

in a proprietary or quasi-private capacity. Mr. Justice McKenna
declares :
"It will be observed that we are not concerned with the
duty of the corporation operating a public utility to yield un
compensated obedience to a police measure adopted for the
protection of the public, but with a proposed uncompensated
taking or disturbance of what belongs to one lighting system
in order to make way for another.
And this the Four
teenth Amendment forbids. What the grant was at its in
ception it remained and was not subject to be displaced by
some other system, even that of the city, without compensa
tion to the corporation for the rights appropriated."
Of five cases relating to rate regulation, only one was directly
concerned with the reasonableness of the particular rates fixed. This
is Groesbeck v. Duluth S. S. & A. Ry. Co}2 which rejected several
special complaints adduced by the regulating authority against the
calculations by which the district court had reached the conclusion
that a two-cent fare would not yield the requisite fair return on fair
value. The state wished to exclude the results of running sleeping
and parlor cars, of operating a branch line used almost wholly for
interstate commerce and a parallel line bought from a competitor
and used almost wholly for freight traffic, and of running trains on
a connecting line over which the complaining company had acquired
traffic rights. As to the sleeping and parlor cars, Mr. Justice Brandeis said that the charges are substantially uniform throughout the
country and that it would be practically impossible and obviously
unwise for the road to abandon the service or to increase the charges
to cover the cost of the particular service on its line. The other traf
fic was over lines on which passengers under the statute were entitled
to the two-cent fare, and the court thought it correct to treat all the
lines as one, so that the more profitable parts of the system would
carry those less profitable. In sustaining the apportionment of ex
penses between freight and passenger services when the expenses
were common to both, Mr. Justice Brandeis recognized that no satis
factory formula had thus far been worked out and said that "for the
present, at least, what formula the trial court should adopt presents
"25o U. S. 6o7, 4o Sup. Ct. 38 (1919).
CONSTITUTIONAL LAW
M1
a question, not at law, but of fact ; and we are clearly unable to say
that the lower court erred in adopting the method there pursued."
What that method was he did not specify.83
The remaining cases on rate regulation deal with the procedure
for fixing the rates and for contesting their reasonableness before the
courts. The plaintiff in 5"/. Louis, I. M. & S. Ry. Co. v. Williams**
sought shelter under the rule that the imposition of severe penal
ties as a means of enforcing a rate is in contravention of due pro
cess of law where no adequate opportunity is afforded the carrier
for safely testing before a judicial tribunal the validity of the rate
before liability for the penalties attaches. It failed, however, be
cause the court was aware that it might have brought a bill in equity
against the railroad commission and have secured a suspension of
the penalty provision during the pendency of the proceedings. The
remaining question in the case was whether the statutory penalty of
from $5o to $3oo and a reasonable attorney's fee for each exaction
in excess of the rate prescribed was so unreasonable as to offend
against the requirements of due process. Mr. Justice Van Devanter,
speaking for all the court except Mr. Justice McReynolds, observed
that the penalty, though large when contrasted with the overcharge
possible in any case, might still not unreasonably be justified in view
of the numberless opportunities of violating the statute and the need
for securing uniform adherence to it. The fact that the penalty
went to the aggrieved passenger and might be disproportionate to
his loss was held to be immaterial.50
For notes on "fair value" see 2o Colum. L. Rev. 586, and 15 I1x. L. Rev.
45. See also Gerard C. Henderson, "Railway Valuation and the Courts", 33
Harv. L. Rev. 9o2, 1o31. In 18 M1ch. L. Rev. 774, is a note entitled "Public
Utility ValuationCost-of-Production Theory and the World War." This
discusses Lincoln Gas & Electric Co. v. Lincoln, 25o U. S. 256, 39 Sup. Ct.
454 do")), and United States v. Interstate Commerce Commission, 252
U. S. 178, 4o Sup. Ct. 187 (102o), 19 M1ch. L. Rev. 26, note 46. Issues
between state and local authorities in respect to fixing rates are considered
in 5 Cornell L. Q. 354. and 15 IIl. L. Rev. 1oo. References to notes on prior
contracts fixing rates with respect to their effect on the desires of public utili
ties for an increase or the desires of local authorities to prevent central
authorities from allowing an increase of rates will be given in the section
daling with "Retroactive Civil Legislation."
"251 U. S. 63, 4o Sup. Ct. 71 (1919).
For other questions of procedure and of judicial interference, see 8
Cal1f. L. Rev. 18o, 33 Harv. L. Rev. 1o7, and 68 U. Pa. L. Rev. 287.
MICHIGAN LAW REVIEW
I42
The complainant in Ohio Valley Water Co. v. Ben Avon Borough

was more fortunate. Under the procedure offered by the state stat
ute the company had appealed from the commission to the superior
court of the state and had the order of the commission set aside and
the appraisal of its property raised. The state supreme court re
versed the court below, holding that there was competent evidence
tending to support the commission's conclusion and that no abuse of
discretion appeared. This action was thought by a majority of the
United States Supreme Court to be based on an interpretation of the
state statute which withheld from the court power to determine the
quesion of confiscation according to its independent judgment when
the action of the commission is considered on appeal. Such limita
tion on the reviewing power of the court was held to make the pro
cedure wanting in the requisites of due process. The court was un
able to satisfy itself that there was any adequate alternative method
of testing the validity of the rates by proceedings in equity and so
sent the case back to the state court, declaring that the plaintiff "has
not yet had proper opportunity for an adequate judicial hearing as
to confiscation ; and unless such an opportunity is now available, and
can be definitely indicated by the court below in the exercise of its
power finally to construe the laws of the state including of course
section 31 [the section relating to proceedings in equity], the chal
lenged order is invalid."
For the minority, consisting of himself and Justice Holmes and
Clarke, Mr. Justice Brandeis urged that the proceedings in equity
were adequate and that the order was not invalid for absence of op
portunity for full judicial review. He insisted therefore that the
order must be affirmed "unless, as contended, the claim of confisca
tion compels this court to decide, upon the weight of the evidence,"
whether or not the company's "property has been undervalued, or
unless some error of law is shown." On this question, Mr. Justice
Brandeis applied the general rule that on writs of error from a state
court the Supreme Court must take the facts as found below. As
tf1e only disputed question was the value of the property, he insisted
that the case did not come within the exception that the Supreme
Court may "upon writ of error to a state court 'examine the entire
record, including the evidence, to determine whether what purports
"253 U. S.
, 4o Sup. Ct. 527 (192o).
CONSTITUTIONAL LAW
143
to be a finding* upon questions of fact is 'so involved with and de

pendent upon questions of federal law as to be really a decision' of
the latter." Even in such case, he added, the Supreme Court must
be actuated by the purpose, not to pass upon the relative weight of
conflicting evidence and to substitute its judgment thereon for that
of the court below, but "to ascertain whether a finding was unsup
ported by evidence, or whether evidence was properly admitted or
excluded, or whether in some other way a ruling was involved which
is within the appellate jurisdiction" of the Supreme Court. From
this it would appear that what the Fourteenth Amendment requires
by way of procedure is an opportunity for a judicial hearing on
questions of fact in some court and not necessarily in some federal
court or in any appellate tribunal. Whether the majority would
agree with this is not certain, since their disposition of the case did
not require them to affirm or to contradict it. The problem is one
on which the law is still soft because of uncertainty as to how far
the recognized exceptions cut in to the recognized general rule.
Inadequate procedure was found also in Oklahoma Operating Co.
v. Love" and in Oklahoma Gin Co. v. Oklahoma in which injunc
tions were issued against orders of the state railroad commission
enforcing prescribed rates and penalizing disobedience. Under the
statute in force when the proceedings were instituted the complain
ants had no opportunity to contest the reasonableness of the rates
before a judicial body except on appeal from proceedings before
the commission for contempt. The penalties if the appeal were un
successful might be $5oo for each overcharge and $5oo additional
for each day's continuance of refusal to charge not more than the
rates fixed. In the words of Mr. Justice Brandeis, they "are such
as might well deter even the boldest and most confident." Before
these cases reached the Supreme Court, Oklahoma had seen the error
of its ways and had provided for direct appeal to the Supreme Court
from the order of the commission. But as the plaintiff was rightly
in the federal courts, the suit was ordered to proceed for a determi
nation of the question whether the rates were confiscatory. If such
is the conclusion of the district court, it is to enjoin their enforce
ment in any way. If it finds them not confiscatory, it is still to en"252 U. S. 331, 4o Sup. Ct. 338 (192o). See 18 M1ch. L. Rev. 8o4.
"252 U. S. 339. 4o Sup. Ct. 341 (192o).
144
MICHIGAN LAW REVIEW
join the enforcement of the penalties accrued pendente lite, provided

it finds that the plaintiff had reasonable grounds to contest the rates
as confiscatory.
The statute involved in these two cases was one defining as a pub
lic business subject to price fixing any business which by reason of
its nature, extent, or the exercise of a virtual monopoly therein, is
such that the public must use the same or its services. One com
plainant ran a laundry and the other was ginning cotton, having
combined with competitors to raise prices. The laundry concern
had urged before the commission that it was not a monopoly within
the section of the statute in question and that the section was void.
This seems to be an assertion of an immunity from price fixing;
but on the most interesting question whether a laundry can be sub
jected to rate regulation like an elevator or a railroad, the Supreme
Court says not a word. It declared, however, that the commission
might proceed to investigate the plaintiff's rates and practices, "so
long as its findings and conclusions are subjected to the review of the
District Court herein." It can hardly be credited that all the mem
bers of the court would consent to the implication that the mere fact
that the public must use a laundry makes its charges constitutionally
subject to regulation by a commission. Yet the handling of the case
in the opinion of Mr. Justice Brandeis is such that it would not be
surprising if some of the judges later adduce it as a precedent in favor
of the subjection to price-fixing of any business so situated that for
a time it is relieved from the competition that keeps its charges rea
sonably close to what would be enough to attract competitors into
the enterprise if the way were open to them."
Direct or indirect regulations of commercial intercourse were
approved in four cases. In Munday v. Wisconsin Trust Co.*" the
power to impose conditions on the doing of business by foreign cor
porations not engaged in interstate commerce was affirmed and ap
plied to a provision invalidating deeds of land within the state to
foreign corporations not admitted to do business. The fact that the
deed was executed and delivered in another state was said to make
no difference, since the court had long ago declared that "the title
" For discussions of the extension of price fixing see references in note
44, supra, and notes in 33 Harv. L. Rev. 838, 861.
"252 U. S. 499. 4o Sup. Ct. 365 (192o).
CONSTITUTIONAL LAW
to land can be acquired and lost only in the manner prescribed by the
law of the place where such land is situate." Dunbar v. City of New
York91 found no offence against due process in giving the city a lien
on the premises to which water is furnished, even though the meter
is installed at the request of the tenant rather than of the owner. A
statute forbidding the personal solicitation of employment to "prose
cute, defend, present or collect" claims was sustained in McCloskey
v. Tobin.*2 Mr. Justice Brandeis pointed out that prohibition of
solicitation did not prohibit the business but merely regulated it. He
added that "the evil against which the regulation is directed is one
from which the English law has long sought to protect the com
munity through proceedings for barratry and champerty" and that
"regulation which aims to bring the conduct of the business into
harmony with ethical practice of the legal profession, to which it is
necessarily related, is obviously reasonable."68
The remaining case belongs under the head of industrial rela
tions. This is New York Central R. Co. v. Bianc** which sustained
the provision in the New York Workmen's Compensation Law al
lowing the commission to award damages for permanent facial dis
figurement. Mr. Justice Pitney thought it most likely that any seri
ous disfigurement would impair earning power, irrespective of its
effect on mere capacity to work. But the absence of any finding of
such impairment in the case before him moved him to declare that
impairment of earning capacity is not essential to the constitu
tionality of an award. He added that the state was at entire liberty
to choose whether the award for disfigurement should be paid in a
single sum or in instalments and whether it should be made in com
bination with the compensation for inability to work computed with
reference to loss of earning power or independently thereof. Under
"251 U. S. 516, 4o Sup. Ct. 25o (192o).
"252 U. S. 1o7, 4o Sup. Ct. 3o6 (192o). See 6 Va. L. Reg. n. s. 213,
and 29 Yale L. J. 68o.
" See James W. Simonton, "The Validity of Special Legislation Granting
Admission to a Profession", 26 W. Va. L. Q. 1o2. The attorney's lien law
of Pennsylvania is considered in 68 U. Pa. L. Rev. 277; a discriminatory
exemption law, in 19 Colum. L. Rev. 5o2; a law forbidding the refilling of
marked bottles, in 18 M1ch. L. Rev. 546.
"25o U. S. 596, 4o Sup. Ct. 45 (1919). See 33 Harv. L. Rev. 473, 18
M1ch. L. Rev. 235, and 29 Yale L. J. 581.
146
MICHIGAN LAW REVIEW
the statute the award might be such sum as the commission deems
proper, up to $3,5oo. Mr. Justice McReynolds dissented but wrote
no opinion. His dissent is doubtless dependent on the fact that the
statute imposes liability on the employer irrespective of negligence,
as there could be no question about damages for such injuries when
the person mulcted is at fault.88
This is an unusually small grist of police power cases for the
Supreme Court to grind out in a term. Normally it considers more
police power questions on a wider variety of subjects. It may be
useful to list those subjects, if only to have pegs on which to hang
footnotes to discussions in law reviews on decisions in other courts.
One is the regulation of "rights of action," but this is more conveni
ently dealt with in a later section on Jurisdiction and Procedure of
Courts. Another is "occupations and professions" under which
McCloskej r. Tobin** might have been put. A third is "physical
conditions"" which might embrace a number of the cases put under
the head of public utilities. For the rest we have "food and drink,"88
"The Arizona Workmen's Compensation Law, which was declared con
stitutional in Arizona Copper Co. v. Hammer, (Arizona Employers' Liability
Cases), 25o U. S. 4oo, 39 Sup. Ct. 553 (1919), is considered in 2o Colum.
L. Rev. 89, 33 Harv. L. Rev. 86, 18 M1ch. L. Rev. 316, and 29 Yale L. J. 225.
See 68 U. Pa. L. Rev. 363 for a note on a Rhode Island case declaring
unconstitutional a statute requiring theatre proprietors to employ a fire guard
approved by fire commissioners at a compensation provided in the statute.
"* Note 62, supra.
" See O. L. Waller, "Right of State to Regulate the Distribution of Water
Rights", 0o Cfht. L. J. 07- See 2o Colum. L. Rev. 35o for discussion of a
case holding invalid an ordinance confining care of cemetery lots to superin
tendent. See 4 M1nn. L. Rev. 54o for note on case declaring unconstitu
tional an ordinance forbidding the erection of a public garage without the
consent of adjoining landowners. A case holding a public garage to be a
nuisance is discussed in 18 M1ch. L. Rev. 234, and a similar condemnation
of a morgue is treated in 33 Harv. L. Rev. 613.
" See Minor Bronaugh, "Limiting or Prohibiting the Possession of In
toxicating Liquors for Personal Use", 23 Law Notes 67, and Lindsay Rogers,
" 'Life, Liberty, and Liquor' : A Note on the Police Power", 6 Va. L. Rev.
156. Barbour v. Georgia, 249 U. S. 454, 39 Sup. Ct. 316 (1919), sustaining a
statute prohibiting possession of liquor acquired after its enactment is com
mented on in 6 Va. L. Rev. 6o.
CONSTITUTIONAL LAW
'47
"social and moral interests,"*8 and "methods of enforcement.'"'

Any classification of police power questions is necessarily somewhat
arbitrary, but the law of the police power as a whole is so amorphous
that even a poor way of classifying is better than none.71
V.
Em1nent Doma1n
In four of the cases already considered there was complaint that

the unwelcome interferences were takings which required compen
sation. In none of them did the government profess to be exercising
the power of eminent domain. In Hamilton v. Kentucky Distilleries
& Warehouse Co.11 which sustained the War Prohibition Act of
November 21, 1918, Mr. Justice Brandeis said that "there was no
appropriation of the liquor for public purposes." He pointed out
that it had never been necessary to decide whether an absolute prohi
bition of the sale of liquor acquired before the enactment of the pro
hibitory law is proper and that the question did not arise in the
case at bar since the law did not become effective until over seven
months after it was passed. The fact that liquor could not be ad
vantageously sold till well ripened or aged was called a "resulting
inconvenience to the owner attributable to the inherent qualities of
the property itself," which "cannot be regarded as a taking of prop
erty in the constitutional sense." The point came up again in Ruppert v. Caffey which sustained the Volstead Act. The plaintiff
contended that "even if immediate prohibition of the sale of its non" See 33 Harv. I,. Rev, 1o8 for discussion of a state anti-loafing law ; 4
M1nn. L. Rev. 449 on prohibiting foreign languages in public schools;. 33
Harv. L. Rev. 1o8 on denying to aliens privilege of running pool rooms ; 33
Harv. L. Rev. 11o on state law against inciting hostility to the United States;
18 M1ch. L. Rev. 796 on prohibiting display of flag of organization hostile
to our form of government; and 29 Yale L. J. 936 on protection of the
United States flag from desecration.
" See 5 Iowa L. Bun.. 63 for note on power of health board to detain per
sons afflicted with venereal disease, and 6 Va. L. Rev. 583 for discussion of
forfeiture of property of innocent persons used in violation of law.
n For a general article on police power see Thomas Reed Powell, "The
Police Power in American Constitutional Law", 1 Journ. Comp. Leg. and
Int. Law. (part 3) 16o.
"251 U. S. 146, 4o Sup. Ct. 1o6 (1919), 19 M1ch. L. Rev. 8, note 11.
"251 U. S. 264, 4o Sup. Ct 141 (192oL 19 M1ch. L. Rev. 9. note 12.
148
MICHIGAN LAW REVIEW
intoxicating beer is within the war power, this can be legally ef

fected, only provided compensation is made." Mr. Justice Brandeis
called attention to the fact that in one of the earliest cases one of the
judgments affirmed was "for violation of the act by selling beer ac
quired before its enactment
and that it was assumed without dis
cussion that the same rule applied to the brewery and its product."
He then continued :
"But we are not required to determine here the limits in
this respect of the police power of the states ; nor whether the
principle is applicable here under which the federal govern
ment has been declared to be free from liability to an owner,
'for private property injured or destroyed during war, by the
operations of the armies in the field, or by measures neces
sary for their safety and efficiency'. . . ; in analogy to that by
which states are exempt from liability for the demolition of a
house in the path of a conflagration. . . ; or for garbage of
value taken . . . ; or for unwholesome food of value destroyed
. . . for the preservation of the public health. Here as in
Hamilton v. Kentucky Distilleries & Warehouse Co., supra,
there was no appropriation of private property, but merely a
lessening of value due to a permissible restriction imposed
upon its use."
This is plainly a stretch of the Kentucky Distilleries case, since
the Volstead Act became effective on its passage. There is nothing
in the dissenting opinion in the Ruppert case indicating specifically
that the objectors would have been mollified if the Volstead Act had
provided compensation, though Mr. Justice McReynolds refers to
the Fifth Amendment and the "well settled rights of individuals in
harmless property."
In Board of Public Utility Commissioners v. Ynchausti & Co.1*
which sustained a requirement of free carriage of the mails from
vessels engaged in the Philippine coasting trade, the Chief Justice
said that "it is impossible to conceive how either the guaranty by the
Bill of Rights of due process or its prohibition against the taking of
private property for public use without compensation can have the
slightest application to the case if the Philippine government possess"251 U. S. 4o1, 4o Sup. Ct. 277 (192o), 19 M1ch. L. Rev. 2o, note 32.
CONSTITUTIONAL LAW
149
ed the plenary power, under the sanction of Congress, to limit the

right to engage in the coastwise trade to those who agree to carry
the mails free." This, no logician would deny. This plenary power
having been found, the claim to compensation was denied. But the
Chief Justice lays down that if the power had not been plenary as
stated, the requirement could not have been sustained "because by
accepting a license the shipowners voluntarily assumed the obligation
of free carriage.'' But in Los Angeles v. Los Angeles Gas & Electric
Corporation1* in which the police power was held not to justify an
order to remove poles and wires to make room for those of a com
peting municipal system, there was held to be a taking which was
unjustified in the absence of compensation. This is to say that what
the city tried to do under the police power, it might do only by an
exercise of eminent domain.
In Hays v. Port of Seattle," too, a point of eminent domain was
indirectly involved. What was alleged to be an impairment of the
obligation of a contract was held to be a breach or repudiation of the
contract, leaving such obligation as it had still outstanding. This ob
ligation still formed the measure of the right to recover damages.
No denial of due process was involved because whatever property
rights were taken were taken for a public purpose, and the provision
in the state statutes for suing the state and having the judgment paid
out of the state treasury "satisfies the requirement of due process of
law as clearly as if the ascertainment of compensation had preceded
the taking."
For this, Mr. Justice Pitney cited Bragg v. Weaver/1 decided a
"Note 51, supra.
n For other notes on whether there has been such a "taking" as to require
compensation see 33 Harv. L. Rev. 451, 476, and 29 Yale L. J. 431.
The determination of what is "just compensation" is considered in 19
Colum. L. Rev. 492, 33 Harv. L. Rev. 981, 18 M1ch. L. Rev. 61, 799, and
68 U. Pa. L. Rev. 186.
Cases holding it a "public use" to condemn land against use for apart
ment houses are discussed in 2o Colum. L. Rev. 219, 591, 5 Cornell L. Q. 33o,
18 M1ch. L. Rev. 523, 4 M1nn. L. Rev. 5o, 236, and 29 Yale L. J. 936.
See also William E. Britton, "Constitutional Changes in Eminent Domain
in Illinois", 2 IIl. L. Bull. 497.
"251 U. S. 233, 4o Sup. Ct. 125 (192o).
"251 U. S. 57, 4o Sup. Ct. 63 (1919). See 5 Va. L. Reg. n. s. 793, and 29
Yale L. J. 577.
MICHIGAN LAW REVIEW

month earlier. Here a landowner who sought an injunction against
taking earth from his land to repair the highway objected that the
statute under which it was done "makes no provision for affording
the owner an opportunity to be heard respecting the necessity or ex
pediency of the taking or the compensation to be paid." After re
marking that it was conceded that the taking was for a public use
and that adequate provision was made for the payment of such com
pensation as may be awarded, Mr. Justice Van Devanter declares :
"Where the intended use is public, the necessity and expedi
ency of the taking may be determined by such agency and in
such mode as the state may designate. They are legislative
questions, no matter who may be charged with their decision,
and a hearing thereon is not essential to due process in the
sense of the Fourteenth Amendment."
With respect to compensation he continues:
"But it is essential to due process that the mode of deter
mining the compensation be such as to afford the owner an
opportunity to be heard. Among several admissible modes is
that of causing the amount to be assessed by viewers, subject
to an appeal to a court carrying with it a right to have the mat
ter determined upon a full trial .... And where this mode is
adopted due process does not require that a hearing before
the viewers be afforded, but is satisfied by the full hearing
that may be obtained by exercising the right to appeal."
These requirements were found to be satisfied by the procedure
offered by the Virginia statutes. These had not been construed by
the state court, but the only question was whether the landowner was
sufficiently protected in his chance to get his appeal to the court from
the decision of the supervisors on the award of the viewers. Mr.
Bragg seemed to fear that his rights might be foreclosed without
his knowledge if he were not present when the supervisors decided
how much to pay him. But the court found that under such cir
cumstances he was to be notified and was entitled to thirty days in
which to appeal. It was assumed that if he were actually present at
the supervisors' meeting, he had sufficient notice and that thirty days
from then was long enough in which to appeal. The claim that the
CONSTITUTIONAL LAW
151
determination of compensation must precede the actual taking was

dismissed by saying:
"But it is settled by the decisions of this court that where
adequate provision is made for the certain payment of the
compensation without unreasonable delay the taking does not
contravene due process of law because it precedes the ascer
tainment of what compensation is just."
It is to be remembered that Mr. Justice Van Devanter's general
statements throughout the opinion are made with reference to an
exercise of eminent domain by public, and not by private, authori
ties.
Thomas Reed Powell.
(To be concluded)
INDIRECT REVOCATION AND TERMINATION

BY DEATH OF OFFERS T N a learned and useful article, entitled "The Duration and
-Termination of an Offer,"1 by Professor Oliphant, which ap
peared in the January, 192o number of M1ch1gan Law Rev1ew, the
nature of an offer to make a simple contract was considered as well
as the question of when such an offer can be regarded as either re
voked, or terminated. It is pointed out that where the actual state of
mind of the offerer is different from his apparent state of mind that
"the former must be ignored, and whenever they happen to be identi
cal that it may be ignored without effecting results ordinarily."2 In
other words, the test to be applied in determining whether or not
there is an offer in existence, which can be accepted is, could the
offeree, as a reasonable man, when he attempted to accept the offer
believe that there was one open ? Did the offeree, at such time, have
a right to believe from what the offerer had said or done, that the
latter was in a contractual frame of mind? No one, at this stage of
the development of the Law of Simple Contracts, would be disposed
to question the soundness of this general principle, nor to determine
in any given case the existence, or non-existence of an offer in any
other way. It is believed, however, that a further application of this
test to the cases of indirect and casual revocations of offers, and a
consideration of the cases, which deal with the death of an offerer
before the offer's acceptance may well be profitable. It is, according
ly, the purpose of this article to give these situations some further
brief attention.
The normal rule is that an offerer may not destroy his offer,
during its life, except by a communication of a revocation of the
same to the offeree. "The notion that an uncommunicated change
of mind is sufficient to destroy the offeree's power to accept, which
is found in some of the earlier cases has been abandoned."3 A rule
requiring the communication of the revocation is but just and
proper. It is, in fact, but an application of the general proposition,
which Professor Oliphant lays down in his article and which is
' 18 M1ch. L. Rev. 2o1.
8 18 M1ch. L. Rev. 2o1.
* 18 M1ch. L. Rev. 2o1, et seq.
REVOCATION AND TERMINATION OF OFFERS

quoted at the outset of this. If A makes B an offer, which A repre
sents will remain open for a week and then does nothing further,
the offer will remain open for that period, and is acceptable within
it. The mere fact that A may have changed his mind within the
week will not, of itself, affect the offer, for it is not a question of
what A's real mind is, but of what B, as a reasonable man, believes
it to be. If B is reasonable in thinking that A still wants to con
tract, then it will be held that the offer is still available in spite of
any secret intentions that A may have. So the law is that B, unless
he has reason to believe that A has no longer a desire to contract,
can assume that A meant exactly what he said with respect to the
offer's life, and normally the only fact which will preclude B from
so believing is a direct, authoritative communication of a revoca
tion.
While the above is generally the rule, it may be that the offerer's
conduct, in some unusual cases, may indicate to the offeree, just as
effectively as a direct revocation, that he does not intend to con
tract, and, where this is so, such conduct will destroy the offer,
because it actually communicates to the offeree, although in an
uncommon way, a "reversal of purpose."* The offerer by so doing
makes it impossible for the offeree to believe any longer that the
offer is open for acceptance. Suppose that A offers to sell B a
horse and, during the life of the offer, B sees A killing the horse
which was offered ; this act destroys the offer because, in truth, it
was a communication of a revocation of the same, although not a
formal one. B could not, having seen A killing the horse, believe
reasonably that A wanted to sell it to him. Such a revocation
might be termed a casual one, but the terminology would only be
correct if it is meant by that that A had not formally revoked his
offer. The revocation in this case could not be considered as having
been indirectly communicated to B because B's knowledge of A's
cbange of mind came directly from A through his conduct. In fact,
the only difference between this kind of a revocation and the usual
one is, that in this instance, A does not write or speak, but merely
acts, his act being entirely inconsistent with his continuing in a
contractual frame of mind. It would seem, then, that there can be
' 18 M1ch. L. Rev. 2o8; the quotation is from Professor Oliphant at this
point.
54
MICHIGAN LA W REVIEW
a revocation of an offer, which is not formal, and can be termed

casual but which is direct, whenever the offeree discovers the offerer
acting in a way which indicates that the latter cannot, under any
conceivable state of facts, capable of existing consistently with
what he is actually doing, intend to continue his offer.5 The offeree,
in such a case, cannot assume that the offerer wants to contract, and
so the offer is gone. But suppose that in the last assumed case, B
had found the offered horse in the possession of X and had seen A
deliver the possession, but had not heard the conversation accom
panying the delivery ; this could not amount to a revocation of the
offer, because X's possession of the horse could exist consistently
with the continuation of the offer. It might have been that A de
livered the horse to X subject to the offer. The possession was not,
under all conceivable conditions, inconsistent with the offer, and so,
B had a right to believe that X's possession did not effect it in any
way, but that it continued as originally represented.9
There is, however, a class of cases, which is apt to be confused
with the group just discussed and where, unless care be taken, it will
be thought that there is room to hold also that there has been an
informal or casual revocation of the offer, but where, in truth, if a
careful analysis of the facts is made, it will be readily seen that
this is not so. This class of cases is represented by the situation
presented in Dickinson v. Dodds.7 Making the facts in that case
a little stronger than they actually were, they would be these: A
makes an offer to sell to B a parcel of land, the same to remain open
for a week ; during the course of the week, X, a friend of B, know
ing of the offer, comes to B and tells him that A told him, X, that
he would not sell the land to B ; in fact, that he could not do this
for the reason that the land had been disposed of to another. Would
* Another case where there would be a casual revocation of this kind
would be in the case, often suggested, where the offerer has offered real
estate, and the offeree sees a deed covering the same land on record, which
runs from the offerer to another. It is to be noted that the deed is the
direct act of the offerer, known directly to the offeree. There is therefore
no revocation resulting from indirect information.
8This proposition is intimated by Professor Oliphant (18 M1ch. L. Rev.
2o7) in connection with his discussion of the case of Dickinson v. Dodds, 2
Ch. Div. 463.
'2 Ch. Div. 463.
155
this information, given in this way, amount to a revocation of the

offer? It is not altogether clear to the writer whether or not Pro
fessor Oliphant means to intimate that X's report in the assumed
case would constitute an effective revocation. The author, how
ever, states his rule as follows:8
"If in a given case what the offerer says or does indicates to
the offeree that the offerer no longer intends to perform his offer,
there seems to be no sufficient reason to hold a casual communica
tion of this fact any less effective as a revocation of the offer than
a direct communication. An offer continues no longer than the ex
pectation aroused continues. If that expectation is destroyed, there
is no longer any offer so that how it was destroyed would seem to
be unimportant." This proposition might be construed in a broad
enough manner to justify a person in applying it to the suggested
case, and in holding, as a result, that the offer had been revoked by
X's report. It is to be noted also that the author, in support of his
suggested rule cites authority which would hold that there had been
a revocation in such a case.9 It is possible that a situation such as
that supposed might present itself for decision where either (1) X
was incorrect as to his information, and A had not really told him
what he reported to B, or (2) where X was correct and made a
truthful statement to B. It is believed that under neither of these
assumptions could it be said that the offer was destroyed or revoked
but that, in spite of all that happened, the offer continued and would
have been acceptable by B. It is urged that if Professor Oliphant's
statement, quoted above, is intended to suggest a contrary holding,
that it is not sound.
Whenever the offeree would be unreasonable in thinking that
the offer was still available, and this would be due to conduct of
the offerer of which he knew, there would be a revocation. Con
versely, whenever the offeree could reasonably assume, in the face
of all he knew, or the offerer had done, that there was an offer in
existence, there will be no revocation, and the offer will still be
open. Applying these rules to the case where X was incorrect in
his report as to A's frame of mind, one is led inevitably to the con
clusion that the offer was still open. To hold otherwise it would
8 18 M1ch. L. Rev. 2o8.
' 18 M1ch. L. Rev. 2o8, note 14.
156
MICHIGAN LAW REVIEW
have to be found, at least, that B could not plausibly believe that A

was still willing to make a contract. Suppose B had believed X,
and had accordingly abandoned all hope of accepting the offer, but,
while in this attitude, had fallen in with A, who told him that his
impression with respect to the offer was altogether wrong, and
that it had not been revoked ; all would agree that under these con
ditions B could have accepted the original offer,10 because it had
in reality been available all along. Moreover, it is submitted, that
all ought to agree, if the problem is looked at in this light, that if B
had not met A, and had, as a result not accepted the offer, because
of his erroneous belief that it was at an end, that B's failure to
accept would have been due solely to his folly in believing X's re
port. In other words, this entirely possible supposition leads one
to say that B, at all times, would have been reasonable had he dis
regarded X's report, and considered A's offer as never having been
authoritatively revoked. There was no direct conduct on the part
of either A, or an agent of A, which would preclude B's belief to
this effect. Casual information such as X brought to B, in the case
under consideration will not destroy the offer because it does not
destroy the offeree's expectation. As has been seen, some casual
information may have this effect, but in cases considered to this
point in addition to being casual, the information has also been
direct and authoritative.
Turning to the second case, namely, that where X was accurate
in his report, and A was no longer in a contractual frame of mind,
there would seem to be no justification for holding that such a
change in the facts of the case should lead to a decision that the
offer was revoked. It must be remembered that such a holding is only
justifiable in instances where the offeree, from what he knows, is
precluded from reasonably thinking that the offerer might still be
willing to contract. There is nothing in this case to bring about
this result. The information, which he has at hand is the same as
he had in the first suppositious case, and there it was shown that he
" It might be suggested that what would happen here would be that A
made a new offer; it is not believed that this is so. All that A does is to
say, in effect, as follows : "I have never changed my mind ; it is the same
as ever, and my same offer, originally made, still stands." This is not
making a new offer, but merely assuring the offeree of the continued exist
ence of an old contractual intent.

would be reasonable in taking the offer as still open. X's report in
this case will not appear differently to B than it did in the case
where X was not telling the truth. This being so, if B was reason
able in the first case in thinking the offer available, he will be just
as reasonable in so thinking in the second. So far as B is concern
ed, the same facts exist in each case ; whatever impression, there
fore, they make in one, they must also make in the other. So again
it must be said that the offer was not revoked.
In the light of the foregoing discussion, it is sound to hold that
a casual revocation of an offer can be effected only when by
"casual" is meant informal action by either the offerer, or his duly
qualified agent. Mere "hear-say information"" about a change of
mind on the part of the offerer can never be authoritative, and if it
is not, then the offeree can reasonably recognize this fact, and, ac
cordingly, assume that the offer stands as originally made. This
proposition amounts to holding that no indirect communication of a
revocation will result in destroying the offer. To bring about this
result there must be direct action on the part of the offerer, known
to the offeree. This is just, and is merely applying the objective
theory of contracts. Does not an offerer, when he makes an offer,
in effect lead the offeree to believe that the offer will stand unless he
informs the latter in some way or other to the contrary ? It is true
that in exceptional cases the offer will be destroyed without the of
ferer's formally notifying the offeree of his change of mind, but in
all of these cases there is, in spite of this lack of formality, alto
gether reliable information resulting from the offerer's own con
duct, which informs the offeree, with no uncertainty, that the offer
er will not contract. Such cases in reality, therefore, are not con
trary to the suggested rule. Of course, it is realized that the rule
suggested involves holding that Dickinson and Dodds12 is wrong;
it is believed that this is true.
It might be said that if the report of the offerer's change of
mind is correct that it ought to destroy the offer; that there is no
justification under these conditions for permitting him to insist that
there is an acceptable offer. Perhaps in a loose sense, this is true.
But even so, it does not follow that this ought to be the result by
" The quotation is from Professor Oliphant, 18 M1ch. L. Rev. 2o7.
"Supra, note 7.
158
MICHIGAN LAW REVIEW
reason of the information having worked a revocation; it cannot.

It might be, however, that such information ought to put the offeree
on inquiry as to what the real state of mind of the offerer may be.
What is meant by this suggestion is, that it might be the duty of
the offeree, in the face of this information, to go to the offerer and
find out whether he really has changed his mind, as reported. But
suppose that this duty is imposed on the offeree; suppose that he
does go, and inquire ; if he does and finds that the report is true,
then there will be a revocation as a result, not of the report furnish
ed, but as a result of the direct authoritative statement made to
him by the offerer in answer to his question. On the other hand, if
the offerer tells the offeree, in answer to the latter's question, that
the report is untrue, there will be no revocation at all ; all that the
statement will accomplish will be to assure the offeree that the orig
inal offer is still open. The suggestion that the report of change of
mind should put the offeree on inquiry is not one that appeals to the
writer. It is believed that a better attitude would be one. which
permits the offeree to disregard statements coming from an unauth
orized source. But it can be said, if it is thought wise, that the
offeree should be on inquiry, and holding him to such a duty docs
not involve a further holding that the information brings about a
revocation before it is verified.
II
If an offerer makes an offer and then dies before its acceptance,
there are cases holding that such a death terminates the offer, even
though the offerer does not know of this fact.15 The reason usually
given for such a decision, is that a contract cannot be made with a
dead man ; the offerer's mind, through his death, is gone, hence there
is no possible basis for saying that there is a meeting of the minds.14
Professor Oliphant suggests15 that it is not essential to have a "con
currence of wills" to have a contract (which is true) and that there
fore it is immaterial whether the offerer's mind meets that of the
offeree when the offer is accepted. The author says that the offerer,
by his offer, "aroused a reasonable expectation in the mind of the
" 18 M1ch. L. Rev. 21o, note 18 and cases cited.
" 18 M1ch. L. Rev. 21o.
" 18 M1ch. L. Rev. 21o.
'59
offeree, upon which, by hypothesis, he has reasonably acted" when

he accepted the offer, and accordingly there ought to be a contract
notwithstanding the death of the offerer.19 It is suggested that a
decision that there is not a contract under this state of facts, is "a
good example of the persistence of the subjective analysis of the
law of contracts."17 The point to the learned writer's argument
would seem to be that when an offer is made, the offeree has a right
to believe that it will continue for the time specified, and so unless
he knows of the death of the offerer, he will be reasonable in assum
ing him still to be living and the offer continuing. On the other
hand, Professor Oliphant states18 that if the offeree knows that the
offerer is dead, that he cannot accept the offer, because under those
conditions he would know that there was no basis for mutual as
sent and agreement. But if the offeree does not know of this fact,
it is said that the offer ought to be acceptable.
It is possible to make an offer's duration contingent upon a
certain event. If it is contingent, and the event happens, the offer is
dead ; it lapses, and this is so whether the offeree knows of the hap
pening of the contingency, or not. "Suppose A makes an offer to
B saying that it is to remain open for two weeks, but is to end at
once if A's factory is destroyed by fire within the two weeks. Sup
pose that the factory burns within the period limited, and A there
after accepts not knowing that it has burned. No contract arises,
not because the offer has been revoked, but because it has lapsed
on the happening of the contingency. The contingency qualified
the expectation."18 This is a just result; B ought to have known
in the assumed case, as a reasonable man, that the offer would ter
minate if the specified condition happened. B also knew that it
was not a question of whether he knew of that condition having
happened, for by the terms of the offer, he was compelled to take
a chance as to that. It is also possible that a condition to an offer
may be implied rather than expressed.20 This will be the case when
ever the parties know, even though they do not say so, that it is in
tended by the offerer that the happening of some event shall des" 18
" 18
" 18
" 18
" 18
M1ch.
M1ch.
M1ch.
M1ch.
M1ch.
L.
L.
L.
L.
L.
Rev.
Rev.
Rev.
Rev.
Rev.
21o.
21o.
2o9.
2o6.
2o6.
MICHIGAN LAW REVIEW

troy the offer. Now it is believed that both offerer and offeree
know that it is intended that the offer's life shall be contingent upon
the continued lives of both parties. The offerer does not intend tc
contract with a dead manthat is certainnor does the offeree in
tend to do that.-1 Each of the parties act with the notion in mind
that each of them will live, and that each one intends that negotia
tions shall cease if the other dies. If this is so, does it not follow that
if the offerer dies the offer will lapse (this is not a case of revocation)
because the implied condition "qualified the expectation"? It is not
intended to support the reasoning that is adopted in the cases, hold
ing that the offer is ended by the death of the offerer. The matter
should not be treated to a subjective analysis. But the result of the
decisions is right, for the offeree ought to have known that the con
tinuation of the offer was subject to the implied condition that the
offerer should continue to live.25
James Lew1s Parks.
University of Missouri School of Law.
" Professor Oliphant, at one point in his article, assumes this, for he
says (18 M1ch. L. Rev. 2o9) that if the offeree knows of the death of the
offerer before acceptance, the offer is gone. This must be because the offeree,
as a reasonable man, knows that he is to contract with a living man, and
not with the estate of a dead one. That is what reasonably passes through
his mind, when he hears of the death of the offerer, otherwise he would be
justified in insisting that the offer was still open.
"Some five years ago, the writer had the privilege of being associated
with the late Professor E. O. Schreiber at George Washington University
Law School. As a result, he received from Professor Schreiber many use
ful suggestions, which have influenced him in his discussion of the case of
Dickinson v. Dodds. It is not intended, however, to intimate that Professor
Schreiber, were he living, would subscribe to all that is here written in this
connection, but merely to make acknowledgment of that which has turned
out to be of assistance.
THE LAW OF OIL AND GAS, IV*

(4) The Habendum Clause.
This clause follows the grant, and is one of the most distinctive
features of the modern oil and gas lease. Occasionally the dura
tion of the lease is fixed by the granting clause; some times by a
miscellaneous provision appearing therein. But generally speaking,
the habendum defines the term of the present-day oil and gas lease.
At any rate a discussion of the legal effect of the habendum clause
which now characterizes these instruments will involve the treat
ment of every important question which arises under this heading.
At the outset we should observe that the clause is the direct result
of a natural evolution in the methods and customs of the bus1
ness. Also that the provision owes its present form to two com
pelling considerations. The first deals with the situation of the
lessor and the second with the situation of the lessee. Manifestly
a landowner is reluctant to encumber his land for an indefinite time
with an unproductive lease. This statement does not imply that
every lease, or even a substantial proportion of the leases taken,
must be developed. The industry could not survive if such were
the requirement. What is meant is that the lessee shall have a rea
sonable period for exploration, and if within this interval no wells
are drilled or if the wells drilled prove to be nonproductive, then
the lease expires, leaving the lessor free to make such disposition
of his land as he will. Therefore in formulating a provision fixing
the duration of an oil and gas lease the obvious self-interest of the
lessor must be taken into account. On the other hand, the sole
risk of the venture rests with the lessee. He must enter upon a
precarious and uncertain undertaking attended by great financial
hazard. In such circumstances the duration of the lease must be
sufficiently inviting to induce him to devote his energies and capital
to a business wholly speculative in character. Clearly the answer
to the predicament of the lessee is this: If he find production with
in the exploratory period then he should have the enjoyment of his
lease during its profitable life. Founded upon these basic consid
erations the industry finally has evolved the following habendum
Continued from 18 M1ch. L. Rjv. 773.
16a
MICHIGAN LAW REVIEW
clause: "To have and to hold said premises for the purposes
aforesaid to and unto the lessee, its successors and assigns, for the
term of five years from date hereof and as much longer thereafter
as oil or gas shall be produced therefrom in faying quantities''
It is to be noticed that this clause performs a double function. First
of all it provides that the lease shall expire at the end of a lim1ted
term of reasonable duration unless the lessee at that time is pro
ducing oil or gas in paying quantities. Thus far the provision is
for the exclusive benefit of the lessor. Supplementing this, how
ever, is a provision whereby the lessee is vested with the right to hold
the lease as long as oil or gas is found in paying quantities upon
the condition that the lease is made productive during the fixed term.
Therefore the clause serves the peculiar interest of the lessee also.
In order to grasp the exact significance of the clause in the
economy of our subject we must review the conditions which
brought it to its present form.
Broadly speaking, the duration of the oil and gas lease is dis
tinguished by three stages of development. The first period ex
tended from the beginning of the industry until about .188o, and
was characterized chiefly by a lease providing for a fixed and defin
ite term, just as was true of all ordinary mining leases of that
day. The interval between 188o and 190o marked the transition
from the early type to the modern lease. Since 19oo it has been
the almost universal custom to employ a lease providing for a
fixed term of limited duration, with a proviso carrying the lease
beyond that term upon the condition that oil or gas is being pro
duced in paying quantities at the end of the stated term. Turning
to the initial period, it was to be expected that during the first two
or three years of its history the industry should be found groping
for an appropriate and adaptable provision to establish the duration
of its basic contract. At this time there was no pronounced drift
toward uniformity in the term of the lease, although many leases
appeared of record during the interval which were to "continue in
force until annulled by mutual agreement." Such was the form
employed in a lease considered in one of the early Pennsylvania
cases.1 Then again it was provided : "Should oil and salt or
either be found in profitable quantities, lease to be perpetual for all
'Union Petroleum Co. v. Bliven Petroleum Co., 72 Pa. St. 173 (1872).
THE LAW OF OIL AND GAS

purposes therein mentioned."2 Again: "If oil is found, the right
to pump to continue as long as rent (royalty) is paid."3 Setting
aside these very early grants, the leases of the era fell into three
general classes: First, leases made perpetual by express provision
which were subject to forfeiture within the term if operations were
not commenced within a stipulated time. Second, leases which were
silent as to term, these also providing for the commencement of
operations within a specified period, or the forfeiture of the grant.
In a lease of this class there was no express provision for the con
tinuance of the grant during the period of production. Although
the point has never been squarely decided, it is probable that this
right would be implied. Such is the intimation in one jurisdiction
at least.* Leases of the two classes just described were exceptional,
however, and the period was definitely characterized by a lease for
a fixed term, usually ranging from fifteen to twenty-five years, al
though leases for forty, fifty, and even ninety-nine years were by
no means uncommon/'
9Rynd v. Rynd Farm Oil Co., 63 Pa. St. 397 (1869).
Dark v. Johnston, 55 Pa. St. 164 (1867).
'Tucker v. Watts, 25 Ohio Cir. Ct. Rep. (NS) 32o (19o3).
Chicago & Allegheny Co. v. United States Petroleum Co., 57 Pa. St.
83 (1868), 2o years Karns v. Tanner, 66 Pa. St. 297 (187o), 5o years; Allison's
Appeal, 77 Pa. St. 221, (1874), 2o years; Brown v. Vandergrift, 8o Pa. 142
(1875), 2o years; Appeal of Stoughton, 88 Pa. St. 198 (1878), 21 years;
Munroe v. Armstrong, 96 Pa. St. 3o7 (188o), 2o years; Kitchen v. Smith,
1o1 Pa. St. 452 (1882), 15 years; Duke v. Hague, 1o7 Pa. St. 57 (1884), 2o
years; Brown v. Beecher, 12o Pa. St. 59o, 15 Atl. 6o8 (1888), 15 years;
Washington Gas Co. v. Johnson, 123 Pa. St. 576, 16 Atl. 799 (1889), 2o years;
Appeal of Wills, 13o Pa. 222, 18 Atl. 721 (1889), 2o years; Thompson v.
Ridehperger, 144 Pa. 416, 22 Atl. 826 (1891), 15 years; Duffield v. Rosenzweig, 144 Pa. 52o, 23 Atl. 4 (1891), 15 years; McKnight v. Gas Co., 146 Pa.
185, 23 Atl. 164 (1892), 2o years; Nesbit v. Godfrey, 155 Pa. 251, 25 Atl. 621
(1893), 21 years; Sanders v. Sharp, 153 Pa. 555, 25 Atl. 524 (1893), 2o years;
Venture Oil Co. v. Fretts, 152 Pa. St. 451, 25 Atl. 732 (1893), 2o years; McNish v. Stone, 152 Pa. 457, 25 Atl. 732 (1879), 99 years; Williams v. Guffy,
178 Pa. 342, 35 Atl. 875 (1896), 2o years; Mathews v. People's Gas Co, 179
Pa. 165, 36 Atl. 216 (1897), 2o years; Gale v. Oil Run Pet. Co, 6 W. Va.
2oo (1873), 2o years; Wood Co. Pet. Co. v. Transportation Co, 28 W. Va.
21o, (1886), 15 years; Guffy v. Hukill, 34 W. Va. 49, 11 S. E. 754, (189o), 2o
years; Thomas v. Hukill, 34 W. Va. 385, 12 S. E. 522 (189o), 2o years; Hukill
v. Myers, 36 W. Va. 639, 15 S. E. 151 (1892), 2o years; Hukill v. Guffy, 37
W. Va. 425, 16 S. E. 544 (1892), 2o years; Haskell v. Sutton, 53 W. Va. 2o6,
MICHIGAN LAW REVIEW

When we consider this type of lease in the light of our present
knowledge of the subject it is at once evident that a lease termi
nating on a definite day in the future is not adapted to the peculiar
nature of the business. We know now that a lease will continue
to produce oil at a profit for a much longer period than the fifteen,
twenty or twenty-five year term provided here. Today wells are
still in operation in Pennsylvania which have been producing for fifty
years. Wells in that district which have produced for forty years
are the rule rather than the exception. In Ohio and West Virginia
there are properties which have been producing for thirty or
thirty-five years. Even in the more recent oil-producing states
there are wells which are from fifteen to twenty years old and
which are now being operated at a substantial profit. But mani
festly these things were unknown to the early operators. Tc them
the whole enterprise was a precarious experiment at best. It was
problematical whether the fields then in operation would ever pro
duce enough petroleum to put the business upon a permanent ba
sis. Furthermore, the vision of these men did not extend beyond
the few districts which were then productive. Even the question
of an enduring market was shrouded in uncertainty. These condi
tions in themselves implied a short-term lease. Moreover, it was
universally believed that an oil property would exhaust rapidly, and
in the light of the experience then possessed by persons engaged
in the business this conclusion had some foundation. The area of
a lease was decidedly restricted, which fact under ordinary circum
stances would enable the lessee to recover the oil content of his
property within a much shorter period than was true of the more
extensive leases which characterized the industry later. Again, the
daily production of the wells was small in comparison with later
discoveries, which indicated the probable exhaustion of a property
within a comparatively brief period. Above everything the capa
city of petroleum to migrate underground was greatly exaggerated
in the popular mind. It was believed that one well would drain
the oil from a large area speedily and completely. These consider44 S. E. 533 (19o3), 2o years; Van Etten v. Kelly, 66 Ohio St. 6o5, 64 N. E.
56o (1902), 15 years; Baujngardner v. Browning, 12 Ohio Cir. Ct. Rep. 73
(1896), 2o years; Wagner v. Mallory, 169 N. Y. 5o1, 62 N. E. 584 (19o2),
4o years.
165
ations induced the early operators to commit the industry to a

lease of limited duration.
When these leases began to expire, however, it became increas
ingly evident, that a lease of this type was not adapted to the enter
prise. The average lessee would find himself in this predicament.
Two or three years before the termination of his lease the property
would be producing oil in substantial quantities and would give
every promise of producing for an indefinite period in the future,
at any rate for a considerable length of time beyond the fixed term
of the lease. There would be no provision for renewal, and ac
cordingly the lessee would be faced by the unhappy alternat1ve of
surrendering a valuable property or of negotiating a renewal.
Usually if this concession were obtainable under any circumstances
it would be at a price equivalent to the full value of the lease-hold
at the time. In other words, the lessee was put to the necessity of
purchasing a property which had been developed at his sole risk
and expense. Manifestly this situation alone was sufficient to con
vince the industry that a lease effective throughout the period of
production was an indispensable requisite. But experience had
revealed other compelling objections to a lease of this character.
It had been demonstrated that the practical method of operating
an oil property was this. First, the lessee should continue to drill
wells as long as paying wells were found until the property was
completely developed. As a result, both parties realized the great
est possible profit from the venture. Secondly, when paying wells
were found on adjoining lands the lessee should offset the same
promptly in order to protect the leased premises from drainage.
But a lease of fixed duration was not adapted to this plan of devel
opment. Here a stage would be reached toward the end of the
grant when the lessee could not afford to drill additional wells
even to protect the land from drainage because the production there
from within the remaining term of the lease would not be suffi
cient to pay the cost of drilling. The result was inevitable. Dur
ing the last two or three years of the lease the lessee would refrain
from all drilling operations, contenting himself with the production
from the wells drilled previously. On the other hand a lease ef
fective as long as oil or gas should be found justified an uninter
rupted course of development, dependent only upon the result
MICHIGAN LAW RIIVIEW

achieved. A further circumstance which was calculated to induce
the lessors of that period to renounce the lease of fixed duration
was this. As a rule, the removal of the casing from an oil well
necessitates the abandonment of the well. Most of these early
leases by express stipulation gave the lessee the right to remove
the casing from all wells at the termination of the lease. Even in
the absence of a provision of this character it was the rule in Penn
sylvania that the casing in a well was a trade fixture which the
lessee had the right to withdraw upon the termination of the lease.9
Occasionally where the parties were unable to agree upon a re
newal the lessee would permit the lessor to purchase the casing at
cost, but in frequent instances a lessee would draw the casing from
his wells at the expiration of his lease, yielding the lessor a dis
mantled, or perhaps valueless, property. These and numerous other
practical considerations unnecessary to mention here, brought both
lessors and lessees to the realization that the instrument which was
peculiarly adapted to the prosecution of the business was a lease to
continue in force as long as oil or gas should be found in paying
quantities.
This brings us to the second stage in the development of the
term of the oil and gas lease, namely, the transition period. In the
late seventies leases for a definite term of years and as long there
after as oil or gas should be produced in paying quantities began
to appear of record in the oil districts of Pennsylvania, West Vir
ginia and Ohio, but the first lease of this character considered in a
reported case was made in 1881.7 Here the habendum clause pro
vided: "To have and to hold the same for the term of twelve
years from this date, or as long as oil is found in paying quantities."
Between 188o and 189o this type of lease was in somewhat general
use in Pennsylvania, West Virginia, Ohio and Indiana,8 although
*Shellar v. Shivers, 171 Pa. St. 569, 33 Atl. 95 (1895); Cassell v. Crothers, 193 Pa. St. 359, 44 Atl. 446 (1899) ; Sattler v. Opperman, 47 Pittsburgh
Legal Journal, 2o5 (1899) ; Sattler v. Opperman, 14 Pa. Super. Ct. Rep. 32
(19oo) ; Forest Oil Co. v. Hart, 5o Pittsburgh Legal Journal, 17 (19o2) :
Smith v. Hickman, 14 Pa. Super. Ct. Rep. 46 (19oo).
'Eaton v. Alleghany Gas Co., 122 N. Y. 416, 25 N. E. 981 (189o).
9Agerter v. Vandergrift, 138 Pa. 576, 21 Atl. '2o2 (1891) ; Smiley v.
Western Pa. Nat. Gas Co., 138 Pa. St. 576, 21 Atl. 1 (1891); Springer v.
Citizens Nat. Gas Co., 145 Pa. Ct. 43o, 22 Atl. 986 (1891) ; Heintz v. Shortt,
149 Pa. St. 286 24 Atl. 316 (1892) ; Glasgow v. Chartiers Oil Co., 152 Pa.
167
leases of fixed duration were by no means uncommon during this

interval.* In the succeeding decade, however, it became the almost
St. 48, 25 Atl. 232 (1892); Gibson v. Oliver, 158 Pa. St. 277, 27 Atl. 961
(1893) ; Western Pa. Gas Co. v. George, 161 Pa. St. 47, 28 Atl. 1oo4 (1894) ;
Hooks v. Forst, 165 Pa. St. 238, 3o Atl. 846 (1895) ; Shellar v. Shivers, 171
Pa. St. 569, 33 Atl. 95 (1895) ; Double v. Union Heat & Light Co., 172 Pa.
St. 388, 33 Atl. 694 ( 1896) ; Stage v. Boyer, 183 Pa. St. 56o, 38 Atl. 1035
(1898) ; Akin v. Marshall Oil Co., 188 Pa. St. 6o2, 41 Atl. 748 (1898) ; Burton
v. Forest Oil Co., 2o4 Pa. St. 349, 54 Atl. 266 (19o3) ; Schaupp v. Hukill, 34
W. Va. 375, 12 S. E. 501 (189o) ; Crawford v. Ritchie, 43 W. Va. 252, 27 S.
E. 22o (1897) ; Crawford v. Bellcview Nat. Gas Co., 183 Pa. St. 227, 38 Atl.
595 (1897); Jackson v. O'Hara, 183 Pa. St. 233, 38 Atl. 624 (1897); Core
v. New York Pet. Co., 52 W. Va. 76, 43 S. E. 128 (19o2); Toothman v.
Courtney, 62 W. Va. 167, 58 S. E. 915 (19o7) ; Herrington v. Wood, 6 Ohio
Cir. Ct. Rep. 326 (1892) ; Baker v. Stow, 12 Ohio Cir. Ct. Rep. (N. S.) 489
(1892) ; Miller v. Vandergrift, 12 Ohio Cir. Ct. Rep. (N. S.) 475 (1892);
Northwestern Ohio Nat. Gas. Co. v. Whitacre, 12 Ohio Cir. Ct. Rep. (N. S.)
5o5 (1892); Hollister v. Vandergrift, 12 Ohio Cir. Ct. Rep. (N. S.) 56
C 1892) ; Emerine v. Steel, 8 Ohio Cir. Ct. Rep. 381 ( 18o4) ; Northwestern
Ohio Nat. Gas Co. v. Davis, 9 Ohio Cir. Ct. Rep. 551 (1895) ; Stahl v. Van
Vleck, 53 Ohio St. 136, 41 N. E. 35 (1895) ; Simon v. Northwestern Ohio
Nat. Gas Co., 12 Ohio Cir. Ct. Rep. 17o (1896) ; Blair v. Northwestern Nat.
Gas. Co., 12 Ohio Cir. Ct. Rep. 78 (18o6) ; Woodland Oil Co. v. Crawford,
55 Ohio St. 161, 44 N. E. 1o93 (1896) ; Harris v. Ohio Oil Co., 57 Ohio St.
118, 48 N. E. 5o2 (1897); Northwestern Ohio Nat. Gas Co. v. Ullery, 68
Ohio St. 259, 67 N. E. 494 (19o3) ; Evans v. Consumers' Gas Trust Co.,
Ind. Sup.
, 29 N. E. 398 (1891) ; Indianapolis Nat. Gas Co. v. Kibbey,
135 Ind. 357, 35 N. E. 392 (1893) ; Edmonds v. Mounsey, 15 Ind. App. 399,
44 N. E. 196 (1896) ; Indianapolis Gas Co. v. Teters, 15 Ind. App. 475, 44
N. E. 549 (1896); American! Window Glass Co. v. Williams, 3o Ind. App.
685, 66 N. E. 912 (19o3) ; Indiana Nat. Gas & Oil Co. v. Grainger, 33 Ind.
App. 559, 7o N. E. 395 (19o4)Williams v. Guffy, 178 Pa. St. 342, 35 Atl. 875 (1896); Mathews v.
People's Gas Co., 179 Pa. St. 165, 36 Atl. 216 (1897) ; Washington Nat. Gas
Co. v. Johnson, 123 Pa. St. 576, 16 Atl. 799 (1889); Appeal of Wills, 13o
Pa. St. 222, 18 Atl. 721 (1889) ; Brown v. Beecher, 12o Pa. St. 59o. 15 Atl.
6o8 (1888) ; Thompson v. Ridelsperger, 144 Pa. 416, 22 Atl. 826-827 (1891) ;
Duffield v. Rosenzweig, 144 Pa. 52o, 23 Atl. 4 (1891) ; Nesbitt v. Godfrey,
155 Pa. 251, 25 Atl. 621 (1893) ; Sanders v. Sharp, 153 Pa. 555, 25 Atl. 524
(1893) ; Venture Oil Co. v. Fretts, 152 Pa. 451. 25 Atl. 732 (1893); Guffy
v. Hukill, 34 W. Va. 49, 11 S. E 754 (189o) ; Thomas v. Hukill, 34 W. Va.
385. 12 S. E. 522 (189o) : Hukill v. Myers, 36 W. Va. 639, 15 S. E. 151 (1892) ;
Hukill v. Guffy, 37 W. Va. 42S, 16 S. E. 544 (1892) ; Haskell v. Sutton, 53
W. Va. 206, 44 S. E. 533 (19o3); Van Etten v. Kelly, 66 Ohio St. 6o5, 64
N. E. 56o (19o2) ; Baumgardner v. Browning, 12 Ohio Cir. Ct. Rep. 73 f18o6).
1 68
MICHIGAN LAW REVIEW
universal practice to take leases effective for the producing life of

the property. Although the oil industry had thus achieved its own
objective it was still reluctant to consent to the type of lease which
the peculiar situation of the lessor required, namely, a lease expiring
at the end of a fixed term of reasonable duration unless made pro
ductive within that period. Three types of leases now came into
use which were designed to enable the lessee to hold the lessor's
land for a long term or for an indefinite period without develop
ment. The first leases of this description were for terms ranging
from fifteen to twenty-five years and as long thereafter as oil or
gas should be found.10 As a rule a lease of this description would
contain a provision vesting the lessee with the right to hold the
grant for the entire fixed term of fifteen or twenty-five years, as
the case might be, without development and upon the payment of a
periodical rental only. If production were found during the ex
ploratory period, however, the lease would remain in force as long
as that condition continued. In other words, the only change oc
curring here was that the phrase "as long thereafter as oil or gas
shall be found in paying quantities" was added to the limited haben
dum clause of the fifteen or twenty-five year leases which were
then passing into disuse. This innovation accomplished nothing in
the direction of reducing the length of the exploratory period. On
the other hand leases of this description did not meet the design
of the industry completely, because in many cases lessees were bound
to the payment of a rental for a long term regardless of the prob
able value of the property for the purposes of the lease. The situ
ation resulted in an experiment by means of which the industry
sought to achieve a twofold object: First, a lease effective for the
purpose of exploration as long as the lessee might elect to pay the
M Blakley v. Marshall, 174 Pa. 425, 34 Atl. 564 ( 1896) ; Calhoun v. Neely,
2o1 Pa. 97, 5o Atl. 967 (19o2) ; Wilson v. Philadelphia Co., 21o Pa. 484, 6o
Atl. 149 (19o4) ; Mcintosh v. Ropp, 233 Pa. 497, 82 Atl. 949 (1912) ; HuUill
v. Guffy, 37 W. Va. 425, 16 S. E. 544 (1892) ; Crawford v. Ritchey, 43 W. Va.
252, 27 S. E. 22o (1897); Parish Fork Oil Co. v. Bridgewater Gas Co.. 51
W. Va. 583, 42 S. E. 655 (19o2) ; South Penn Oil Co. v. Haught, 71 W. Va.
72o, 78 S. E. 759 (1913) ; Freeman v. McKay, W. Va. , 98 S. E. 263
(1919) ; Siler v. Globe Window Glass Co., 21 Ohio Cir. Ct. Rep. 284 (19oo) ;
Munscy v. Marnett Oil & Gas Co. (Tex. Civ. App.), Tex. , 199 S. W.
686 (7917).
169
stipulated rental, the lessee having the right to retire from the con
tract when the value of the property no longer justified such pay
ment; secondly, in the event production were realized it was in
tended that the lease should remain in force as long as oil or gas
was produced in paying quantities. The consequence of a lease of
this character is immediately apparent. It enabled the lessee to
hold the lessor's lands indefinitely without development. In these
circumstances two types of leases came into use. In the one case
the habendum clause took this form: "To have and to hold the
above premises unto the parties of the second part, their heirs and
assigns, on the following conditions."11 No term was stated but
the rental clause was so phrased as to permit the lessee to hold the
lease indefinitely by the payment of the periodical rental. It was
also provided that if production were developed during the indefin
ite term, that is, while the lessee was holding the grant by the pay
ment of rental, the instrument should remain in force as long as oil
or gas was produced in paying quantities. This form came into
rather general use in West Virginia, Ohio and Indiana.12 In the
other type the habendum clause was in this language: '"To have
and to hold said premises for the term of ten years, or thereafter
while oil or gas is produced in paying quantities or the rental
paid."13 It is to be noticed that the happening of either one of two
conditions would carry the lease beyond the fixed term: First, the
finding of production within that period, or, secondly, the payment
of the stipulated rental. In other words, the legal effect of this
lease was identical with the one involved in Lowther Oil Co. v.
Guffey. The form was very generally employed in Pennsylvania,
West Virginia and Indiana.1* Neither of these leases withstood
"Lowther Oil Co. v. Guffy, 52 W. Va. 88, 43 S. E. 101 (1902).
"Weaver v. Akin. 48 W. Va. 456, 37 S. E. 6oo (1ooo) ; Johnson v. Arm
strong, 81 W. Va. 399, o4 S. E. 753 Oo17) ; Thaw v. Gaffney, 75 W. Va. 22o,
83 S. E. o83 (1914) ; Wilson v. Reserve Gas Co., 78 W. Va. 329, 88 S. E.
1o75 (1916) ; Central Ohio Gas Co. v. Eckert, 7o Ohio St. 127, 71 N. E. 281
O9o4} ; Carr v. Huntington Light Co., 33 Ind. App. I, 7o N. E. 552 (1oo4) :
Indiana Nat. Gas Co. v. Leer, 34 Ind. App. 61, 72 N. E. 283 ( 19o4) ; Diehl
v. Ohio Oil Co., 12 Ohio Cir. Ct. Rep. (N.S.) 539 (1892), 2o O. C. D. 75o.
"Burton v. Forest Oil Co., 2o4 Pa. St. 349, 54 Atl. 266 (19o3).
"Letherman v. Oliver, 151 Pa. St. 646, 25 Atl. 3o9 (1892) ; Western Pa.
Gas Co. v. George, 161 Pa. St. 47, 28 Atl. 1oo4 (1894) ; Summerville v.
Apoll- Gas Co., 2o7 Pa. 334, 56 Atl. 876 (19o4) ; Barnsdall v. Bradford Gas
170
MICHIGAN LAW REVIEW
the scrutiny of the courts. The rule was everywhere adopted that
when a lessee had the apparent rjght to hold a lease indefinitely
upon the payment of a rental alone the lessor might demand a well,
give the lessee a reasonable time to perform, and failure to drill was
ground for the cancellation of the lease.15 This judicial announce
ment brought the industry to the adoption of the habendum clause
which now characterizes the oil and gas lease. Otherwise stated,
when the courts decided that a lessee could not hold his lease in
definitely by the mere payment of a rental, the only alternative was
Co., 225 Pa. 338, 74 Atl. 2o7 (19o9) ; Burgan v. South Penn Oil Co., 243 Pa.
128, 89 Atl. 823 (1914) ; McKean Nat. Gas Co. v. Wolcott, 254 Pa. 323, 98
Atl. 955 (1916); Schaupp v. Hukill, 34 W. Va. 375, 12 S. E. 5o1 (189o);
Bettman v. Harness, 42 W. Va. 433, 26 S. E. 271 (1896) ; Myers v. Carnahan,
61 W. Va. 414, 57 S. E. 134 (19o7) ; Pyle v. Henderson, 65 W. Va. 39, 63 S.
E. 762 (19o9); Eastern Oil Co. v. Coulehan, 65 W. Va. 531, 64 S. E. 836
(19o9) ; American Window Glass Co. v. Williams 3o Ind. App. 685, 66 N. E.
912 (19o3); Indiana Nat. Gas Co. v. Grainger, 33 Ind. App. 559, 7o N. E
395 (19o4) ; Consumers' Gas Co. v. Worth, 163 Ind. 141, 71 N. E. 489 (19o4) ;
Consumers' Gas Co. v. Ink, 163 Ind. 174, 71 N. E. 477 (19o4); LaFayette
Gas Co. v. Kelsay, 164 Ind. 563, 74 N. E. 7 (19o5) ; Indiana Nat. Gas Co. v.
Beales, 166 Ind. 684, 76 N. E. 52o (19o6) ; Campbell v. Rock Oil Co., 15:
Fed. 191 (19o7).
* Consumers' Gas Co. v. Crystal Window Glass Co., 163 Ind. 19o, 70 N.
E. 366 (19o4) ; Consumers' Gas Co. v. Howard, 163 Ind. 17o, 71 N. E. 493
(19o4); Logansport Gas Co. v. Seegar, 165 Ind. I, 74 N. E. 5oo (19o5);
New American Oil Co. v. Wolff, 166 Ind. 7o4, 76 N. E. 255 (19o6) ; Puritan
Oil Co. v. Myers, 39 Ind. App. 695, 8o N. E. 851 (19o7); Consumers' Gas
Co. v. Ink, 168 Ind. 174, 71 N. E. 477 (1oo4) ; Consumers' Gas Co. v. Worth,
163 Ind. 141, 71 N. E. 489 (19o4); LaFayette Gas Co. v. Kelsay, 164 Ind.
563, 74 N. E. 7 (19o5) ; Indiana Nat. Gas Co. v. Beales, 166 Ind. 684, 76 N.
E. 52o (19o6) ; American Window Glass Co. v. Indiana Nat. Gas. Co., 37
Ind. App. 439, 76 N. E. 1oo6 (19o6) ; Campbell v. Rock Oil Co., 151 Fed.
191 (19o7) ; Wilson v. Reserve Gas Co., 78 W. Va. 329, 88 S. E. 1o75 (1916) ;
Johnson v. Armstrong, 81 W. Va. 399, 94 S. E. 753 (1918).
These cases were decided on the theory that where the lessee has the
right to hold the lease indefinitely by the payment of a rental, the courts
will imply a condition for the development of the lease, this to be put into
operation upon the lessor's demand for a well, within a reasonable time,
and failure on part of the lessee to comply.
In Bettman v. Harness, 42 W. Va. 433, 26 S. E. 271 (1896), the haben
dum clause read : ' To have and to hold the said premises for said pur
poses during and until the full term of two years next ensuing, and as much
longer as oil or gas is found in paying quantities, or the rental paid thereon.''
171
to provide that the lease should terminate at the end of a definite

term of reasonable duration unless production were found mean
while.
Having traced the evolution of the habendum clause to its
present form, a critical examination of the modern clause becomes
necessary. At the beginning there was no uniformity in the phrase
ology of the provision.10 Now, however, the habendum clause
In order to strike clown the right of the lessee to hold the lease beyond the
two-year term by the payment of rental, the court construed the word "or" as
"and," stating that the word "rental" as here used meant the royalty provided
for in the lease in the event of production and that the term did not refer to
the commutation money payable during the exploratory period.
To the same effect: Western Pa. Gas Co. v. George, 161 Pa. St. 47, 28
Atl. 1oo4 (1894) ; American Window Glass Co. v. Indiana Nat. Gas Co.,
supra.
" "To have and to hold the same unto the lessee for the term of two
years from date and as long thereafter as oil or gas is found in paying
quantities, not exceeding in the whole the term of twenty-five years." Brown
v. Fowler, 65 Ohio St. 5o7, 63 N. E. 76 (19o2).
"To have and to hold the said premises * * * for, during and until the
full term of fifteen years next ensuing, with the right of renewal thereafter
so long as oil shall continue to be found in sufficient quantities to operate."
Heintz v. Shortt, 149 Pa. St. 286, 24 Atl. 316 (1892).
"Three years and as long thereafter as oil or gas shall continue to be
found in paying quantities." McMillan v. Philadelphia Co., 159 Pa. St. 142,
28 Atl. 22o (1893).
"To have and to hold said premises for and during the term of one
year from this date * * * It is further agreed that should a paying produc
tion of o1l or gas be found on said land within said term of one year, the
lessor agrees to extend this lease from year to year so long as said produc
tion continues." Crawford v. Bellevue Gas Co., 183 Pa. St. 227, 38 Atl. 595
(1897).
"Ninety days from date and as much longer as oil or gas is found,
operated and produced in paying quantities." Detlor v. Holland, 57 Ohio
St. 492, 49 N. E. 69o (1898).
"Contract to commence at and run from date of signing, and terminate
whenever, in the assumption of the lessee, sufficient oil or gas cannot be
produced to use the same profitably for mercantile purposes." American
Steel Co. v. Tate, 33 Ind. App. 5o4, 71 N. E. 189 (19o4).
"Two years, or for such time as oil or gas shall be found in paying
quantities." lams v. Carnegie Nat. Gas Co., 194 Pa. St. 72, 45 Atl 54 (1899).
"This contract shall be deemed to commence from date of signing, and
shall be deemed to have terminated whenever natural gas ceases to be used
MICHIGAN LAW REVIEW

usually assumes the form originally set forth in this paper, the
only variation being that in some leases the grant will be for a
definite term of years and as long thereafter as oil or gas is found
in paying quantities, while in others the lease will be for a definite
terni of years and as long thereafter as oil or gas shall be produced
in paying quantities.17 The courts attribute the same legal effect
to these two phrases. For simplicity of statement the original or
definite term of the modern lease will be designated here as the
"exploratory period." Obviously the length of this period will de
pend upon the peculiar condition of the property at the time the
lease is made. If the land is in the neighborhood of production or
if other circumstances indicate that the tract is oil-bearing, it is the
natural disposition of the lessor to restrict the duration of the ex
ploratory period. Accordingly we find that in the developed fields
the duration of the fixed term ranges from sixty days in extreme
cases to two years.18 This means, of course, that a lease of this
character terminates within the short term set forth therein unless
generally for manufacturing purposes." Indianapolis Gas Co. v. Kibbey,
135 Ind. 357, 35 N. E. 392 (1893).
"Five years from date of lease and as much longer thereafter as oil or
gas is found therein or said premises developed or operated." Doornbos v.
Warwick, 1o.( Kan. 1o2, 177 Pac. 527 (1919).
"Five years from date of lease and as much longer as the rent for fail
ure to commence operations is paid, and as long after the commencement
of operations as said premises are operated for the production of oil and
gas.". Myers v. Carnahan, 61 W. Va. 414, 57 S. R. 134 (19o7).
"Five years from date of lease or as long as oil or gas shall be found
in paying quantities or the said second party or its assigns continue to
operate a pipeline over or through the land." Simon v. Northwestern Ohio
Gas Co., 12 Ohio Cir. Ct. Rep. 170 (1896).
"Jamison, v. Carnegie Nat. Gas. Co., 77 W. Va. 3o, 87 S. E. 451 (1915) ;
Core v. New York Pet. Co., 52 W. Va. 276, 43 S. E 128 (19o3) ; Balfour v.
Russell, 167 Pa. St. 287, 31 Atl. 57o (1895^ ; Hooks v. Forst, 165 Pa. 238, 30
Atl. 846 (1895); Smiley v. Gallagher, 164 Pa. St. 498, 3o Atl. 713 (1804);
Gibson v. Oliver, 158 Pa. 277, 27 Atl. 961 (1893) ; Marshall v. Forest Oil Co.,
198 Pa. 83, 47 Atl. 927 (1901) ; Dinsmoor v. Combs, 177 Ky. 74o, 198 S. W.
58 (1917) ; Jamison,Coal Co. v. Carnegie Gas Co., 77 W. Va. 3o, 87 S. K.
451 (1915).
In the following cases the leases involved were effective for a period
of sixty days from date and as long thereafter as oil or gas should be pro
duced :
"Simon v. Northwestern Gas Co. 12 Ohio Cir. Ct. Rep. 17o (1896):
THE LAW OF OIL AND CAS
73
the property is made productive within that time. On the other

hand, where wildcat territory is involved, the lessee will not agree
to a short exploratory period. In such circumstances it is usual
to provide for a lease effective for a term of five or ten years and
as long thereafter as oil or gas shall be found, the lessee having
the right to maintain the lease for the original term by the pay
ment of a periodical rental, and the alternative right to surrender
the instrument when the prospective value of the lauds covered
thereby no longer justifies the payment of the prescribed rental.
With these basic considerations in mind we arc brought to the
task of determining the legal effect of this provision in its several
phases. First of all it must be understood that we are not dealing
with the abandonment, forfeiture, or surrender of an oil and gas
lease at some period within the life of the instrument. All these
matters will be treated elsewhere. The sole question which con
cerns us here is the divestiture of the lessee's title by the expiration
of the term provided for in the lease. Before approaching the
broader aspects of the subject certain incidental questions should
be disposed of. Usually the extension clause assumes one of these
Duffield v. Russell, 19 Ohio Cir. Ct. Rep. 266 (1899) ; Murdock-West Co. v.
Logan, 69 Ohio St. 514, 69 N. E. 984 (19o4)Ninety days and as long thereafter: Evans v. Consumers' Gas Co.,
Ind. , 29 N, E. 398 (1891) ; Detlor v. Holland, 57 Ohio St. 492, 49 N. E.
69o (1898).
Six months and as long thereafter : Consumers' Gas Co. v. Worth, 163
Ind. 141, 71 N. E. 489 (19o4) ; Consumers' Gas Co. v. Ink, 168 Ind. 174, 71
N. E. 477 (19o4).
One year and as long thereafter: Crawford v Bollevue Gas Co., 183
Pa. St. 227, 38 Atl. 595 (1897) ; Noble v. Western Pa. Gas Co., 255 Pa. 512,
1oo Atl. 48o (1917) ; Updegraff v. Blue Creek Coal Co., 74 W. Va. 316, 81
S. E. 1o5o (1914) ; Horse Creek Coal Co. v. Trees, 75 W. Va. 559, 84 S. E.
376 (1915) ;.Paxton v. Benedum-'frees Oil Co., 8o W. Va. 187, 94 S. E. 472
(1917) ; Ohio Fuel Oil Co. v. Greenleaf, W. Va. , 99 S. E. 274 (1919) :
Harrington v. Wood, 6 Ohio Cir. Ct. Rep. 326 (1892) ; Chaney v. Ohio Oil
Co., 32 Ind. App. 193, 69 N. E. 477 (19o4).
Two years and as long thereafter: Midland Gas Co. v. Jefferson County
Gas Co., 237 Pa. 6o2, 85 Atl. 853 (1912); Gillespie v. American Zinc Co.,
247 Pa. 222, o3 Atl. 272 (1915) ; Harness v. Eastern Oil Co., 49 W. Va. 232,
38 S. E. 662 (19o1) ; Core v. New York Pet. Co., 52 W. Va. 27, 43 S. E. 128
(19o3) ; Petty v. United Fuel Co., 76 W Va. 2O8, 85 S. E. 523 (191'0 ; Lawson v. Kirchner, 5o W. Va. 344, 4o S. E. 344 (19o1).
174
MICHIGAN LAW REVIEW
forms : "As long thereafter as oil or gas is found in paying quanti

ties," "as long thereafter as oil or gas is produced in paying quanti
ties," "as long thereafter as oil or gas is produced." The rule is
settled that the two clauses first mentioned are identical in their
legal effect.1' On the other hand the early decisions in West Vir
ginia intimate a distinction between the first two clauses and the
last, which omits the phrase "paying quantities."-0 Later, however,
die West Virginia court said : " 'Produced', 'produced in paying
quantities', 'found in paying quantities' must mean about the same
thing, else substance will be subordinated to shadow or mere tech
nicality."31 It is held that the "thereafter" clause determines the
character of the estate created by an oil and gas lease.23 On prin
ciple, however, the clause simply enlarges or extends an estate al
ready created. This conclusion is also supported by authority.2' In
New York the court declares that the words "as long thereafter as
oil or gas shall be found" are words of limitation.24 The validity
of the clause under consideration is seldom challenged. In a Kan
sas case the contention was made that the "thereafter" clause ren" South Penn Oil Co. v. Snodgrass, 71 W. Va. 438, 76 S. E. 961 (1912) ;
Murdock-West Co. v. Logan, 69 Ohio St. 514, 69 N. E. 984 (19o4) ; Young
v. Forest Oil Co., 194 Pa. St. 243, 45 Atl. 121 (1899).
"Eastern Oil Co. v. Coulehan, 65 W. Va. 531, 64 S. E. 836 (19o9);
McGraw Oil Co. v. Kennedy, 65 W. Va. 595, 64 S. E. 1o27 (19o9). Contra:
Gillespie v. Ohio Oil Co., 26o Ill. 169, 1o2 N. E. 1o43 (1913).
" South Penn Oil Co. v. Snodgrass, supra. For an interesting discussion
of the meaning of the term "found" as here used, see Smith v. Hickman, 14
Pa. Super. Ct. Rep. 46 (19oo).
"Rynd v. Rynd Farm Oil Co., 63 Pa. St. 397 (1869). Here a similar
provision was involved and the lessee was producing oil in paying quantities.
It was held that the clause created a perpetual license. In Bruner v. Hicks,
23o Ill. 556, 82 N. E. 888 (19o7), it was held that the use of the clause "as
long thereafter as oil or gas shall be found" had the effect of vesting the
lessee with a freehold interest because of the indefinite and indeterminate
period provided for in the grant.
"South Penn Oil. Co. v. Snodgrass, supra; Barbour, Stedman Co. v.
Tompkins, 81 W. Va. 116, 93 S. E. 1o38 (1917) ; Chaney v. Ohio & Indiana
Oil Co., 32 Ind. App. 193, 69 N. E. 477 (19o4) ; Johnson v. Armstrong, 81
W. Va. 399, 94 S. E. 753 (1918) ; Cassell v. Crothers, 193 Pa. St. 359, 44 Atl.
446 (1899).
" Eaton v. Alleghany Gas Co., 122 N. Y. 416, 25 N. E. 981 (189o) ; Conkling v. Krandusky, 112 N. Y. Supp. 13 (19o8).
175
dered the lease void on the ground of uncertainty. The court, in

overruling this objection, said: "We have not been referred to any
adjudicated cases involving the validity of gas or oil contracts like
the one at bar where le"ases containing such stipulations have been
held void for uncertainty." The only other case where the validity
of the oil and gas lease has been assailed on account of the duration
of the term is where it is contended that the lease violates the rule
against perpetuities. On principle this assault is justifiable only
in those jurisdictions which hold that no estate vests until discov
ery, or that a new and additional estate vests upon discovery.
Moreover, the doctrine if sustainable there would be limited to the
so-called "no term" lease which the lessee has the right to maintain
indefinitely by the payment of a rental, or to a lease of fixed term
extending beyond the period of twenty-one years. In this respect
the phrase "as long thereafter as oil or gas shall be found in paying
quantities" is not involved. Even in the case of a "no term" lease
it is held that the instrument does not violate the rule against per
petuities because the lessor may refuse the rental, demand a well,
and forfeit the lease if the well is not drilled within a reasonable
time.2* No American court has held that an oil and gas lease is
invalid merely for the reason that it is effective for a definite term
and as long thereafter as oil or gas shall be found.
Dismissing these preliminary matters, the principal question
involved in the present inquiry may be thus stated. When and
under what conditions does a lease of this character terminate?
As a practical matter the modern habendum clause is important in
the following circumstances: First, where the lessee fails to de
velop the property in any manner during the exploratory period ;
second, when the well or wells drilled by him during that time are
"Dickey v. Coffeyville Brick Co., 69 Kan. 1o6, 76 Pac. 398 (19o4). But
see United Fuel Supply Co. v. Volcanic Oil & Gas Co., 2o Ont. Weekly Rep.
78, where a lease of this type was involved, and where the court, denomi
nating the instrument an option, held that it was invalid on the ground of
remoteness.
"Wilson v. Reserve Gas. Co., 78 W. Va. 3*9, 88 S. E. 1o75 (1916) ; John
son v. Armstrong, 81 W. Va. 3o9, 94 S. E. 753 (1918). For an interesting
discussion of this question by Professor James W. Simonson, of the West
Virginia University, see 25 West V1rg1n1a Law Quarterly, p. 3o; also note
relating to the same subject, 25 West V1rg1n1a Law Quarterly, p. 236.
176
MICHIGAN LAW REVIEW
non-productive; third, when the well or wells drilled during the

exploratory period cease to produce before the end of the definite
term. Ignoring the possibility of the forfeiture, abandonment, or
surrender of the grant within the definite term, the question upon
principle is susceptible of but one answer. The plain intent of the
clause is that the lease shall terminate absolutely upon the happen
ing of any one of the three contingencies just mentioned. Such,
precisely, is the universal holding of the courts.27 It is equally
" Conkling v. Krandusky, 112 N Y. Supp. 13; Eaton v. Alleghany Gas
Co., 122 N. Y. 416, 25 N. E. 981 (189o) ; Shellar v. Shivers, 171 Pa. St. 569,
33 Atl. 95 (1895); Riddle v. Mellon, 147 Pa. St. 3o, 23 Atl. 241 (1892);
Western Pa. Gas Co. v. George, 161 Pa. St. 47, 28 Atl. 1oo4 (1894) ; Cassell
v. Crothers, 193 Pa. St. 359, 44 Atl. 446 (1899) ; Glasgow v. Charticrs Oil
Co., 152 Pa. St. 48, 25 Atl. 232 (1892) ; Double v. Union Light & Heat Co.,
172 Pa. St. 388, 33 Atl. 694 (1896) ; Young v. Forest Oil Co., 194 Pa. St.
243, 45 Atl. 121 (1899) ; Smith v. Hickman, 14 Pa. Super. Ct. Rep. 46 (19oo) ;
Balfour v. Russell, 167 Pa. St. 287, 31 Atl. 57o (1895) ; Sumtnerville v.
Apollo Gas Co., 2o7 Pa. 334, 56 Atl. 876 (19o4) ; Foster v. Elk Fork Oil Co.,
9o Fed. 178 (1898); Barnsdall v. Boley, 119 Fed. 191 (19o2); Bettman v.
Harness, 42 W. Va. 433, 26 S. E. 271 (1896) ; McGraw Oil Co. v. Kennedy
65 W. Va. 595, 64 S. E. 1o27 (19oo); Eastern Oil Co. v. Coulehan, 65 W.
Va. 531, 64 S. E. 836 (19o9); Barbour, Stedman Co. v. Tompkins, 81 W.
Va. 116, 93 S. E. 1o38 (1917); Ohio Fuel Oil Co. v. Greenleaf, W. Va.
, 99 S. E. 274 (1919); Ash Grove Lime Co. v. Chanute Brick Co., 1oo
Kan. 547, 164 Pac. 1o87 (1917) ; Baldwin v. Blue Stem Oil Co., Kan. .
189 Pac. 92o (192o); Buffalo Valley Oil Co. v. Jones, 75 Kan. 18, 83 Pac.
537 (19o7) : Collins v. Mt. Pleasant Oil Co., 85 Kan. 483, 118 Pac. 54 (1911) ;
Roach v. Junction Oil Co., 75 Okla. 22o, 179 Pac. 934 (1919) ; Strange v.
Hicks, 11 Okla. App. 369, 188 Pac. 347 (192o) ; Dickey v. Coffeyvillc Brick
Co., 69 Kan. 1o6, 76 Pac. 398 (19o4) ; Simon v. Northwestern Ohio Gas Co.,
12 Ohio Cir. Ct. Rep. 17o (1896) ; Brown v. Fowler, 65 Ohio St. 5o7, 63 N.
E. 76 (19o2) ; Murdock-West Co. v. Logan, 69 Ohio St. 514 69 N. E. 984
(19o4) ; Dctlor v. Holland, 57 Ohio St. 492, 49 N. E. 69o (1898) ; North
western Ohio Nat. Gas Co. v. Whitacre, 3o C. C. Rep. 737 (1892); North
western Ohio Gas Co. v. Tiffin, 59 Ohio St. 42o, 54 N. E. 77 (1899) ; Poe v.
Ulrey, 233 Ill. 56, 84 N. E. 46 (19o8) ; Gillespie v. Ohio Oil Co., 26o Ill. 16(J,
1o2 N. E. 1o43 (1913) ; Chaney v. Ohio Oil Co., 32 Ind. App. 193, 69 N. E.
477 (19o4); Indiana Nat. Gas Co. v. Beales, 166 Ind. 684, 74 N. E. 551
(19o5) : American Window Glass Co. v. Indiana Nat. Gas Co., 37 Ind. App.
439, 76 N. E. 1oo6 (19o6) ; Indiana \rat. Gas Co. v. Pierce, 34 Ind. App. 523,
68 N. E. 691 (19o3). 73 N E. 194 (19o5) ; Nabors v. Producers' Oil Co., 14o
La. 985. 74 So. 527 (1917); Provvant v. Sealy, 11 Okla. App. 1o, 187 Pac.
235 (192o); Zeller v. Book, 7 Ohio Cir. Ct. Rep. (N.S.) 429 (19o5); Hoi
177
clear both upon principle and under the authorities just cited, that
if the lessee is producing oil or gas in paying quantities at the ex
piration of the definite term, the lease shall remain in force as long
as that condition continues. Thus, in Brown v. Fowler2* it is said :
"This clause means that the term of the lease is limited to two
years (the definite or exploratory term), but that if within the
two years oil or gas shall be found, then the lease shall run as much
longer thereafter as oil or gas shall be found in paying quantities ;
but if no oil or gas shall be found within the two years, the lease
shall, at the end of the two years, terminate, not by forfeiture, but
by expiration of terms; and after the expiration of said two years
no further drilling can be done under the lease." In an Indiana
case it is said : "Such a clause will be construed as meaning that if
the term is enlarged it must be by the production of gas or oil in paying quantities within the term specified ; if such a contingency does
not happen then the lease expires and is of no avail to either
party."29 In Murdock-West Co. v. Logan* the court observes :
"In order to continue their lease beyond the stipulated time it was
necessary for the lessees to find oil in paying quantities. For this
purpose it was not sufficient to complete a well having some indica
tions of oil or a well which might be developed into a well pro
ducing oil in paying quantities, but the lessees must actually find
oil in paying quantities, and this is the same as obtaining and pro
ducing it in paying quantities."
Thus far the decisions are in complete harmony, but there are
other situations of almost equal importance which evidence a cer
tain divergence in the adjudicated cases. The general rule is this.
Where the fixed term has expired and where the lessee seeks to
hold the leased premises under the extension clause he not only
must be engaged in producing oil or gas but the production must be
in paying quantities.30 This necessitates that we ascertain the exact
meaning of the phrase "paying quantities" as employed here. In
lister v. Vandergrift. 12 Ohio Cir. Ct. Rep. (N.S.) 586 (1892) ; Hazel Green
Oil Co. v. Collier, 33 Ky. L. Rep. 495, 11o S. W. 343 (19o8); American
Window Glass Co. v. Williams, 3o Ind. App. 685, 66 N. E. 912 09<>3)" Brown v. Fowler, supra.
" Chaney v. Ohio & Indiana Oil Co., supra.
Murdock-West Co. v. Logan, supra.
" See cases cited under note 27.
178
MICHIGAN LAW REVIEW
the law of oil and gas the term has two distinct meanings. It fre
quently happens that a lessee will agree to proceed with the drilling
of the property as long as the wells encountered produce oil in pay
ing quantities. Then again there is always an implied condition or
covenant in the lease which requires the lessee to offset paying wells
on adjoining lands. In either case the rule is settled that the well
must be of such capacity as to reasonably insure a profit over the
original cost of drilling and equipping the well, and also a profit over
the expense of operation. Tn other words, two factors are taken into
consideration: first, the initial cost of the well, and secondly, the
cost of operation.31 On the other hand where the term appears in
the habendum clause or in any other provision establishing the dura
tion of the lease, the initial cost of the well is disregarded and the
lessee has the right to hold the lease as long as the well or wells pay
a profit, however small, over the cost of operation.92 In Young v.
"Osborn v. Finkelstein, Ind. , 126 N. E. 11 (192o) ; Ohio Fuel Sup
ply Co. v. Shilling, Ohio , 127 N. E. 873 (102o) ; Hart v. Standard Oil
Co., La. , 84 So. 169 (192o) ; Aycock v. Paraffine Oil Co., Tex. ,
21o S. W. 851 (1919); Ardizzone v. Archer, Okla. , 178 Pac. 263
(1919) ; Pelham Petroleum Co. v. North, Okla. , 188 Pac. 1o69 (192o) ;
Eastern Oil Co. v. Beatty, Okla. , 177 Pac. 1o4 (1918) ; Manhattan Oil
Co. v. Carrell, 164 Ind. 526, 73 N. E. 1o84 (19o5).
In Montgomery v. Hickok, 188 lll. App. 348 (1914), however, it is held
that where a sum of money was payable upon the completion of a paying
well, the cost of drilling and equipping the well is not to be taken into con
sideration.
But where the parties define the term "paying quantities" as meaning a
well of a designated capacity, this definition must control. McLean v. Kishi
(Tex Civ. App.), 173 S. W. 5o2 (1915).
"Cassell v. Crothers, 193 Pa. St. 359, 44 Atl. 446 (18o9); Yotmg v
Forest Oil Co., 194 Pa. St. 243, 45 Atl 121 (1899); South Penn Oil Co. v.
Snodgrass, 71 W. Va. 438, 76 S. E. 961 ("1912); Barbour, Stcdman Co. v.
Tompkins, 81 W. Va. 116, 93 S. E. 1o38 (1917) ; McGraw Oil Co. v. Ken
nedy, 65 W. Va. 595, 64 S. E. 1o27 (19o9) ; Eastern Oil Co. v. Coulehan, 65
W. Va. 531, 64 S. E. 836 (19o9) ; Jennings v. Carbon Co., 73 W. Va. 215,
8o S. E. 368 (1913) ; Dickey v. Coffeyville Vitrified Brick Co., 69 Kan. 1o6,
76 Pac. 398 (19o4) ; Pelham Petroleum Co. v. North, supra; Barnsdall v.
Boley, 119 Fed. 191 (19o2); Lowther Oil Co. v. Miller-Sibley Oil Co., 53
W. Va. 5o1, 44 S. E. 433 (19o3) ; Hollister v. Vandergrift, 12 Ohio Cir. Ct.
Rep. (N. S.) 586 (1892); Zeller v. Book, 7 Ohio Cir. Ct. Rep. (N.S.) 429
C10o5) ; HerrinRton v. Wood, fi Ohio Cir. Ct. Rep. 326 (1892). In deter
mining whether a well is producing oil or gas in paying quantities in
179
Forest Oil Company the court said: "But if the well, being down,
pays a profit, even a small one, over the operating expenses, it is
producing in paying quantities, although it may never repay its
cost, and the operations as a whole may result in a loss. Few wells
except the very largest repay their cost under a considerable time.
Many never do, but that is no reason why the first loss should not
be reduced by profits, however small, in continuing to operate."
This quotation furnishes the test to determine when a lease of this
character expires. If the production is sufficient to yield a profit,
however small, over the daily operating expenses, the lease remains
in force. On the other hand the lease terminates when this condition
no longer obtains. While this is clearly the general rule when the
"thereafter" clause includes the phrase "in paying quantities,"
there is a conflict on the question where these words are omitted.
As heretofore stated, the courts of Pennsylvania, West Virginia
and Ohio apparently hold that there is no difference in the legal
effect of a clause containing the phrase "produced in paying quan
tities" and one limited to the use of the word "produced." The
Supreme Court of Illinois, however, draws a distinction between
the two provisions.83 Here the lease involved was for five years
and "so long thereafter as oil or gas is produced thereon." A pro
ducing well was drilled within the definite term, but it was not
a paying well in the sense already indicated. The court said : "Oil
was produced continuously after the drilling of the well. It is true
that the quantity produced was so small as to make the venture unthe sense here used, the judgment of the lessee, if exercised in good
faith, is given great, if not controlling, weight. Barbour v. Tompkins,
supra; McGraw Oil Co. v. Kennedy, supra; Bay State Pet. Co v. South
Penn Lubricating Co., 121 Ky. 637, 87 S. W. 11o2 (19o5); Summerville v.
Apollo Gas Co., 2o7 Pa. 334, 56 Atl. 876 (19o4) ; Lowther Oil Co. v. MillerSibley Co., supra; Urpman v. Lowther Oil Co., 53 W. Va. 5o1, 44 S. E. 43.3
( 19o3) ; Zeller v. Book, supra; Young v. Forest Oil Co., 194 Pa. St. 243, 43
Atl. 121 (1899).
"Gillespie v. Ohio Oil Co., 26o Ill. 169, 1o2 N. E. 1o43 (1913). In South
Penn Oil Co. v. Snodgrass, 71 W. Va. 438, 76 S. E. 961 (1912), the "there
after" clause was restricted to the word "produced." In criticizing the hold
ing of the Court of Appeals of West Virginia in this case, Professor Simonton observes that this decision should have been founded upon the principle
announced in -the Gillespie case. "Extension of Term of Oil Lease through
Discovery of Oil in less than 'Paying Quantities.' " West V1rg1n1a Law
Quarterly, Vol. 25, p. 79.
MICHIGAN LAW REVIEW

profitable, but the strict letter of the lease was complied with, and
it had not expired by its own terms." Under this holding a lease of
this class remains in force as long as a well produces oil, even
though the oil is being produced at a loss to the lessee. This
conclusion is sound upon principle. If the lessor intends that the
lease shall terminate when it ceases to produce oil in paying quan
tities, such intention should be manifested by a positive stipulation
to that effect.
But the notable exception to the prevailing rule that a lease of
this type terminates at the end of the exploratory period unless at
that time the lessee is producing oil in paying quantities is found
in West Virginia. In South Penn Oil Co. v. Snodgrass,** the lease
was for a term of ten years and as long thereafter as oil or gas
should be produced, the phrase "paying quantities" being omitted.
In other words the lease was of the same character as the one con
sidered by the Supreme Court of Illinois in the Gillespie case.
Shortly before the expiration of the definite term the lessee drilled
an oil well, but the well was not producing in paying quantities at
the expiration of the stated term, or at any time thereafter. The
lessee, however, continued to pump the well at intervals, and there
was no evidence of an intention on his part to abandon the well.
The fixed term expired December 14, 19o9. In the meanwhile a
paying well came in on adjacent lands, and on the 18th day of De
cember, 19o9, which was after the expiration of the specified term,
the lessee made location for a second well on the leased premises,
this being an offset to the paying well on the adjoining tract. The
statement of the case implies that it was the bona fide intention of
the lessee to proceed with the drilling of the second well. The day
the location for this well was made, however, the lessor executed a
second lease to third parties on the theory that the prior lease had
terminated through the failure of the lessee to produce oil or gas in
paying quantities at the expiration of the exploratory period. The
lessor and the junior lessee sought to oust the senior lessee, who
thereupon brought this action in equity to cancel the second lease as
a cloud on his title, and to restrain the lessor and the subsequent
lessee from interfering with his possession under the former lease.
The court stated the question in this wise : "Whether the mere dis
covery of oil within the term created by the lease (a) without pro** South Penn Oil Co. v. Snodgrass, supra.
TUB LAW OF OIL AND GAS
181
duction thereof, or (b) in quantity too slight for profitable produc

tion suffices to extend the term beyond the period of ten years un
der the phrase "as long thereafter as oil or gas or either of them
is produced therefrom by the party of the second part." Mani
festly, this question was susceptible of an affirmative answer upon
the principle that the extension clause was dependent upon the
mere production of oil, and not upon the production of oil in pay
ing quantities. But the court expressly rejected this view of the
case, and founded its decision upon broader ground. After con
sidering the reasoning of certain decisions which hold that a lease of
this type terminates absolutely at the expiration of the specific
term unless the lessee is producing oil or gas in paying quantities,"
the court declared that these cases accorded too much force and ef
fect to the letter of the habendum clause, and did violence to the
spirit of the entire contract. The court continued: "The main
purpose of the lessor is to obtain diligent and skillful effort to make
his mines yield him a profit after the fixed term as well as within it.
If the lessee, having discovered minerals within the term or con
temporaneously with the expiration thereof, continues operations
with diligence, he thereby obviously executes the chief purpose of
the lease, and would be clearly within his rights if within the term.
To regard it as compliance within the prescribed condition after
the fixed term would be entirely consistent with the idea of exten
sion or continuation of the tenancy, which is undoubtedly the major
office or. function of the clause. May we not, therefore, say the
qualifying clause 'as oil or gas is produced' really means 'as long as
the premises are diligently and efficiently operated, provided the
minerals shall have been discovered within the fixed term', which
construction harmonizes the more completely and naturally with
the manifest purpose of the parties as indicated by the other pro
visions of the lease, their situation, and the surrounding circum
stances." Viewing the question in this light, the court then held
that if the lessee discovers oil within the fixed term and if at the
end of such term he is continuing his search diligently, the lease re
mains in force as long as he perseveres in his effort to find oil or
gas. When this decision is given practical application it would sus"Cassell v. Crothers, 193 Pa. St. 359, 44 Atl. 446 (1899); MurdockWest Co. v. Logan, 69 Ohio St. 514, 69 N. E. 984 (19o4) ; Barnsdall v. Boley,
119 Fed. 191 (19o2).
182
MICHIGAN LAW REVIEW
tain a lease in either of the following situations : First, where the

lessee, at the expiration of the definite term, is making no effort to
produce oil from the discovery well but is diligently engaged in the
drilling of another well or in operations leading to that result ; sec
ondly, where the lessee, at the expiration of the definite term, is
producing oil from the discovery well but not in paying quantities,
and where, at the same time, he is engaged in further operations of
the character just alluded to. This decision is contrary to the over
whelming weight of authority upon the question. Moreover, it is
utterly unsound in principle. In a brief dissenting opinion Judge
Robinson said : "This decision makes the contract between the par
ties to be other than that which they must have contemplated when
the lease was executed." This observation strikes at the heart of
the majority opinion. The fundamental error evident here lies in
the fact that the court confused the function of the drilling clause
with the office of the habendum clause. The sole office of the ha
bendum clause is to fix the duration of the lease. On the other
hand, different provisions determine the measure of diligence to be
exercised by the lessee in the development of the property. As a
rule the obligation to drill during the specific term is set forth ex
pressly. Where this is not the case, it arises by legal implication.
After the expiration of the fixed term and where the lease is held
by production under the "thereafter" clause, the obligation for
further drilling is usually implied. In either event the right to drill
is restricted to the term of the lease as established by the habendum
clause. Where a lease is for a definite term of years and as long
thereafter as oil or gas is produced in paying quantities, the plain
intent of the contract is that the lease shall terminate at the end of
the definite term unless oil is being produced in the prescribed quan
tity. Where the lease is for a definite term of years and as long
thereafter as oil or gas is produced, it is equally clear that the lease
shall terminate at the end of the definite term unless oil or gas is
being produced in some quantity. In the latter situation the lessee
would not be permitted to hold the lease indefinitely by the opera
tion of a nonpaying well, as the law would imply an obligation re
quiring the lessee to conduct further operations. In brief, it is just
as reasonable to say that a lease of fixed duration without the
"thereafter" clause will remain in force after the expiration of the
stipulated term if drilling operations are then in progress, as it is
183
to say that such operations would extend a lease of the character

under discussion here. Such, precisely, is the view of Professor
Simonton, of the University of West Virginia, in his criticism
of this decision.39 Notwithstanding the obvious posture of this
question upon principle and authority, the Supreme Court of Ap
peals of West Virginia, in a later decision, adheres to the doctrine
of the Snodgrass case.31
Remembering that the lessee in the Snodgrass case was making
some effort to produce oil at the expiration of the definite term and
several days thereafter made a location for a second well which he
intended to drill until his possession was threatened by the lessor
and the junior lessee, this expression from the opinion is pertinent:
"Is the situation here such as may occur under any oil and gas
lease, drawn as this one was? If so, both parties must have intend
ed an equitable and just result under the circumstances, if the terms
used will permit it, for they must be deemed to have foreseen and
contemplated it. It is matter of common knowledge that no man
can estimate the exact time within which a well can be completed,
and that delays due to accidents, trivial and grave, and other causes
beyond the possibility of accurate anticipation, will occur. Ad
herence to the strict letter of the extension clause would make no
allowance for any of these, and inflict disastrous losses upon dili
gent and honest lessees in many instances,a consequence plainly
not within the intent of either party." This deduction is wholly un
warranted. A lease of this type by express and positive provision
contemplates the enlargement of the specific term upon one of two
clearly defined conditions: First, the actual production of oil in
paying quantities at the expiration of the exploratory period, or,
secondly, the actual production of oil or gas in some quantity at
that time. Only by doing violence to the explicit provisions of the
contract can it be said that a mere discovery before the expiration
of the limited term and drilling operations at the time of such ex
piration shall have the effect of carrying the lease as long as oper
ations are carried on. It is true that the drilling of an oil well is at
tended by such uncertainty that no one can anticipate the length of
time which will be required to complete the undertaking. But the
answer to the situation is readily apparent. The lessee must com" West V1rg1n1a Law Quarterw, Vol. 25, p. 79.
"Ohio Fuel Oil Co. v. Greenleaf, W. Va. , 99 S. E. 274 (1919).
!84
MICHIGAN LAW REVIEW
mence his well in ample time to enable him to complete it within the
definite term of the lease, or he must provide against the contin
gency which the Court describes by an appropriate term in his con
tract.38 The latter alternative is becoming an established custom
in the business. In Oklahoma, Kansas, and Texas the following
habendum clause is very generally employed:
"To have and to hold all and singular the rights and privi
leges granted hereunder to and unto the lessee, its succes
sors and assigns, for the term of five years from date hereof
(a) and as much longer thereafter as oil or gas shall be
produced therefrom, (b) or royalties paid hereunder, (c) or
as much longer thereafter as the lessee in good faith shall
conduct drilling operations thereon, and should production
result from such operations this lease shall remain in force
as long as oil or gas shall be produced."
It is to be noticed that the first phrase is identical with the one ap
pearing in the lease considered in the Snodgrass case, that is. the
words "in paying quantities" are omitted. The second provision is
designed to protect the lessee in this situation. Frequently a well
producing gas will be found during the fixed term, and this will be
the only production developed. Many times there will be no mar
ket for the gas, which necessitates the shutting in of the well. As
the ordinary lease contemplates actual production for the enlarge
ment of the term, there might be some question about the lessee's
right to hold the lease without producing the gas and yielding the
lessor his royalty. Under this provision the lessee has the right to
hold his lease after the fixed term by the payment of the gas royalty
" In Baldwin v. Blue Stem Oil Co., Kan. , 189 Pac. 92o (1gao), the
lessee commenced a well in ample time to enable him to complete it before
the expiration of the fixed term, but the completion of the well was inter
fered with by weather conditions and a shortage of water. Holding that
this was not a defense, and that the lessee should have protected himself
against these contingencies by a proper provision in the lease, the court said :
"The lessee Y * * contracted positively that he would do certain work within
a certain time, and that after that time his rights in the premises should
cease unless cil or gas should be produced from the land. Neither was pro
duced." Upon the basis of this holding the lease was cancelled. McLean v.
Kishi (Tc\-. Civ. App.), 173 S. W. 5o2 (1915).
185
stipulated in the instrument, whether the gas is produced and mar

keted or not. This precise question will be treated at greater length
later. The third condition for extension meets the doctrine of the
Snodgrass case squarely. There, upon the ground of legal impli
cation, it was decided that development in process at the termina
tion of the exploratory period would hold the lease as long as op
erations were continued. Here, by express stipulation, the lessee
has that right. The validity of this third condition is upheld in a
recent Oklahoma case.38 Here the habendum clause assumed this
form : "To have and to hold the same for and during the term of
three years from the date hereof, and as much longer thereafter as
oil or gas is found therein, or said premises developed or operated."
The lessee was not producing oil or gas at the end of the three-year
term. Shortly before this period expired he commenced the drill
ing of a well on the leased premises which was in process of com
pletion at the time the definite term ended. The drilling of this well
was proceeded with until production in paying quantities was found.
In the meanwhile, however, the lessor executed another lease to a
third party on the theory that the prior lease had expired at the
end of the three-year term. The senior lessee brought an action
in equity to sustain his title. It was urged here that the phrase "or
premises developed or operated'' added nothing to the legal effect
of the habendum clause, that this expression meant that the prem
ises must be developed or operated within the three-year term
alone, and that production was the only circumstance which would
carry the lease beyond the definite term. It must be conceded that
these words are not free from ambiguity. At any rate the alter
native right of extension lacked the clearness and precision of
statement which characterizes the broader habendum clause first
quoted. Notwithstanding this situation, the court found that the
partes must have had some definite purpose in view when they em
ployed the phrase "premises developed or operated" in the dis
junctive; that accordingly there were two conditions for the en
largement of the term, first, actual production at the end of the
three-year period, or secondly, development work in progress at
that time. In as much as the lessee had complied with the second
condition for the enlargement of the term, the title of the senior
lessee was upheld. Other clauses of similar import appear in the
"Prowant v. Sealy, 11 Okla. App. 1o, 187 Pac. 235 (192o).
MICHIGAN LAW REVIEW

books.40 Finally, then, where a lessee intends to hold his lease be
yond the definite term by drilling operations alone, an appropriate
provision to that effect should be embodied in the lease.
Having considered the major questions which are involved in our.
present inquiry, attention should be directed to certain matters of
incidental concern. It some times happens that a producing well is
completed on or about the last day of the fixed term. Therefore it
is important to ascertain the exact duration of the exploratory
period. In determining this question it is held that the day the
lease is dated must be excluded from the term.41 Where a lease
covers the oil deposits alone, the finding of natural gas within the
exploratory period will not extend the term.42 Upon the principle
that the rights of the lessee are indivisible, and where the lease
covers several different tracts of land, it is decided that the finding
of oil or gas in paying quantities on any one of the tracts covered
by the lease extends the term as to all tracts embraced within the
lease.48 In Stalil v. VanVleck** the lease was for five years and
as long thereafter as oil or gas should be produced in paying quan"Doornbos v. Warwick. 1o4 Kan. 1o2, 177 Pac. 527 (1919) : "Five years
from date of lease and as much longer thereafter as oil or gas is found
therein or said premises developed or operated."
Myers v. Carnahan, 61 W. Va. 414, 57 S. E. 134 (19o7): "Five years
from date of lease and as much longer as the rent for failure to commence
operations is paid, and as long after the commencement of operations as said
premises are operated for the production of oil and gas."
Simon v. Northwestern Ohio Gas Co., 12 Ohio Cir. Ct. Rep. 17o (1896) :
"Five years from date of lease or as long as oil or gas shall be found in
paying quantities or the said second party or its assigns continue to operate
a pipeline over or through the land."
"Eastern Oil Co. v. Coulehan, 65 W. Va. 531, 64 S. E. 836 (19o9).
"Truby v. Palmer; 3 Pa. Super. Ct. Cas. 156, 6 Atl. 74 (1886); Allen
v. Palmer, 136 Pa. St. 556, 2o Atl. 516 (189o).
"Pierce Oil Corporation v. Schacht, Okla. , 181 Pac. 731 (1919) ;
Harness v. Eastern Oil Co., 49 W. Va. 232, 38 S. E. 662 (19o1) ; Lynch v.
Davis, 79 W. Va. 437, 92 S. E. 427 (1917) ; South Penn Oil Co. v. Snodgrass,
71 W. Va. 438, 76 S. E. 961 (1912) ; Brewster v. Lanyon Zinc Co., 14o Fed.
8o1 (19o5) ; Gypsy Oil Co. v. Cover, Okla. , 189 Pac. 54o (192o) ;
Kabors v. Producers' Oil Co., 14o La. 985, 74 So. 527 (1917).
"Stahl v. Van Vleck, 53 Ohio St. 136, 41 N E. 35 (1895)In Turner v. Seep, 167 Fed. 646 (19o9), the lessee had a period of sixty
days from the termination of the lease within which to remove all material
from the lease. The lease was cancelled, and in the decree the lessee was
187
tities. During the fixed term the lessee commenced a well in ample
time to complete it before the expiration of the term. The lessor,
claiming a forfeiture, obtained an injunction restraining the lessee
from further operations. While the writ was in effect the fixed
term of the lease expired. Upon appeal the writ was discharged,
and the court held that the lessee, at the close of the litigation, was
entitled to as much time to complete his well as still remained of
his term when the injunction was issued. Where it is stated that a
lease shall remain in force for the same length of time as a lease on
adjoining premises, it is held that the term is made definite and
certain by reference.40 Even though the completion of a well with
in the fixed term may be prevented by a shortage of water, weather
conditions, or other unexpected happenings, the lease expires at
the end of the exploratory period unless, contemporaneously there
with, oil or gas is being produced in paying quantities.48 On the
other hand, if the delay in the completion of the well within the
fixed term is attributable to the conduct of the lessor, he may be
estopped to assert that the lease has terminated.47 Where a "no
term" lease provided that it should remain in force as long as oil
or gas was produced and where the lessee drilled a nonpaying well,
it was held that he had a reasonable time from the completion of the
well to resume the work of development.48 If a lessee before the
expiration of the specific term finds gas in paying quantities in a
shallow sand he may drill the well to a deeper sand, although the
operation extends beyond the definite terms of the lease. Then if
given sixty days to remove his property. See also Midland Oil Co. v. Turner,
179 Fed. 74 (191o).
"Butler v City of Iola, 1oo Kan. 11l, 163 Pac. 652 (1917).
"Baldwin v. Blue Stem Oil Co., Kan. , 189 Pac. 921 (192o).
The same principle is announced in Diehl v. Ohio Oil Co., 12 Ohio Cir.
Ct. Rep. (N. S.) 539 (1892), although here the lessee was given the right
to complete the well, together with the use of an acre of ground for that
purpose, and the court held that if production were found the lessee should
account for the royalty therefrom. This decision was based upon equitable
considerations, and is unsound in principle.
" Riddle v. Mellon, 147 Pa. St. 3o. 23 All. 241 1892) ; Ohio Fuel Oil Co.
v. Greenleaf, W. Va. , 99 S. E. 274 (1919) ; Eastern Oil Co. v. Coulehan, 65 W. Va. 531, 64 S. E. 836 (19o9) ; Strange v. Hicks, 11 Okla. App.
369, 188 Pac. 347 (192o). Herrington v. Wood, 6 Ohio Cir. Ct. Rep. 326
(1892).
"Diehl v. Ohio Oil Co., 12 Ohio Cir. Ct. Rep. (N. S.) 539 (1892).
MICHIGAN LAW REVIEW

he find production in the deeper sand his lease remains in force as
long as oil or gas is produced. If the well proves nonproductive
in the deeper sand and the lessee then proceeds to utilize the gas
from the shallow sand, the extension clause becomes effective.49
An important question which remains is this: If a lessee com
pletes a well capable of producing oil or gas in paying quantities
and then refrains from operating the well, may he still hold his
lease under the usual "thereafter" clause? The answer to this
query depends upon whether the well produces oil or gas. An oil
well differs from a gas well in the following particulars. Ordi
narily there is a ready market for petroleum. On the other hand,
the marketing of natural gas is attended with more or less uncer
tainty. Unless a gas well is in the neighborhood of a city or town
utilizing natural gas, or near a gas pipeline supplying more remote
places, there is little or no opportunity to dispose of the gas pro
duction. No one will undertake the expensive operation of install
ing a gas pipeline until a large reserve supply of natural gas has
been developed. Until these facilities are provided a gas well must
rema1n idle." Then, in the second place, the lessor's oil royalty
consists of a share of the production which in itself implies the con
tinued operation of the well in order that the lessor shall receive the
benefits of his contract. In the case of gas wells, however, the
usual royalty is an annual cash rental for each well. Therefore,
should the lessee pay the stipulated rental and yet refrain from the
operation of the well, the lessor is receiving the same compensa
tion which he would receive if the gas were being produced. For
these reasons the rule in this respect diverges. , The principle is well
established that a lessee seeking to hold his lease under the "there
after" clause must operate the oil wells on his premises with reason
able diligence.91 On the other hand, even where the "thereafter"
clause provides that the lease shall remain in force as long as oil
"Eastern Oil Co. v. Coulehan, 65 W. Va. 531, 64 S. E. 836 (19o9);
Roach v. Junction Oil & Gas Co., Okla. , 179 Pac. 934 (1919).
"Strange v. Hicks, 11 Okla. App. 369, 188 Pac. 347 (192o).
" Murdock-West Co. v. Logan, 69o O. S. 514, 69 N. E. 984 (19o4) ; Prowant v. Sealy, 11 Okla. App. 1o, 187 Pac. 235 (192o) ; Collins v. Mt. Pleasant
Oil & Gas Co., 85 Kan. 483, 118 Pac. 54 (191 1). In this case it is said:
"Now the contract between the parties contemplates that the lessee shall
not only explore and discover, but that if oil in paying quantities is dis
covered, they shall operate and produce oil, so that the lessors can have

or gas shall be produced in paying quantities, which implies the ne
cessity of continuous production, it is held that a lessee holding a
lease under a gas well alone may refrain from the operation of the
well upon the condition that he pays or tenders the stipulated gas
royalties."
James A. Veasey.
Tulsa, Oklahoma.
(To be continued)
their share of the oil produced."' In Zeller v. Book, 7 Ohio Cir. Ct. Rep.
(N. S.) 429 (19o5). where the operation of the property was stopped by
causes beyond the control of the lessee, the court refused to hold that the
lease had terminated.
" Summerville v. Apollo Gas Co., 2o7 Pa. 334, 56 Atl. 876 ( 19o4) ;
McGraw Oil Co. v. Kennedy, 65 W. Va. 595, 64 S. E. 1o27 (19o9). In
Strange v. Hicks, 11 Okla. App. 369, 188 Pac. 347 (192o), however, where
the only provision for the payment of the gas royalty was conditioned upon
the use of the gas, the court held that the case was open to oral proof as
to whether the parties intended that the lease might be held by a gas well
under the "thereafter" clause without the actual production of gas or the
payment of the stipulated royalty. See also Herrington v. Wood, 6 Ohio
Cir. Ct. Rep. 326 (1892).
M1ch1gan
Law
Rev1ew
PUEUSHED MONTHLY DURING THE ACADEMIC YEAI, EXCLUSIVE OF OCTOBER, ET THE


ASSOCIATE EDITORS
Henry M. Bates
Edson R. Sunderland
E. C. Goddard
Joseph H. Drake
John B. Wa1te
STUDENTS, APPOINTED BY THE FACULTY
Jamf.s I. McCl1ntock, of Colorado
Harold M. Shapero, of Michigan
Winter N. Snow, of Maine
Jean Paul Tnoman, of Michigan
NOTE AND COMMENT
Baseball and the Jud1c1ary The acceptance by Judge Kenesaw Moun

tain Land is of the position of supreme arbiter of professional baseball, as
recently announced, raises questions of good taste if not of propriety. It
has been generally assumed that Judges of the District Court of the United
States have their hands amply full if they do the work incumbent upon
them in a way befitting a judge of the United States. It may well be true
that the salary provided by the Government is grossly inadequate, but we
dare say that no one has considered that the remedy for such condition was
to be found through outside jobs paying additional compensation.
A man receiving a salary of $42,5oo per year, the amount which it is
said Judge Landis is to get from baseball, may reasonably be expected even
in these days of high wages to give at least a considerable portion of his
energies and time to the work for which he receives such sum. It would
seem inevitable that the public service must suffer by such division of effort.
It must be further evident that it is the official position which Judge
Landis holds and the really splendid record he has made in clearing up cer
tain types of fraudulent and criminal practices that make him peculiarly
acceptable to the baseball magnates. But for his judgeship he would prob
NOTE AND COMMENT
191
ably be no more fitted or desired than thousands of able men interested in

the national game. It appears to us that Judge Landis is prostituting his
high office ior the sake of a commercialized, professional sport.
If the distinguished jurist had resigned in order to accept his baseball
position there might have been some to regret such yielding to the call of
the flesh pots, but all would have agreed that such step was for Judge
Landis alone to determine. We believe that among lawyers and the public
generally the opinion must be widespread that Judge Landis in attempting
to hold both positions is guilty of extremely bad taste, to say the least, and
that it is a gross impropriety for him to make use of his judicial position
and prestige to help him out as "czar of baseball." He ought to resign.
Otherwise we may expect to see other judges with dulled senses of propriety
accepting various more or less lucrative side-employments for which their
offices make them peculiarly desirable.
Mun1c1pal Zon1ng.Modern City Planning is of recent origin, but of

rapid growth. It began in Prussia less than fifty years ago. It soon spread
to adjoining countries, and reached the United States about twenty years ago.
Its primary object is to control the physical structure of the city, by
controlling the real property within its actual or prospective limits. This
property is either public or private. The public property is controlled, in
the main, through public oumership; private, through regulation.
These regulations, recently, have taken the form of Zoning,regulating
by prescribed districts the kinds of buildings erected, the portion of the lot
covered, and the uses to which both are put, within the districts.
The New York ordinance of July 25, 1916, is a typical one of the best
kind. It includes height, area, and use regulations. It creates districts in
which the allowable heights of buildings are 2V2, 2, V/i, 1%, and 1 times
the width of the adjacent street at the building line, with a set-back of one
foot for every four feet above that height; if the street is over 1oo feet wide
no additional height is allowed; and if under 5o feet, the building may be
as high as if the street were that wide. There is no limit to the height of
towers, steeples, and chimneys.
Under area regulations, the districts are: A, warehouses, storage, and
industrial establishments, which may cover 1oo per cent of the lot; B, large
office and high apartment buildings, per cent ; C, non-elevator apartment
houses, etc., per cent ; D, one- and two-family private residences in blocks,
per cent; E, private detached residences, where new buildings may not
cover over 3o per cent of the lot.
Under use regulations, the districts are : Unrestricted, all sorts of build
ings and factories allowable; Business, business and residences both allowed;
Residence, business and factories excluded, but clubs, churches, schools,
libraries, etc., allowed. Three maps are made showing the districts accord
ing to the character of the regulations. The districts made on one basts
need not coincide with those made on another basis.
192
MICHIGAN LAW REVIEW
Los Angeles, St. Louis, Detroit, Akron, Portland, Ore., and many other
cities have recently passed similar ordinances.
These regulations have been made under the Eminent Domain, the
Police, or the Taxing power. In some cases, by ordinance only, under gen
eral charter powers; in some, by ordinance, under special "Home Rule"
charter provisions; in some, under express statutory authority, without con
stitutional provision ; and in some, under authority supported by constitu
tional provision.
The general nature and limits of the taxing, police, and eminent domain
powers, in relation to this subject, have been treated in a note in the M1ch.
L. Rev., Vol. XVIII (April, 192o), pp. 523-528. The purpose of this note
is only to review the important cases decided this year on this subject.
The first is State v. Houghton, decided by the Supreme Court of Min
nesota, January 23, 192o (176 N. W. 158), being a rehearing and reversal
of the same case decided three months before (October 24, 191o), 174 N. W.
885. The attorneys, twelve for the plaintiff and eight for the defendant,
and the judges (seven in number) were the same in both cases. The majority
opinion on the first hearing was delivered by Dibell, J., with Holt, J., writ
ing a dissenting opinion- m which Hallam, J., concurred. The majority
opinion on the rehearing was by Holt, J., with dissenting opinion written
by Brown, C. J., concurred in by Dibell, J.
The action was mandamus to compel the granting of a permit to build
a three-story apartment building, costing about $5o,ooo, upon lots owned by
plaintiff, in Minneapolis, located in a restricted residence district of only
one block created under Laws of 1915, c. 128. This provided that on the
petition of 5o per cent of the property to be affected the city council may
"designate and establish * * * residence districts * * wherein no building
shall thereafter be erected, altered, or repaired for any of the following
purposes, to-wit: hotels, restaurants, eating houses, mercantile business,
stores, factories, warehouses, printing establishments, tailor shops, coal yards,
cleaning and laundering establishments, bill-boards and other advertising
devices, public garages, public stables, apartment houses, flat buildings, or
any other building or structure for purposes similar to the foregoing."
"The council shall first designate the restricted residence district, and
shall have power to acquire by eminent domain the right to exercise th(
powers granted by this act."
The council was to appoint appraisers who were to view the premises,
take testimony, and determine the amount of damages suffered by, and the
benefits to, each parcel of land in the district; and if the damages exceeded
the benefits the excess was to be awarded as damages ; and if the benefits
exceeded the damages the difference was to be assessed as benefits ; but the
total assessments of benefits was not to exceed the aggregate net award of
damages. Report was to be made to the council, which, after opportunity
for a public hearing, might annul or confirm the report. If confirmed, such
award of damages was to be a charge upon the city, for the payment of
which its credit was pledged. The assessments of benefits were to be a
NOTE AND COMMENT
93
lien upon the parcels of land until paid. On the payment of the awards,
"the several tracts of land shall he deemed to be taken and appropriated for
the purposes of this act, and the right above specified shall vest absolutely
in the city." Maps and plats were to be made of the restricted districts and
were to be filed with the city clerk and the register of deeds, with a list of
the parcels of land within such districts. The assessments were to be col
lected as other taxes.
The Constitution provided : "Private property shall not be taken,
destroyed or damaged for public use, without just compensation therefor
first paid or secured."
The question involved in both hearings was conceded to be: "Whether
there is a public use upon which to rest a condemnation?" It was also con
ceded that neither the city nor the public gets any physical use of the con
demned premises; they cannot travel upon nor occupy them; no part of the
ground is taken; the use is negative; the taking consists in a restriction of
the use; it prevents an otherwise lawful use; the owner still owns the land;
he may keep the people off ; he may leave it vacant; he may build any, except
the forbidden, building; a fifty per cent vote, with the approval of the coun
cil, has made it so; no considerable part of the public will derive any benefit;
it will be paid for by assessments for benefits to the residents of the one
block.
The decision in the case turned very largely on views of the judges o1
the nature of apartment buildings. Dibell, J., says : the use is legitimate ;
not all people can live in detached houses ; some seek apartments ; true,
apartments are not welcome in exclusive residence districts; their appearance is not liked ; the living conditions they offer are wholesome, and the
people who use them are good people; they do not affect the public health,
or public safety, or general well being; when once the principle is announced
that on a vote of the majority owners land may be condemned against its
use for an apartment, it may reach the humble and shabby dwelling, for its
appearance may be as objectionable as an apartment ; and when the humble
home is threatened by legislation on aesthetic grounds, at the instance of a
particular class, who would rid themselves of its presence, a step will have
been taken toward government controlled in the interests of a class rather
than for the equal protection of all. Condemning property against a build
ing which offends only because it is out of harmony with the neighborhood
surroundings we do not find to be for a public use.
On the other hand, Holt, J., says : what is a public use is primarily a
legislative question; many conditions justify this law; people are crowding
into cities ; lots are small ; a person buys one and erects a modest building
for a home; later some one buys the adjoining lots, erects a three or more
story apartment on one side and a store on the other, up to the lot lines ;
the small home is utterly destroyed so far as enjoyment and value as a
home go. Speculators buy in a desirable residence section and threaten to
erect structures that will greatly depreciate values, be an eyesore to owners,
who are forced to buy at an exorbitant price or submit to the injury. Public
194
MICHIGAN LAW REVIEW
welfare is served by protecting them. That which is appropriated for the

public welfare is taken for a public use. It is time that courts recognize
the aesthetic factor in the affairs of life; it promotes the general welfare
of the dwellers ; preserves and enhances values ; fosters contentment ; cre
ates civic pride; produces better citizens; property taken for this is taken
for a public use. The legislature so deemed; there is nothing in the federal
or state constitutions that forbids.
To which Brown, C. J., replies: there is no public use to condemn, on
the sole claim that an apartment deteriorates property values in the vicinity;
if so, the owner of vacant land can only improve his land by a use that will
leave the values round about stationary or enhances them. Condemnation
money is not paid as tribute. However far we follow the argument, we
return to the question whether a residence district voluntarily organized on
a 5o per cent vote may exclude from its midst apartments, thoroughly sani
tary, or an unsightly cottage which is the only possible home the owner can
build or have. Back of all aesthetic considerations is the disinclination of
the exclusive district to have in its midst those who dwell in apartments.
It matters not how mentally fit, or how morally correct, or how decorous
in conduct they are, they are unwelcome. The statute is aimed in the wrong
direction, and is not in the promotion of the general welfare. It segregates
people into classes founded on invidious distinctions, and extends to one the
powerful eminent domain arm of the state, by which it may on aesthetic or
fanciful grounds exclude from their selected neighborhood members of the
other class equal in intelligence and moral standing with those temporarily
vested with this powerful state weapon.
In 1898 the Massachusetts legislature limited the heights of buildings
to be erected on lands abutting on Copley Square, Boston ; in 19o1 St. Louis
prohibited the erection of business houses on any property on any boule
vard; in 191o, a bill in Congress proposed to classify the streets of Wash
ington, and to prohibit any kind of business building on class A streets.
In all these, provision was made for compensation to the owners of prop
erty injuriously affected. The English Town Planning Law of 19o9 also pro
vides for compensation according to damage done, and also for the assess
ment back on to the property benefited of an amount equal to half of the
benefits.
While it has generally been held in the bill-board and building line cases
that one cannot be deprived of his use of his properly for such purposes,
under the police power, for aesthetic reasons alone, many of these cases
have intimated that this might be accomplished under the eminent domain
power; and the Supreme Judicial Court of Massachusetts, in AttorneyGeneral v. Williams (18on). 174 Mass. 476, in sustaining the Copley Square
legislation, intimated that "promoting the beauty of a public park" might be
a "matter of such public interest as to justify the taking of private prop
erty." A few out of many bill-board cases are: People v. Green (1oo3), 85
App. D. 4oo; Bill Posting Co. v. Atlantic City (19o4), 71 N. J. L. 72; Commw.
v. Boston Adv. Co. (19o5), 188 Mass. 345; Varney & Green v. Williams
NOTE AND COMMENT
95
(19o5) ; 155 Cal. 318; State v. Lamb (N. J., 1916), 98 Atl. 459; St. Louis v.
Cunning Advt. Co. (1911), 235 Mo. 99; Thomas Cusack Co. v. City of Chi
cago (1914), Ill. , 1o8 N. E. 34o (1917), 242 U. S. 526; contra, Churchill
v. Collector of Internal Rev. (1915), H Off. Gaz. P. I. 383.
A few building line cases are: 5"r. Louis v. Hill (1893), 116 Mo. 527;
Eubank v. Richmond (1912), 226 U. S. 137; Fruth v. Board of Affairs (1915),
75 W. Va. 456.
For statutory efforts to regulate bill-boards, see note 18 M1ch. L. Rev.,
P- 527.
The next case in order is Salt Lake City v. Western Foundry Works
(Utah, Feb. 17, 192o), 187 Pac. 829. Defendant was convicted of violating
a city ordinance creating a residence district. The city was authorized "to
direct the location and regulate the management and construction of * *
foundries * * * in and within one mile" from the city limits; and to make
all regulations necessary to provide for the safety, preserve the health, pro
mote the prosperity, improve the morals, peace and good order, comfort
and convenience of the city and the inhabitants, and for the protection of
property therein. The defendant bought a lot, obtained a permit to build
"a building" thereon, and in April, 1917, began to erect a foundry thereon ;
the property owners protested, conferences followed, and the city offered
to buy the site; the offer was not accepted; July 23, the ordinance was
passed establishing the residence district and making it unlawful to erect a
foundry therein, whether it was in operation or not. The defendant's foun
dry was the only one in the district, but the boundaries of the district were
so fixed as not to include an operating brass foundry in the vicinity The
defendant completed his foundry, began to operate it, was prosecuted, con
victed, and appealed. Affirmed. The defendant claimed that, while he city
could exclude objectionable businesses from all the city, it could not exclude
them from a particular section and allow them to remain in other similar
sections of the city. The court said that "one step in the right direction"
was not conclusive that it "will not take another" in the course of time.
So long as the legislature has conferred the authority to exclude such busi
nesses from residential districts, where they would at once become intoler
able, the courts will not say they have acted unreasonably, nor for merely
aesthetic purposes. The district is residential; industrial plants within it
would deprive many owners of the enjoyment of their property, or greatly
depreciate its value; the police power extends to the needs of the general
public, and ought not to be questioned on the ground that the exclusion was
a taking without compensation.
In Bebb v. Jordan (Wash., April 22, 192o), 189 Pac. 553, the plaintiff
sued to recover $1o,ooo for services in drawing plans and specifications for
a six-story $1oo,ooo apartment house : before these plans were completed
the defendant changed his mind and directed new plans for an eight-story
building; when these plans were completed the estimated cost was $4o,ooo
more; the defendant then abandoned the project, and refused to pay the
architect. The defense made was that the plans were useless, because they
MICHIGAN LAW REVIEW

did not conform to the city ordinance; they, however, were according to
the directions given. The building ordinance required, for a building of
this height, a court area of 168o square feet, but the plans allowed only 1288;
such building was also to have a back yard 13 feet wide; the plans called
for a building covering the whole lot. Plaintiff claimed the ordinance was
unreasonable. The statute authorized the city "to regulate the manner in
which stone, brick, and other buildings shall be constructed."
The court said that such regulations are common, and "if aimed at
promoting the public health, safety or welfare, and tend reasonably so to
do," they are not open to constitutional objection. The ordinance is valid.
Olympia v. Mann, 1 Wash. 389 (fire limits) ; Seattle v. Hinckley, 4o Wash.
468 (fire escape); Eubank v. Richmond, 11o Va. 749 (building line on lots
adjoining a city park) ; City of Detroit v. Kuhn, 181 Mich 6o4 (15-foot yard
at the rear of every tenement). The principle of these cases applies here.
Plaintiff cannot recover for the plans which did not conform to the ordi
nance.
The next is an apartment house case, State ex rel. Morris v. East Cleve
land, in the Common Pleas Court of Ohio at Cleveland, decided October,
1919, with rehearing April 3o, 192o (31 O. Dec. 98, 197). One Morris applied
for a permit to build an apartment house on land owned by him in East
Cleveland. At the time his plans conformed to the building regulations, and
there was nothing to forbid such a building. A week later the city passed
a zoning ordinance districting the city according to use, creating district D
(in which the lot was located), restricted "against manufacture, business
and tenement use," and reserved "for use as single and double residence
property only." The permit was denied solely because of the ordinance.
Mandamus was brought, and denied. It was claimed the ordinance took
plaintiff's property without compensation, without due process, and denied
the equal protection of the laws. The city claimed it was a valid exercise
of the police power. The city had a "Home Rule" charter under constitu
tional provision giving authority "to exercise all powers of local self-gov
ernment, and adopt and enforce such local police, sanitary and other sim
ilar regulations not in conflict with general laws.'' The charter said the
city "may define, prohibit, abate, suppress and prevent all things detrimental
to the health, morals, comfort and safety, convenience and welfare of the
inhabitants of the city."
Foran, J., held the burden was on the plaintiff to show the ordinance
was unreasonable and oppressive; and taking judicial knowledge of the sub
ject, said: "the apartment house is a monstrosity and a deadly menace to
life, health and morals." On the rehearing, after evidence was admitted
as to the nature of apartment houses, Kramer, J., said - "There could be
no two opinions that an apartment in a section of private residences is a
nuisance; it shuts off light and air from its neighbors; it invades their pri
vacy; it spreads smoke and soot; the noise of deliveries is almost continu
ous; the fire hazard is increased; the number of people in and out render
immoral practices more difficult of detection and suppression ; the danger
NOTE AND COMMENT
197
of the spread of infectious disease is increased ; the erection of an apart

ment drives out the single residence adjacent, and the whole street is soon
given over to apartments." Both judges held the ordinance valid, and are
very much more specific in reference to the menacing character of the
apartment than any of the judges was in the Houghton case above. In that
case the decrease in the value of the adjoining property was emphasized,
and almost nothing was said as to peril to health, safety and morals. The
Minnesota court had before held a store could not, under the police power,
be excluded from a residence district unless it was a nuisance in the way
in which it was carried on, and not merely because it decreased the value of
adjoining property. State ex rel. Lachtman v. Houghton (1916), 134 Minn.
226, 158 N. W. 1o17. Accord: Wilson v. Cooke (1913), 54 Col. 32o; People
ex rel. Friend (1913), 261 Ill. 16.
In his dissenting opinion in the Lachtman case, Hallam, J., says in ref
erence to this : "It is said this relator has a vested right guaranteed him
by the constitution to damage his neighbors' homes by devoting his lot to
a use incongruous with the use of property in the vicinity, and that no
power can stop him, for to stop this damage would be to take his property
without due process of law. If it be said that the owner of a lot in a dis
trict of homes has the vested right to use it as he sees fit, notwithstanding
the damage to his neighbor, then what of the right of his neighbor whose
property value he destroys? Has one a vested right to destroy, and the
other no right at all to be protected? In my judgment, the slaughter of
property value is something the legislature has the power to prevent."
The next case is Clements v. McCabe (Mich., May 1o, 192o), 177 N. W.
722. In October, 1919, Clements applied for a permit to build an automo
bile serving station on a lot in Detroit owned by him. There were no build
ing restrictions on the lot at the time, and he proposed to comply with the
building code. The neighbors protested to the council, which directed the
building commissioner not to issue the permit. Plaintiff brought mandamus.
The city answered that on November 19 an ordinance was passed to zone
for residential purposes that part of the city in which the lot was located.
This ordinance provided that when 6o per cent of the frontage on any
block is used for residential purposes it shall be deemed a residential zone,
and it shall thereafter "be unlawful for any person to build any public
garage, livery, boarding or sale stable, automobile, battery, or accessory serv
ice station * * * which may be dangerous, offensive, or detrimental to the
public health, morals, comfort, safety or general welfare of the city in any
block in which 6o per cent of the frontage of said block is used exclusively
for residence purposes."
Under the "Home Rule" constitutional provision, the city had the power
"to pass all laws and ordinances relating to its municipal concerns." The
"Home Rule" act gave authority to provide "for the public peace and health,
and safety of person and properly ; for the regulations of trade ; * * * for
the exercise of all municipal powers * * * in the administration of the gov
ernment, whether expressly enumerated or not; for any act to advance the
198
MICHIGAN LAW REVIEW
interests of the city, the good government and prosperity of the municipality
and its inhabitants." The charter provided for a City Planning Commission,
to divide the city into zones "to carry out a definite plan for the betterment
of the city" to be adopted by the council. The proposed plan included, first,
residential ; second, residential, commercial, industrial, and unrestricted dis
tricts. It had not been adopted by the council, but by agreement of counsel
it was treated as if it had been. The lower court held the ordinance invalid,
and directed that the permit be granted. This was affirmed. Steere, J.,
says: "The zoning power does not now exist, because not expressly con
ferred by the constitution or the supplemental legislation." It is claimed
the city has the power under the police power, inherently, by its mere crea
tion. This power relates to safety, order, morals, for the protection of
health, person and property ; in recent years it has expanded to new sub
jects which border the debatable line of constitutional rights; this power
is an inherent attribute of sovereignty, but it belongs to subordinate gov
ernmental divisions only by constitutional or legislative provision; incor
poration of a city invests it with certain primary police powers funda
mentally essential to the ends for wh1ch it was created, but beyond these
narrow limits it must be expressly delegated. The power to zone is clearly
within this debatable sphere ; it cannot be implied from mere incorporation ;
there is no hint of such power in the constitution ; it is not essent1al to
local government; neither is it specifically designated in the Home Rule act;
this does not authorize the prohibitions necessary in a zoning system; the
power is to regulate, not prohibit. Such power must be delegated in express
terms. The court refused to pass on the question whether the legislature
could grant such power under the present constitution.
This decision is in accord with the Lachtman case above, and the cita
tions there given; also with City of St. Louis v. Dorr (1898), 145 Mo. 466;
Bostock v. Sams (19o2), 95 Md. 4oo; Stubbs v. Scott (1915), Md. , 95
Atl. 1o6o; Byrne v. Maryland Realty Co. (1916), 129 Md. 2o2; People ex rel.
Realty Co. (1913), 2o9 N. Y. 434: People v. Roberts (1915). 153 N. Y. Supp.
143; Quintini v. Mayor, Bay St. Louis (1886), 64 Miss. 483,all being futile
efforts to create residence districts and exclude therefrom harmless industries,
such as stores, etc.
Perhaps the most important opinion of the year along these lines is
In re Opinions of the Justices (Mass., May 2o, 192o), 127 N. E. 525, on the
validity of a proposed zoning act.
An amendment to the constitution, in 1918, provided :
"The general court shall have power to limit buildings according to
their use or construction to specified districts of cities and towns."
The proposed act provided:
"A city or town may by ordinance restrict buildings to be used for par
ticular industries, trade, manufacturing, or commercial purposes to specified
parts of the city or town, or may exclude from specified parts of the city
or town, or may provide that such buildings, 1f situated in certain parts of
NOTE AND COMMENT
199
the city or town shall be subject to special regulations as to their construction

and use."
The act authorized the same to be done with dwelling and tenement
houses; and for this purpose "the city or town may be divided into districts
or zones, and the construction and uses of buildings ir. each district or zone
may be regulated as above provided," 1 This was to be "carried out in
such manner as will best promote the health, safety, convenience, and wel
fare of the inhabitants, will lessen the danger from fire, will tend to improve
and beautify the city or town, will harmonize with its natural development,
and will assist in carrying out any schemes for municipal improvement put
forth by any municipal planning board,"- 2.
Provisions were made for a public hearing before the ordinance was
passed; requiring unanimous vote, in case of objections; repeal only by
two-thirds vote; refusal of permit to those not complying; appeal to the
council or a board; enforcement by injunction. It was not to apply to
existing structures.
As to the effect of the proposed act, the court said :
"Owners of vacant land in certain parts of the city may be utterly pro
hibited from erecting a building for any residential use whatever, and be
compelled to devote it exclusively to a designated industry." And "other
land-owners in other specified places may be required to hold their vacant
land solely for residential purposes and be deprived of the privilege of util
izing it for commerce, trade or manufacture."
The opinion upholding the validity of the proposed act said : The dele
gation of power to cities is within the authority of the legislature. Commonw. v. Slocum, 23o Mass. 183, 19o. Independent of the constitutional pre
vision, under the police power, the exclusion of wooden buildings from fire
limits, restricting air spaces and distances between outside walls, requiring
interior fireproof walls, fire escapes, etc., are common and valid. Stevens v.
landowner, 228 Mass. 368 Also limitations on the heights of buildings,
varying according to districts, are valid. Welch v. Swasey, 193 Mass. 364,
affirmed, 214 U. S. 91.
But under Sec. 2 of the act, "all the considerations there named must
be given appropriate weight. No one or more, less than all, can be selected
as the exclusive basis for action, although the public health, safety, and wel
fare (defined with some strictness) have each been held sufficient ground
for the exercise of the police power. Commonu: v. Strauss, 191 Mass. 545 ;
Holcomb v. Cramer, 231 Mass. 99, 1o4-1o7.
While the powers given might go beyond the rational limits of the
police power, it is assumed they will be exercised with a due regard to the
rights of private property under the constitution. Town of Lexington v.
Suburban Land Co., 235 Mass. , 126 N. E. 36o.
Aesthetic considerations alone, such as those in Sec. 2, "do not afford
sufficient foundation for imposing limitations upon the use of property under
the police power," James Byrne v. Maryland Realty Co., 129 Md. 2o2; yet "if
the primary and substantia! purpose of the legislation is such as justifies the
20o
MICHIGAN LAW REVIEW
act, considerations of taste and beauty may enter in as an auxiliary" and

"in a subsidiary way." Welch v. Swasey, 193 Mass. 364, 375, 214 U: S 91,
1o7; St. Louis Poster Adv. Co., 249 U. S. 269. Sec. 2 requires "considera
tion in due proportion of all the elements named. Enhancement of artistic
attractiveness * * * can be considered * * * only when the dominant aim in
the establishment of districts based on use has primary regard to other
factors lawfully within t hi? police power. After reviewing many cases the
court concludes, "the proposed statute cannot be pronounced on its face con
trary to the Federal Constitution or its amendments." Certain kinds of
business increase the risk of fire, endanger the health and security of those
living in close proximity, especially of children and the old and feeble; pub
lic welfare in these matters may be facilitated by the establishment of zones
for business alone, and "by excluding from areas devoted to residence the
confusion and danger of fire, contagion and disorder which in greater or
less degree attach to the location of stores, shops, and factories. * * * The
proposed act would be constitutional." all seven judges concurring.
In City of St. Paul v. Kcssler (Minn., June 11, 192o), 178 N. W. 171,
defendant was convicted of violating an ordinance by establishing a "funeral
home" in a residence district created under a statute based on the police
power (instead of eminent domain, as in the Houghton case above). The
charter gave power "to define, regulate, prohibit, or abate nuisances; to
regulate the location of * * * unwholesome houses or places."
Defendant claimed the act authorizing districting under the eminent
domain power superseded the authority to do so under the police power,
and since "funeral homes" were not mentioned in the eminent domain act
they could not be excluded. The court held otherwise.
The ordinance was attacked as depriving defendant of his property
without due process. The court says: "it can be upheld only if it is a legiti
mate exercise of the police power; that depends on whether the business, if
properly conducted, is liable to become a unisance; it is legitimate and a
necessity; it is not a nuisance per se; but there are numerous occupations
equally necessary, not nuisances per se. that a city may exclude from resi
dential localities because of their proneness to become injurious to health,
offensive to the senses, or an obstruction to the free use of property, so as
to interfere with the comfortable enjoyment of life or property, as slaughter
houses, tanneries, brick kilns, mills, laundries, livery barns, and the like.
In our opinion, the undertaking business may be put in the same category,"
citing many recent cases.
In Myers v. Fortunato (Del., June 15, 192o), 11o All. 847, the city of
Wilmington had power "to do all those matters and things for the wellbeing of the said city" not in contravention of the laws or constitution. An
ordinance provided that "no permit shall hereafter be granted for the erec
tion or alteration of * * * any public garage in the residential portion of the
city * * * within 4o feet of the line of adjoining property, unless the written
consent of all owners has been filed with the building inspector." The
defendant got a permit to erect seven garages within a residence section,
NOTE AND COMMENT
2oI
and began to build without obtaining the consent of the property owners.
Injunction was asked; demurrer sustained; the city appealed. Reversed.
The defendant claimed the ordinance was void, (1) as a delegation of
legislative power, and (2) as unreasonable. As to (1), "the ordinance pro
hibits the erection of a public garage in the residential portions of the city,
but allows the prohibition to be removed if the property owners most
affected consent. The law is complete in itself wholly independent of what
anyone may say or do. * * * The fact that those most affected may remove
the prohibition in their favor does not make it a delegation of legislative
power." Weeks v. Huerich, 4o App. D. C. 46; Cusack Co. v. City of Chicago,
242 U. S. 527; compare Eubank v. Richmond, 226 U. S. 137. As to (2), "the
reasonableness of an ordinance is a judicial question, * * * when enacted under
a general or implied power." Chicago. &c., R. Co. v. City of Carlinvillc, 200
lll. 314; but there is not uniformity of decision when there is specific legisla
tive authority, and the court thinks the ordinance is unreasonable. People r.
Ericsson, 263 Ill. 368.
The ordinance was passed under the general welfare clause of the
charter; it must have for its object the preservation of the public health,
morals, comfort, safety and welfare; the presumption is in favor of its
validity; automobiles are noisy machines; frequently emit offensive odors;
go in and out of public garages at all times of day or night, producing noises
which must interfere with the comfort of those in the immediate vicinity;
clearly the legislature, in the exercise of the police power, may authorize
municipalities to direct their location ; and it is not unreasonable to require
one who wishes to build such a garage to secure the consent of the adjoining
property owners. The ordinance is valid.
In Lincoln Trust Co. v. Williams Building Corp. (N. Y., July 7, 192o),
128 N. E. 2o9, the vendor sued for specific performance, by the vendee, of
a contract to buy a lot in a residence district. The defense was that the
title was to be free and clear, and that it was encumbered by a resolution
of the city council under the zoning law (mentioned above), limiting the
heights and bulk of buildings, fixing the area of yards, courts, and open
spaces; restricting the location of buildings according to uses: and estab
lishing residence, business, and unrestricted districts. The ordinance was
passed before the contract was made, but the defendant did not know this.
Held, the ordinance was valid, and each party was bound to know of its
existence. It does not create an encumbrance. The court distinguishes
Anderson v. Steinway, 178 App. Div. 5o7. The court cites, and by analogy
relies on, many decisions holding various regulations valid : Village of Car
thage v. Frederick, 122 N. Y. 268 (the conduct of an individual and the use
of his property may be regulated) ; Hadacheck v. Cify of Los Angeles, 239
U. S. 394 (manufacture of brick) ; Reinman v. City of Little Rock, 237 U. S.
171 (livery stable) ; Fischer v. St. Louis, 194 U. S. 361 (dairy) ; Soon Hing v.
Crcwley, 113 U S. 7o3 (public laundry 1 ; Cusack Co. v. Chicago, 242 U. S. 526
(bill-boards in residence districts) ; Matter of Machintosh v. Johnson, 211 N.
Y. 265 (garage) ; Tenement House Dept. v. Moeschen, 179 N. Y. 325 (sinks and
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MICHIGAN LAW REVIBW
closets in tenements) ; Grumbach v. Lelands, 154 Cal. 679 (excluding certain

businesses) ; Ex parte Quong Wo, 161 Cal. 22o (hay barn, wood yard, laun
dry) ; Matter of Montgomery, 163 Cal. 457 (stone crusher, machine shop,
carpet beating, lumber yard) ; Cronin v. People, 82 N. Y. 318 (slaughtering
animals); City of Rochester v. Guthberlett, 211 N. Y. 3o9 (disposition of
garbage) ; City of Rochester v. West, 164 N. Y. 51o (limiting height of bill
boards) ; Welch v. Swasey, 214 U. S. 91 (limiting height of buildings);
City of Rochester v. Macauley, Src., Co., 199 N. Y. 2o7 (smoke prohibition) ,
Union Oil Co. v. City of Portland, 198 Fed. 441 (storing of oil) ; and gener
ally any business, as .well as the height and kind of building, may be regu
lated under power conferred upon it by the legislature. Hauser v. No. Brit
ish, &c., Co., 2o6 N. Y. 455.
A short summary of these cases indicates:
1. Zoning according to use may be made under the eminent domain
power, but with conflicting views as to what is a public use (Houghton case,
above). It would seem the taking here would create an incumbrance,
although it does not under the police power (Lincoln Trust case, above).
In theory, under eminent domain, a beneficial use is acquired ; under the
police power, a harmful use is prevented. The acquisition of the latter,
under eminent domain, is a strange sort of "public use."
2. Zoning may be done under the police power, conferred expressly by
constitutional and legislative provisions (Opinions of Justices, above).
3. Zoning may not be done under general or implied police power
(though expressly claimed in a Home Rule charter) ; there must be express
legislative authority (Clements case, above).
4. Unless the business excluded is a nuisance, or is likely to become
such, to safety, health, or comfort (Foundry, Kessler, East Cleveland, and
Myers cases, above).
5. Zoning may be based on heights and areas of buildings if the public
welfare demands (Swasey case, cited, and Bebb and Lincoln Trust cases,
above).
6. Aesthetic considerations alone are not sufficient, as a basis, under
the police power (Opinions of Justices), and probably not under eminent
domain (Houghton case), but there is a decided tendency to give it more
and more weight.
7. Depreciation of values alone, perhaps, is not sufficient,' but that, too,
is being given greater weight, and seems to be the only substantial basis in
the Houghton (eminent domain) and Kessler (police power) cases above.
Also the dissenting opinion of Hallam, J., in the Lacklman case, cited above.
H. L. W.
Pr1v1leged Commun1cat1on between Phys1c1an and Pat1entWa1ver.
The case of Maine v. Maryland Casualty Company et al., Wis. , 178
N. W. 749, involves the question of privileged communication and its waiver
under a statute providing that a physician "shall not be permitted to dis
close any information which he may have acquired in attending any patient
NOTE AND COMMENT
2o3
in a professional character," etc. The action was brought on an accident

insurance policy and the testimony of the physician was offered to show that
the death of the insured was caused acc1dentally, within the provisions of
the policy, his information having been gained while acting in his profes
sional character as the physician of the insured following the accident.
The court holds, in accordance with the general rule, that, notwithstand
ing the positive character of the statute"shall not be permitted to disclose"
it is to be regarded as a protection to the patient rather han as a mere
inhibition to the physician, and therefore is a privilege or protection which
may be waived by him.
It is further held that his waiver is not to be implied from the fact that
the contract of insurance provided for the making of the proofs of death
as having resulted from causes within the provisions of the policy. It is
quite uniformly held that these statutory provisions should not be so con
strued as to defeat the claim of waiver by conduct. Should the patient ask
his physician or his lawyer to witness his will it is a waiver of the right of
the client or patient to have the information gained by the lawyer or phy- 1
sician while serving him professionally in connection with the execution of
the will protected from disclosure. This conclusion is arrived at through
the application of the principle that where the circumstances are such as to
justify the conclusion that the patient or client could not have expected the
information to be kept secret, then there is no confidence to be protected.
Here the insured had made a contract, under which, if he should die, the
question of the cause of his death would be an important one, and the phy
sician who should attend him in his last illness would be the person, above
all others, by whom the cause of death could be most appropriately and
satisfactorily established. But further, his contract requires that the cir
cumstances of his death shall be disclosed. Is it not a reasonable conclu
sion that as between himself and his insurer at least he must have under
stood that those circumstances were not to be kept secret? In which event
there is no confidence to be betrayed. There is certainly much reason for
concluding that had he actually contemplated the precise question here being
discussed he would have expected that his physician when called to support
his contract of insurance would be allowed to testify.
The court further holds that not only was there no evidence justifying
a finding that the insured had waived the privilege, but that after his death
there was no one who could waive it. In this conclusion the court was con
trolled by the authority of Cassan v. Schoenfirld, 166 Wis. 4o1, L. R. A.
1918c, 162. The general rule would seem to be contra: Johnson v. Fidelity
& Casualty Co., 184 Mich. 4o6, L. R. A. 1916A, 475 (a case of waiver by
a beneficiary under an insurance policy) ; Penn Mutual Life Insurance Co. v.
Wiler, 1oo Ind. 92 (same) ; Denning v. Butcher, 91 la. 425 (executor) ; Groll
v. Tower, 85 Mo. 249 (any person claiming under deceased) ; Eraser v. Jennison, 42 Mich. 2o6 (personal representative).
But the privilege being the insured's and not the insurer's, what right
has he, the insurer, whose every interest is antagonistic, to raise this ques
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MICHIGAN LAW REVIEW
tion of the insured's privilege? The rule is very clear that it is not for
either party to litigation to interfere to prevent a witness from testifying to
his own guilt of crime, though he is privileged not to do so, and this because
the privilege is not theirs. R. v. King Lake, u Cox Cr. 5oo, 22 L. T. R. (N.
S.) 335; Samuel v. People, 164 Ill. 379; Cloyes v. Thayer, 3 Hill 564; see
Wright, J., in Russ v. Steamboat War Eagle, 14 la. 363, 375 (involving right
of party to object that examination of witness involved disclosure of marital
confidences). Are the circumstances in a case like that under consideration
so different as to impose an obligation upon one party or the other to pro
tect the privilege of one to whose interests his own are diametrically opposed.
If the testimony is received against the objection of the insurer that it is
privileged, can he assign error on the ruling? Upon what theory can he
claim to be prejudiced when the privilege was another's and not his own?
A stranger is not to be heard in- protection of the privilege of another while
living and able to insist upon it or waive it as he may please. Upon what
theory does death make the stranger the guardian of that privilege?
One of the most fundamental of procedural principles 's that all evidence
having probative value should be received. While the law is opposed to
compulsory disclosure of that which it has said may be kept secret, still
there is no prejudice in the law against disclosure where privilege is not
claimed. It is to be claimed by whom? Surely not by one in the service of
his own interest as against that claimed through the one privileged.
V. H. L.
Tr1alUsr of Unproved Map or D1agram 1n Argument to the Jury.
In the trial of an action for an unlawful entry and detainer, counsel, against
the objection of the party opposing, in his argument to the jury was allowed
to use a rough sketch or diagram of the locus in quo, made by his client,
the defendant, for the purpose of assisting the jury to understand the bear
ing of the testimony in the case. No witness had testified upon, inspection
of the diagram that it correctly represented the situation involved, nor did
counsel claim that there was such testimony. What counsel evidently was
claiming was that the testimony of the witnesses testifying in the case did
establish the existence of facts illustrated by the diagram.
It was held by the reviewing court that such use of the diagram in argu
ment to the jury was proper. Wilson et al. v. McCoy ct al. (W. Va., 1o2o),
1o3 S. E. 42.
In another case reported 1n the same volume, on a trial for murder in
which one of the defenses was that the defendant was insane, his counsel
was allowed by the trial court, against objection ,to use a sketch prepared
by himself, in his argument to the jury. Considerable testimony was before
the jury tending to show that several of the blood kindred of defendant,
on both his father's and mother's side, were or had been insane, and that
several had committed suicide.
Counsel had sketched a "genealogical tree" upon the basis of the testi
mony of the witnesses in the case, to present graphically these facts, claimed
NOTE AND COMMENT
2o5
by him to be established by such testimony. While using this sketch for this
purpose, upon objection by the state that its accuracy was not proven, he
was stopped and its further use prevented. The court reviewing the trial
sustained the ruling of the lower court. This clearly appears from the
opinion, although the syllabus of the case makes a directly opposite claim.
State v. Bramlett (S. C, 102o), 1o3 S. E. 755.
These cases are directly opposed in their understanding of the controll
ing principle, or it is better said, the court in the case last mentioned failed
to perceive the applicable principle. Of course counsel in argument should
not be allowed to present facts to the jury and ask it to accept them upon
the credit of his statement. Counsel does have the right however, to insist
that the evidence in the case does establish the existence of particular facts
which it tends to prove, and if he can better assist the jury to appreciate
his contention by a graphical presentation of his idea than by spoken words
alone, there is no reasonable objection to his so presenting it. As well might
he be shackled in hand and foot lest by some gesture he make more emphatic
and clear his contention, or forbidden to use illustration not proven in the
case, lest the same result should follow. Witnesses are continually being
allowed to present their ideas by the use of such aids, and why should not
counsel have the same right? It is no answer that the witness is speaking
under oath. True he is under oath, and he is not permitted to express his
ideas unless he is, but counsel is permitted to express his ideas without taking
any save his official oath. It is nonsense to say that he may present his ideas
to the jury without oath if he does so by spoken words, but must be under
oath if he would present them graphically. There can be no possible legal
objection to the presentation by counsel in argument of a sketch of a "genea
logical tree," and pointing out to the jury that the branches indicate the
several kindred shown by the testimony to have kinship with a particular
person, and that certain of those there indicated are by the testimony shown
to have been insane, or to have committed suicide, where those facts are
material.
V. H. L.
Cr1m1nal L1ab1l1ty of Corporat1ons.The present-day tendency of
ho'ding criminal law applicable to corporations as well as persons in the
ordinary sense is strikingly shown in State v. Lehigh Valley R. Co. (New
Jersey, 192o), 11l Atl. 257, where, under an indictment for manslaughter
by causing a person's death through the negligent handling of a car loaded
with ammunition, there being no statute involved, it was held that a cor
poration was indictable. The case has been before the court on several prior
occasions, and was disposed of by holding that the common law had been
modified by the decision of Chief Justice Green in State v. Morris & Essex
R. Co. (1852), 23 N. J. L. 36o, and the cases following that decision, and
that under these authorities the indictment cculd be sustained. Four mem
bers of the court dissented, holding that the common law had not been
changed to this extent, and that this point had not been decided by any of
these prior decisions.
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MICHIGAN LAW REVIEW
In State v. Morris, supra, a corporation was indicted for creating a

nuisance by the obstruction of a highway, and held liable, but the Chief
Justice said: "A corporation is not liable for a crime of which a 'malus
animus' is an essential ingredient. The creation of a nuisance involves no
such element." And Nevius, J., in the concurring opinion declared: "It
was urged that a corporation cannot be guilty of a battery or murder. Be
it so; yet it does not follow that it may not be guilty of erecting a nuisance."
In State v. Passaic Co. Agr'l Society, 54 N. J. L- 26o, the same question was
presented, and the court in its affirmative answer said : "It is difficult to see
how a corporation may be amenable to civil suit for libel, and malicious
prosecution, and private nuisance. * * * and at the same time not be indict
able for like offenses where the injury falls upon the public." The majority
of the court evidently believe that these two cases have given them a rather
free hand in applying criminal law to corporations, and are willing to go
very far in holding them liable. The New Jersey constitution makes tha
common law the law of the state unless changed by statute, and there cer
tainly is much force in the argument of the minority of the court that the
court should apply the common law unless the legislature sees fit to change it.
The extent of the criminal liability of a corporation has been in dispute
from the earliest days. Lord Holt is reported to have said that "a corpora
tion is not indictable, though the particular members of it are," and although
this rule has never been admitted, certainly for many years prior to 184o
the rule was that a corporation could be liable only for non-feasance. State
v. Great Works Co., 2o Me. 41. In the case of Queen v. Great North of Eng
land Co., 9 Q. B R. 315, the English courtsand the American courts in
decisions to the same effect, Commonwealth v. New Bedford Bridge, 68 Mass.,
339extended the liability to matters of commission as well as omission,
with the limitation that "a corporation cannot in general be indicted for
ordinary crimes and misdemeanors such as involve a criminal or immoral
intent, as treason, felony, or breach of the peace, nor for manslaughter,
assault and battery, nor larceny." 1o Cyc. 1231. That these limitations are
rapidly crumbling away is amply demonstrated by recent cases. The courts,
when faced with the fact that a corporatlon could not have a "mens rea,"
imputed the agent's evil intent to the corporation. The courts have held a
corporation guilty of contempt, Comm. v. Telegram Nnvspaper Co.. 172
Mass. 2o4; of criminal libel, People v. Star Co., 135 N. Y. App. Div. 517;
for keeping a disorderly house, State v. Passaic Co. Agr'l Society, supra;
for permitting gambling, Comm. v Pulaski Co. Agr'l Society, 92 Ky. 197;
for peddling without a license, Standard Oil v. Comm., 21 Ky. L. R. 1339;
for violating liquor laws, U. S. v. Joplin Mercantile Co., 213 Fed. 926; for
conspiracy, U. S. v. Nearing, 252 Fed. 223 ; and in a recent case in the United
States Court for China, U. S. v. Sin Wan Pao Co., No. 993 O92o). the
court said, "there is no more difficulty in imputing to a corporation' a specific
intent in criminal proceedings than in civil," and held that the guilty intent
of a Chinese servant of the corporation in accepting, without the knowledge
of the directors, an obscene advertisement printed in the company's Chinese
NOTE AND COMMENT

newspaper, rendered the corporation liable in criminal proceedings under a
United States statute.
That a corporation is not indictable for manslaughter or assault and
battery, as these crimes involve an offense against the person, has received
the sanction of the courts in Comm. v .Punxsutawney R. Co. (19oo), 24 Pa.
Co. Ct. 25; Comm. v. ///. Cent. RR. Co. (1913), 152 Ky. 32o; Queen v. Gl.
West Laundry Co. (19oo), 3 Can. Crim. Cas. 514. In the Pennsylvania case
the court held that while a corporation is liable civilly for assault and bat
tery committed by an employee, it cannot be indicted criminally for such a
crime nor for manslaughter, saying "some courts have shown a tendency
to enlarge on the criminal liability of corporations, but no court has gone
as far as we are urged to go in this case." In People v. Rochester Ry. Co.,
195 N. Y. 1o2, the court refused to hold a corporation for manslaughter, but
this was based on the peculiar wording of the New York statute defining
manslaughter as the killing in a certain way "of one human being by
another," and it was decided that the word "another" could only mean
"another person" in the ordinary sense.
In contrast to these cases we find Union Colliery Co. v. Queen (19oo),
31 Can. S. C. 81, in which a corporation was held liable for manslaughter
under a statute, and the common law penally of a fine inflicted, as the statute
omitted any penalty, and the principle case in which the New Jersey court,
relying on a line of cases holding a corporation indictable for maintaining
a nuisance, holds a corporation indictable for voluntary or involuntary man
slaughter, thus going as far as the Pennsylvania court refused to go in the
earlier case. The explanation of these modern decisions is given by Justice
Bigelow in Comm. v. New Bedford Bridge, supra, that with the great increase
of corporations in modern society "the tendency of the more recent cases
in courts of the highest authority has been to extend the application of all
legal remedies to corporations, and assimilate them as far as possible, in
their legal duties and responsibilities, to individuals."
W. C. 0"K.
Marr1ed WomenHusband's R1ght to W1fe's Serv1ces and 1o Her
Earn1ng?..A. Michigan statute passed in 191 1 (Laws of 191 1, ch. 196; Comp.
Laws 1915, 11478) provided that a married woman should be "entitled to
* * * earnings acquired * ** * as the result of her personal efforts." A mar
ried woman, before 191 1, had worked as housekeeper for X and had con
tinued to work for him after 191 1; on his death she filed a claim against his
estate for her services during the whole period. Held, she could not recover
for the period before 191 1, as her .services and earnings prior to that date
belonged to her husband. In re Mayer's Estate (192o), 21o Mich. 188, 177
N. W. 488.
Plaintiff and her husband were working on a farm belonging to defendant.
Plaintiff did the house work, made butter, and took care of the chickens.
She sued defendant for the value of her services after the passage of the
Act of 191 1. Held, that her services were rendered as a member of her
husband's family, in her husband's home, and were the ordinary services
2o8
MICHIGAN LAW REVIEW
a farmer's wife renders in his own home. As the Act of 191 1 refers not to
such services but to earnings in a separate business carried on by her, or to
services performed by her for others than her husband, she can therefore
not recover. S'orensen v. Sorensen (192o), 211 Mich. 429, 179 N. W. 256.
The husband's right to his wife's earnings, unquestioned at common
law (Prcscott v. Brown, 23 Me. 3o5), has been abolished by statute in most
states. The Michigan statute cited above was enacted soon after the decision
in Root v. Root, 164 Mich. 638, which followed the common law rule. Dif
ferences in the phrasing of the various statutes have led to some contrariety
of decision, but generally the distinction is made, as in the two principal
cases, between earnings and services; the former belong to the wife, the
latter to the husband. The question is usually presented in two types of
cases : first, in cases of personal injury to the wife, where it must be decided
whether the wife or the husband is entitled to recover for the wife's inability
to work ; second, in cases where the husband has conveyed property to the
wife, in payment for her services, and his creditors attack the conveyance
as voluntary and fraudulent. The wife was held entitled, under such statutes,
to recover for her loss of ability to work, in Millmore v. Boston Elev. Co.,
198 Mass. 37o (whether she had ever worked or not) ; Green v. Muskegon
&c. Co., 171 Mich. 18 (where she ran a boarding-house) ; and Texas & P.
Ry. Co. v. Humble, 181 U. S. 57. And it is generally held, under such cir
cumstances, that the husband cannot recover for the loss of the wife's earn
ings outside the home, but that he may recover for the loss of her services
in the home; this distinction was made in Riley v. Lidtke, 49 Neb. 139:
Gregory v. Oakland, frc., Co., 181 Mich. 1o1 ; and Blair v. Seitner, &c., Co.,
184 Mich. 3o4. But it is sometimes held that if the wife is working for the
husband, even though outside the home (as, for instance, helping him in
his business), he may recover for the loss of such services. Standen v.
Penna. R. Co., 214 Pa. St. 189; Georgia, &c., Co. v. Tice. 124 Ga. 459. In
cases of the second classfraudulent conveyancesit has generally appeared
that the wife's industry was pretty clearly in the nature of services, and
conveyances based thereon have been set aside as voluntary. Coleman v
Barr, 93 N. Y. 17; Dempster Mill Co. v. Bundy, 64 Kans. 444; Milkman v.
Arthe. 221 Fed. 134, commented on in 14 M1ch. L. Rev. 62. And the same
result was reached in a recent case in Michigan, even though the wife's
work was done in connection with the husband's business and a part of it
was done after the passage of the 1911 statute. Heme v. Rogatsky, 199 Mich.
558. On the other hand, many cases uphold conveyances made under similar
circumstances. Corse v. Reticker, 95 Iowa 25; McNaught v. Anderson, 78
Oa. 4o9; Ford Lumber Co. v. Curd, 15o Ky. 738.
E. H.

An1mals-^Knowledge of V1c1ous Propens1tyOwner not L1able for
Dog Upsett1ng Ford.The defendant's dog had been in the habit of follow
ing and barking at automobiles, and this fact was known to the defendant.
The plaintiff was riding with her husband in a Ford car, when suddenly the
defendant's dog jumped in front of them. By running over the dog, the
car was thrown against an embankment and the plaintiff was injured. Held,
that the plaintiff was not entitled to recover, there being no evidence of a
vicious propensity in the dog. Melicker v. Sedlacek (Iowa, 192o), 179 N.
W. 197.
In general, the owner is not liable for injury inflicted by his domestic
animal unless he can be charged with knowledge of a vicious propensity
which contributed to the injury. Mason v. Keeling, 1 Ld. Raym. 6o6;
Fritsche v. Clcmow, 1o9 Ill. Ap. 335. A dog will not make its master liable
by knocking a person down, where it is not shown that the dog had a pro
pensity for so doing. Forsythe v. Kluckhohn, 15o Iowa, 126. Likewise, the
owner of a turkey is not liable for its frightening a horse. Zumstein v.
Schrumm, 22 Ont. App. Rep. 263. Nor is the owner liable for his dog jump
ing over a fence and landing on the neck of the plaintiff, for the same rea
son. Sanders v. Teape, 51 L. T. N. S. 263. Neither is there any liability
resulting from a chicken flying into the spokes of a bicycle and upsetting
the rider. Hadwell v. Righton [19o7], 2 K. B. 345. Nor from a sow fright
ening a horse so that the driver of an automobile coming from the opposite
direction had to drive into a stone wall in order to avoid hitting the horse.
Higgins v. Searle, 25 T. L. R. 3o1. Undoubtedly, the principal case was cor
rectly decided, for there was no evidence that the defendant's dog had a
vicious propensity for jumping under Fords and causmg them to leave the
road, to the discomfort of their occupants.
CommerceOn, Inspect1on Law w1th Fees Largely Exceed1ng Cost
Inval1d as to Interstate Commerce.An oil inspection statute in the state
of Georgia was attacked on the ground that for a number of years the
amount of the fees fixed by the law had proved to be largely in excess of
the actual cost of the inspection. Held, that the statute was unconstitutional
and void as to interstate commerce. Texas Co. v. Brovm (D. C, N. D.,
Georgia, 192o). 266 Fed. 577.
In the exercise of its police power a state may enact inspection laws
which are valid if they tend in a direct and substantial manner to promote
the public safety and welfare, or to protect the public from fraud and impo
sition when dealing in articles of general use, as to which Congress has not
made any conflicting regulation, and a fee reasonably sufficient to pay the
cost of such inspection may constitutionally be charged, even though the
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property may be moving in interstate commerce when inspected. Pure Oil

Co. v. Minnesota, 248 U. S. 158; Potopsco Guano Co. v. North Carolina
Board of Agr1culture, 191 U. S. 345; McLean & Co. v. Rio Grande R. R.
Co., 2o3 U. S. 38; Asbell v. Kansas, 2o9 U. S. 251. But when such inspection
charge is obviously and largely in excess of the cost of inspection the act
will be declared void as constituting in its operation an obstruction to and
a burden upon that commerce among the states, the exclusive regulation of
which is committed to Congress by the Constitution. Foote & Co. v. Mary
land, 232 U. S. 494; Pure Oil Co. v. Minn., supra. The court in passing
upon a law of this sort is confronted with the difficulty of determining
whether the measure in question is a bona fide inspection law or a veiled
revenue measure. Obviously, laws of the latter type may be divided into
two classes. In the one are those laws whose invalidity necessarily appears
at first glance, as where it is provided that a certain percentage of the pro
ceeds is to be turned over to the state treasurer as part of the general fund,
or that the expense incurred in carrying out the provisions of the act is to
be paid out of a limited portion of the total receipts only and no further
provision is made from the general fund. See Caldwell v. State, 119 N. E.
999; and Wojford Oil Co. v. Smith, 263 Fed. 396. This situation presents
no difficulty and the court can say immediately that the act is unconstitu
tional and enjoin its execution. Where, as in the principal case, however,
the law is valid upon its face, subject only to the objection that the amount
to be collected will prove excessive, the situation is somewhat different. It
seems to be well settled that the court will not declare a statute of this type
invalid in the first instance, since to do so would be to hold the legislature
guilty of bad faith, and the presumption is that if the fees prove excessive
in practice the legislature will reduce them. Red "C" Oil Mfg. Co. v. Board
of Agriculture, 222 U. S. 393. When the facts clearly show, however, that
the excessive charge has been continued over a period of years, the court
is forced to conclude that the act was intended as a revenue measure, under
the guise of an inspection law, and to declare it void accordingly. Foote &
Co. v. Maryland, supra; Standard Oil Co. v. Graves, 249 U. S. 389; Castle
v. Mason, 91 Ohio St. 266. A more striking situation results when the act
also provides for non-inspection duties and evidently contemplates that the
added expense will be borne by inspection fees. Upon its face a law of
this sort is within the first class, but at least in cases where there is a pro
vision for appropriation from the general fund, in case the amount derived
from the fees proves insufficient for the total expense, the court will place
it in the second class and refuse to declare it void in the first instance, on
the ground that inasmuch as there is a possibility that experience may show
that the proceeds are insufficient for both purposes, and since the presump
tion is that the fees will be used lawfully if it is in any w?y possible, the act
may prove valid in practice. Foote & Co. v. Maryland, supra; American
Coal Mining Co. v. The Special Coal and Food Commission of Indiana el al.
(D. C, Dist. of Indiana, Sept. 6, 192o). Fed. .
21 1
CommerceRoundhouse Laborer Injured wh1le Dump1ng Ashes from

Eng1ne Held not Engaged 1n Interstate Commerce.Plaintiff was a laborer
in a roundhouse. He was injured while removing ashes from an engine
which had recently come in carrying interstate freight. The next trip of
the engine was not known, as it hauled both interstate and intrastate trains
and was not under orders. In an action under the Workmen's Compensa
tion Law for injuries, the defendant contended that the plaintiff was engaged
in interstate commerce. Held, the plaintiff was not engaged in interstate
commerce. Doals v. Pennsylvania R. Co. (192o), 183 N. Y. Sup. 915.
The test as to whether one is engaged in interstate commerce seems to
be: was the employee at the time of the injury directly engaged in interstate
transportation or in work so closely related to it as to be practically a part
of it? Cincinnati, etc., R. Co. v. Hansford, 173 Ky. 126. When the work is
done directly on the tracks, bridges, or roadbed of an interstate railroad, it
is uniformly held that the employee is engaged in interstate transportation,
and the situation is not altered by its use as an intrastate railroad at the
same time. Pederson v. Delaware, etc.. R. Co., 229 U. S. 146. Where the
work done is on an engine, car, or other rolling stock, an employee is not
engaged in interstate commerce unless the instrument under repair is desig
nated positively for use in interstate commerce. Narey v. Minneapolis, etc.,
R. Co., 177 la. 6o6. Its character as an instrument of commerce depends
upon its employment at the time, not upon remote probabilities or up 311
accidental later events. Mayer v. Union R. Co., 256 Pa. St. 474. When the
workman is not directly engaged on an instrument of interstate commerce,
but his work is more remotely connected with it, the problem becomes more
difficult. Such work as is so closely related to interstate commerce as to be
in practice and legal contemplation a part of it is interstate transportation.
A guard at a railroad crossing, a workman leaving his work on an inter
state railroad, a brakeman on an intrastate car disconnecting an interstate
car from it, have all been held to be engaged in interstate transportation.
Pederson v. Delaware, etc., R. Co., 229 U. S. 146; Erie Railroad Co. v. Winfield, 244 U. S. 17o; New York Centra!, etc., R. Co. v. Carr, 238 U. S 26o.
A workman on a railroad which has not yet become an instrumentality of
commerce, an employee tearing down a roundhouse rendered useless by
fire, a person taking down fixtures in an interstate roundhouse, have been
held not to be engaged in interstate transportation. Jackson v. Chicago, etc.,
Ry. Co., 21o Fed. 234; Thomas v. Boston & M. R., 218 Fed. 143; Shanks v.
Delaware, etc., R Co., 239 U. S. 556. See Ann. Cases, 1918B, 52.
Const1tut1onal LawDelegat1on of Leg1slat1ve Power.A statute
empowered the state fire marshal, and other named officers, whenever they
should find any building or other structure which, for want of repair, or by
reason of age or dilapidated condition, or for any cause, was especially
liable to fire, and which was so situated as to endanger other property or
persons, to order the same remedied or removed at once. It also provided
that a property owner, who felt he was aggrieved by the order, could appeal
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' to the state fire marshal, who would investigate the matter, but unless he
revoked the order it should be complied with. Failure to comply with the
order was made punishable by a fine; such penalty to be sued for in a jus
tice of peace court or a court of record, with right of appeal. Held, the
statute is unconstitutional as being a delegation of legislative power to the
state fire marshal. People ex rel. Camber v. Sholcm (lll., 102o), 128 N.
E. 377.
The majority of the court rest their decision on the ground that the
statute lays down no rule by which the fire marshal is to determine when a
building is especially liable to fire. What is "proper repair," what shall con
stitute "age and dilapidated condition," are wholly within the discretion of
the fire marshal. He is given arbitrary power to determine these matters
without rule or limitation by which such determination shall be reached,
except that such building shall be especially liable to fire. As the decision
of the fire marshal is final, the property rights of the individual citizens may
be taken away without just compensation or due process of law, as required
by the constitution. Three judges dissented on the ground that the statute
did not confer upon the fire marshal arbitrary authority to determine when
a building was especially liable to fire. They hold that the provision in the
statutt which requires that the penalty can be enforced only by a suit before
a justice of the peace or in a court of record gives the property owner the
right to appear and contest the decision of the fire marshal. It would seem
that the decision of the case must be determined by the construction of this
part of the statute. If, under the statute, an aggrieved property owner
cannot, when sued for the penalty, contest the decision of the fire marshal,
then the decision of the majority is correct. However, it seems to the writer
that the minority view is better, and that, in a suit for the penalty, the
property owner can contest the fire marshal's decision. Unless he has this
right, the suit in such court can have no real value. The statute gave the
right of appeal from the judgment of the trial court. That right can mean
nothing if the only proceeding in the trial court is the formal entering of
judgment against the property owner for the amount of the penalty. It is
not unreasonable to suppose that the legislature intended that a property
owner should, in a suit for the penalty, have the right to contest the decision
of the fire marshal, and it is the duty of courts, in passing on the consti
tutionality of a statute, to give it such construction as will sustain it rather
than one which will destroy it. It is difficult to define the line which sep
arates legislative power to make laws from administrative power to make
regulations. It seems obvious that the legislature could not define in detail
the exact conditions, which under the different circumstances of location,
construction, condition, use, and for lack of repair, or by reason of age or
dilapidated condition. All the legislature can do is to define them in gen
eral terms, and leave the determination of the fact to some administrative
official. In Union Bridge Co. v. V. S., 2o4 U. S. 364, the constitutionality
of an Act of Congress was upheld, which declared that navigation should
be freed from unreasonable obstructions arising from bridges of insufficient
213
height, width and span, or other defects, and which, after declaring this
general rule, imposed upon the Secretary of War the duty of ascertaining
what particular cases came within the rule prescribed by Congress, as well
as the duty of enforcing the rule. To deny to Congress the authority to
delegate to the executive branch of government the exercise in specific
instances of a discretionary power, which from the nature of the case Con
gress could not itself exercise, would be, the courts say, "to stop the wheels
of conduct of public business." In Yick Wo v. Hopkins, 118 U. S. 356, an
ordinance forbade any person to carry on a laundry within the city without
the consent of the board of supervisors, except in buildings of brick or
stone. Plaintiff, a native of China, who had complied with all the existing
regulations for the prevention of fire, was refused such consent by the
board, upon his application. The ordinance was held unconstitutional, as it
conferred upon the board arbitrary power, at its own will, to give or with
hold consent as to persons or places, without regard to the competency of
the persons applying or the propriety of the place selected for carrying on
the business. This case, however, is distinguishable from the principal case.
In Yick Wo v. Hopkins, supra, there was an arbitrary power in the board
to grant or refuse consent, and not a conferring of a discretion to be exer
cised upon a consideration of the circumstances of each case. In the prin
cipal case, the rule of public policy, which is the essence of legislative action,
had been determined by the legislature. What was left to the fire marshal
was not the determination of what public policy demanded, but simply the
ascertainment of what the facts in each case required to be done, according
to the terms of the law. In England Parliament may confer upon adminis
trative boards the power to arbitrarily decide, without hindrance from the
courts, what method of application an Act of Parliament is to have. Local
Gov't Board v. Arlidge [1915], A. C. 12o. See also the article in 32 IIarv.
L. Rev. 447.
I
Const1tut1onal LawMak1ng State Med1cal Assoc1at1on the State
Board of Health, W1th1n the Power of the Leg1slature.An act of the
Alabama legislature making the State Medical Association the State Board
of Health was attacked upon the ground that it was beyond the power of
the legislature to confer the authority given upon a purely private corpora
tion. Held, that the act was valid. Parke v. Bradley (Ala., 192o), 86 So. 28.
The court took the view that by virtue of the act the admittedly private
association became a public board, and that the powers delegated were con
ferred upon the latter organization, and not upon the Medical Association
as such. There was no dispute as to the power of the legislature to pass
health measures and to create a board with administrative functions to cany
out its regulations. The position of the court therefore seems conclusive
as to the principal objection made to the act. A further objection was
raised, however, conceding this view of the effect of the act was correct,
that the members of the board so designated' were in effect necessarily
selected by members of the State Medical Association acting in their private
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MICHIGAN LAW REVIEW
capacities, governed only by the rules of the association, and responsible

neither to the state nor to the people. This raises what seems to be the
real question involved in the case, namely, whether or not a legislature can
delegate to a private corporation or association the power to appoint mem
bers of a public board where the members of the private organization pos
sess some special skill and training which peculiarly fits them to select
proper incumbents for the offices. In the principal case this question is indi
rectly presented, and the court is able to make the somewhat metaphysical
counter that the individuals so selected become members of the association
only, and that their subsequent transition to the public board results not
from the election but from the designation of the association as the state
board. The court is not content to rest upon this somewhat dubious ground,
however, but proceeds to review the authorities which have considered the
proposition directly and have held that such a delegation of the power to
appoint is valid. The following cases have held acts valid providing for the
appointment of medical examiners or members of state boards of health
by private corporations or associations: Schollc v. State, 9o Md. 729; Ex
parte Gerina, 143 Cal. 412; Brooks v. State, 88 Ala. 122; Ex parte Frazer, 54
Cal. 94. Acts delegating the appointment of state dental examiners to dental
associations have also been sustained. Wilkins v. State, 113 Ind. 514; Overfhiner v. State, 156 Ind. 1S7. In Uullock v. Billheimer, 175 Ind. 428, it was
held that the appointment .of members of the advisory committee of the
agricultural station could be delegated to various incorporated agricultural
societies. In Ex parte McManus, 151 Cal. 331, an act of the legislature pro
vided for a state board of architecture, the members of which were to be
chosen by the governor from two associations of architects. There the
question of the validity of a delegation of the appointive power was involved
only indirectly. Nevertheless, the court upheld the general principle that
this power may be giver* to private institutions. In the ordinary state con
stitution there is no direct inhibition against such legislative action. Fre
quent objections to such legislation have been that it confers special privi
leges upon a limited class, and that in the case of corporations it confers
corporate powers by special act, contrary to the usual constitutional pro
vision prohibiting this. It has been held not to be a special privilege within
the constitutional restriction because it is not exercised for the benefit of
the particular individuals but for the general public. Ex parte Gerina, supra;
Ex parte Frazer, supra. It has als been held not to be a corporate power.
Ex parte Gerina, supra; Ex parte Frazer, supra; Overshiner v. State, supra.
In almost all of the cases involving the point courts have stressed the prsctical value of having the members of such boards selected by skilled bodies
having a peculiar interest in the successful administration of the law. This
consideration seems to provide an adequate safeguard for a practice which
might easily become somewhat dangerous. Judging from the comparatively
few cases the practice of delegating such appointive power is still in its
early stages of development, but it is worthy of note that in most of the
cases cited the institutions attacked had long been in existence. In the prin
215
cipal case the association had acted as the state board of health in accordance
with- the act for forty-five years without question.
ContractsCommun1cat1on ov OfferM1stake 1n Telegram.Butler
wired an offer to buy 5o shares of stock, the telegram concluding, "Wire
confirmation." Foley wired acceptance as to 44 shares. Butler wired con
firmation of the 44. Foley, defendant, failed to deliver. He based his
defense on the fact that the telegraph company left the wofd "subject" out
of his telegram by mistake, and that, since Butler asked for an answer by
wire, he made the telegraph company his agent and took the risk of mistake.
Held, Foley's counter proposition was an offer, of which Butler's second
message was an acceptance, and as the offerer makes the telegraph company
his agent, Foley took the risk of mistake and is responsible on the contract.
Butler v. Foley (Mich., 192o), 179 N. W. 34.
Ayer v. Western Union Teh Co., 79 Me. 493; Western Union Tel. Co. v.
Shatter, 71 Ga. 76o, and Sherrerd v. Western Union Telegraph Co., 146 Wis.
197, are strong authorities for the doctrine that if the offerer communicates
his offer by telegram he makes the telegraph company his agent, and is
bound by the offeree's acceptance of the offer as delivered, providing the
offeree had no reasonable grounds for knowing there was a mistake. An
extreme application of the doctrine is seen in Price Brokerage Co. v. C, B.
& Q. R. R. Co. (Mo., 1917), 199 S. W. 732, where the mistake changed the
the price of potatoes from $1.35 to .35 per cwt., there being no potatoes on
the market at anything like the latter figure, yet the court held the sender
of the telegram bound by the contract. See, however, Germain Fruit Co. v.
Western Union Tel. Co., 137 Cal. 598. In Durkee v. Vermont Central R. R.
Co., 29 Vt. 127, and Magic v. Herman, 5o Minn. 424, both cited and relied
upon in the principal case, the question being which copy of the message
was primary evidence, it is said that the one who first uses the wire in a
transaction makes the telegraph company his agent. But the principal case
must stand on the narrower ground that the offerer makes the telegraph
company his agent, irrespective of previous messages. The strongest argu
ment for the above doctrine is to be found in the matter of commercial con
venience. The cases opposed, which are at least as numerous and are
stronger in technical legal reasoning, deny that the telegraph company is the
agent of the offerer with power to make a different contract from that which
he intended. If agent at all, it is only a special agent with specific authority
to deliver that particular message and no other. These cases give the sender
an action in contract or tort against the telegraph company, and if he is
injured by the mistake, the sendee also has an action in tort against the
company, but the sender is not bound by the sendee's acceptance of the
changed offer. Henkcl v. Pufc, L. R. 6 Exch. 7; Strong v. Western Union Tel.
Co., 18 Idaho 389, 4o9; Shingleur v. Western Union Tel. Co., 72 Miss. 1o3o;
Pepper v. Western Union Tel. Co., 87 Tenn. 554; Postal Tel. & Cable Co.
v. Schaefer, 11o Ky. 9o7; Mount Gilead Cotton Oil Co. v. Western Union
Tel. Co., 171 N. C. 7o5. See also 1 M1ch. L. Rev. 588. Undoubtedly, the
2l6
MICHIGAN LAW REVIEW
principal case is correct in result, but not on the basis of agency. In con
tracts there is no offer until it enters the consciousness of the offeree, and
the offer is that which reaches his consciousness, if he interprets reasonably
and in good faith. Here the erroneous telegram reached the consciousness
of the offeree, and was therefore the offer, he having no reason to doubt
the correctness thereof.
Corporat1onsAuthor1ty to Guarantee Contract of Another to
Whom Corporat1on was Sell1ng Goods 1s Impl1ed.A moving picture pro
ducing company contracted with D Company for costumes, also with P for
lumber, 'o use in the production of a film. Upon P refusing further credit.
D Company guaranteed payment of all bills P had or would have against
the producing company. In a suit on the guaranty, held, contract of guar
anty is within the implied powers of the company and is not ultra vires.
Wood's Lumber Co. v. Moore (Cal., 192o), 191 Pac. 9o5.
A corporation has implied power to make all contracts which are essen
tial to the successful prosecution of the business. Bates v. Coronado B. Co.,
1o9 Cal. 16o; Mercantile Trust Co. v. Kiser, 91 Ga. 636. Or such contracts
as are necessary and helpful to the conduct of its authorized business. Timm
v. Grand Rapids Br. Co., 16o M1ch. 371 ; Depot Realty Syndicate v. Enter
prise Br. Co., 87 Ore. 56o. Or which tend directly to promote the business
authorized by its articles. Kraft v. Brewing Co., 219 Ill. 2o5 ; Horst v. Lewis,
71 Neb. 365. It within the above principles, such a contract or guaranty or
suretyship is not ultra vires. Marbury v. Kentucky Union Land Co., 62 Fed.
Rep. 335 ; Wheeler v. Everett Land Co., 14 Wash. 63o ; Winterfield v. Cream
City Br. Co., 96 Wis. 239. For other cases see note, 27 L. R. A. (N. S.) 186.
Whether a corporation's contract of guaranty is valid or ultra vires depends
then on whether it directly furthers the authorized' business or is too remotely
in promotion of that business. In the following situations, as being a direct
benefit, the guaranty was held valid : Loan and Trust Co. guaranteeing bonds
of another corporation, upon sale thereof, Broadway Natl. Bank v. Baker,
176 Mass. 2o4; railroad company receiving bonds in payment of debt, sold
them with guaranty, Rogers Works v. Southern Ry. Assn., 34 Fed Rep. 278;
sawmill company guaranteeing bonds of railroad company for construction
of railroad to timber lands of sawmill company, Mercantile Trust Co. v.
Kiser, 91 Ga. 636; land company, with authority to acquire right of way to
mines, guaranteeing bonds of railroad running to mines in order to secure
its construction, Marbury v. Kentucky Union Land Co., 62 Fed. Rep. 335;
banking company guaranteeing bonds of railroad in which it owns a con
trolling interest. Central Railroad Co. v. Farmers' L. & T. Co., 114 Fed. Rep.
263 ; lumber company going surety on bond of contractor to whom it fur
nishes supplies. Central Lumber Co. v. Kelter, 2o1 Ill. 5o3; Wheeler v. Everett
Land Co., 14 Wash. 63o; brewing company going surety on license bond of
customer, Horst v. Lewis, 71 Neb. 365; Timm v. Grand Rapids Br. Co., 16o
Mich. 371 ; brewing company guaranteeing rent of customer, Halloran v.
Jacob Smidt Br. Co., 137 Minn. 141; Depot Realty Syndicate v. Enterprise
217
Br. Co., 87 Ore. 56o; brewing company guaranteeing rent of hotel in which
its beer was to be sold, IVin1erfield v. Cream City Br. Co., 96 Wis. 239;
Holm v. Claus Lipsius Br. Co., 21 N. Y. App. Div. 2o4; brewing company
guaranteeing purchase price of saloon in consideration of purchaser selling
its beer, Hagerstown Br. Co. v. Gates, 117 Md. 348; a corporation going
surety on the obligation of another in order to procure payment of a debt
due it, In re West of England Bank, 14 Ch. Div. 317; Hess v. W. & J.
Sloane, 66 N. Y. App. Div. 522; cattle company executing a guaranty to
protect itself from probable loss of debt due to it, N. Texas State Bank v.
Crowley-Southerland Com. Co. (Tex.), 145 S. W. 1o27; same situation as
in principal case. But the benefit was considered too remote for the guar
anty to be within the implied powers of the corporation in the following
situations : Bank guaranteeing paper of third party for which it received
no benefit, Bomen v. Needles Natl. Bank, 94 Fed. Rep. 925 ; brewing company
signing appeal bond for customer, Best Br. Co. v. Klassen, 185 Ill. 37; rail
road guaranteeing dividends upon stock in steamship company which ran
to and from terminal of railroad, Colman v. Eastern Counties Railroad Co.,
1o Beav. 1 ; upon stock in, grain elevator company, Memphis Grain & Ele
vator Co. v. Memphis Railroad Co., 85 Tenn. 7o3; upon stock in hotel com
pany, West Maryland R. Co. v. Blue Ridge Hotel Co., 1o2 Md. 3o7 ; land
company guaranteeing dividends upon stock in investment company, Greene
v. Middleborough Town Co., 121 Ky. 335 ; railroad company guaranteeing
payment of expenses of a large musical festival in the city where it does
business, Davis v. Old Colony R. Co., 131 Mass. 258. It appears that the
courts are becoming more lenient, allowing guaranty contracts by a corpora
tion. If the contract has been performed in good faith and the corporation
has had the full benefit of performance, it should not be permitted to rely
on ultra vires as a defense.
CovenantsTenant Held Ent1tled to Enforce Covenant 1n Lease by
Another Tenant.A landlord leased certain parts of a building to one
tenant, giving him the right to sell dry goods. He leased another part of
the building to another tenant with the restriction that he should sell only
women's gloves, corsets and hosiery. Upon a violation of the covenant by
the second lessee, it was held that the first lessee was entitled to an injunc
tion against him. (N. Y. 192o) Staff v. Bemis Realty Co. ct al., 183 N. Y.
S. 886, 111 Misc. Rep. 635.
The point of interest in this case is that the court, passing by the ques
tion whether the recording of the plaintiff's lease was not constructive notice
to the world of his peculiar rights and' the resultant restriction upon others,
held that the plaintiff's equity against the defendant was even stronger than
if the defendant had' had actual notice of the prior lease, because the defend
ant expressly covenanted to limit his use of the premises. A party's right
to avail himself of an equitable servitude in his favor has its basis in the
fact that he has a superior equity to that of the defendant, or else that the
defendant has no equity at all. Upon principle, it would seem that the
2l8
MICHIGAN LAW REVIEW
defendant in the instant case had actual notice that somebody else had rights
in the premises with which he could not interfere. He had actual notice
that if he used the premises for any other purpose than that expressed in
his lease he would be violating his covenant. What difference could it make
to him who enforced the covenant against him? In the case of a building
scheme, for example, any grantee may enforce an equitable restriction against
any other grantee. Bouvier v. Segardi (N. Y., 192o), 183 N. Y. S. 814:
Simpson v. Mikkelsen, 196 Ill. 575 (19o2); Allen v. Detroit, 167 Mich. 464
(1911); Koni v. Campbell, 192 N. Y. 49o (19o8). These authorities show
conclusively that restrictions may be implied, and that a party does not have
to know who may enforce the covenant against him. The situation in the
principal case is closely analogous to the building scheme. The defendant
must have suspected that the entire premises belonging to the landlord were
being leased under certain restrictions. Indeed, that is usually the situation
when such a restriction is put into the grantee's lease. It could make no
difference to the defendant who could require him to live up to his agree
ment. He had actual notice of the limits of his rights in regard to the
premises. Therefore, he has no right to complain that the plaintiff is com
pelling him to refrain from doing what he has already agreed not to do.
Cr1m1nal LawMotor Veh1cle Law wh1ch Made Quest1on of Unrea
sonable Speed One for the Jury, not Vo1d for Uncerta1nty.The peti
tioner was charged with driving his automobile within the city of Pasadena
at a rate of speed in violation of the motor vehicle law, which declared the
operation of a motor car at an unreasonable speed a crime, and left the
question of unreasonable for the jury. In an action questioning the validity
of the statute, held, not invalid for indefiniteness. Ex parte Daniels (Cal.,
192o), 192 Pac. 442.
In Ex parte Jackson, 45 Ark. 158, it was held that a statute making it a
misdemeanor to commit any act injurious to public health or public morals
was void for uncertainty. A statute making it a crime to charge or collect
more than a reasonable rate of toll was also void. Laws which define crime
ought to be so explicit that all men subject to their penalties may know
what acts it is their duty to avoid. Before a man can be punished, his case
must be plainly and unmistakably within the statute. United States -v.
Brewer, 139 U. S. 28o. In James v. Bowman, 19o U. S. 144, the Supreme
Court said : "It would certainly be dangerous if the legislature could set
a net large enough to catch all possible offenders, and leave it to the courts
to step inside and say who could be rightfully detained and who should be
set at large." In Hayes v. State, 11 Ga. App. 379, the court held that a
statute making penal the operation of an automobile at a rate of speed
greater than is reasonable and proper was void on the ground that it furnishet such a net as stated above. The Supreme Court of the United States
invoked the "rule of reason" when it held that the Anti-Trust Act was not
a denial of all restraint of trade, but only a denial of unreasonable restraint
of trade. Standard Oil Case, 221 U. S. 1 ; Tobacco Trust Case, 221 U. S. 1o7.
219
The Ohio court pointed out that it would be impossible to set a rate of speed
that would be suitable under all conditions, and invoked "the rule of reason"
in holding valid a statute similar to the one in the principal case. State v.
Shaefer, 117 N. E. 22o. The Nebraska Court in Schultr. v. State, 89 Neb. 34,
upheld a similar statute. The Texas Court in Solan & Billings v. Pasche,
153 S. W. 672, said by way of dictum that a statute such as was upheld in
the principal case was void for indefiniteness, but held that it was sufficiently
definite as a remedial statute imposing a civil duty so as to render its vio
lation negligence per se. A statute forbidding the driving of automobiles
in access of a certain speed "in the business portion" of cities was not void
for indefiniteness. People v. Dow, 155 Mich. 115. See also r8 M1ch. L. Rrv.
8 1o, and L. R. A. 1918 D, 132.
Dead Bod1esProperty 1n a Corpse.The plaintiff's mother was interred
in a burying ground which had been dedicated to that purpose by the original
owner. Defendant, without the knowledge or consent of the plaintiff, acting
through its employees, disinterred the body, and reinterred it at a place
unknown to the plaintiff. A statute provides that wherever trespass will lie
an action on the case may be maintained. Held, that trespass would lie for
such disinterment, and that title and possession of the burial lot are not nec
essarily involved in the right sought to be protected. England v. Central
Pocahontas Coal Co. (W. Va., 192o), 1o4 S. E. 46.
Although the reasoning of the court is not altogether clear, it would
seem that it considers the corpse as the property of the plaintiff, for, in
holding that trespass would lie, it states specifically that title and possession
of the lot are immaterial. This case goes much further than the great
majority of decisions on this subject, for in most of the decided cases the
courts have refused to recognize the right of property in a corpse. In fact,
the American courts have been almost unanimous in holding that the right
in a corpse is in the nature of a "quasi property" right, and nothing more.
See Keyes v. Konkel, 119 Mich. 55o, and cases there cited. The general view
seems to be that to entitle one to an action of trespass he must have actual
or constructive possession of the soil where the body is interred. Bessemer
Land & Improvement Co. v. Jenkins, 1ll Ala. 135; Meagher v. Driscoll, 99
Mass. 281. In Pettigrew v. Pettigrew, 2o7 Pa. 313, however, the court holds
distinctly that the widow of the deceased has a property right in the corpse,
and the same view is taken in Mines v. Canadian Pacific Ry. Co., 3 Alberta
L. Rep. 4o8. In Larson v. Chase, 47 Minn. 3o7, an action for mutilation of
the corpse, the court indicates clearly that it considers the corpse as the
property of the next of kin. The principal case seems to uphold that prop
osition.
EasementsOra1, Agreement to Restr1ctEnforcement.The vendor
of lots made an oral promise to the vendee that certain building restrictions
in the tatter's deed would be imposed upon the other lots in the area. _ In a
suit to enjoin the conveyance of the other lots free from restrictions, held,
2 SO
MICHIGAN LAW RSVISfV
this was an agreement for the sale of an interest in lands, and void because
not in writing as required by the Statute of Frauds. Ham v. Massiot Real
Estate Co. (R. I., 1919.), 1o7 Atl. 12o5.
Conceding that such a restriction creates an interest in land, and there
being no part performance to take the promise out of the statute, it would
seem difficult to escape the court's conclusion. In Sprague v. Kimball, 213
Mass. 38o, the court, calling such a restriction an equitable easement, refused
to grant relief. In Pyper v. Whitman, 32 R. I. 35, the grantor represented
that all the lots in an area would be laid out according to an unrecorded plat,
which showed the location of a certain street. In a suit to enjoin the grantor
from changing the location of such street, the court held that no easement
had been acquired. See also Norton v. Ritter, 1o6 N. Y. Supp. 129; Squire
v. Campbell, l Myl. & Cr. 459; Gilbert v. Peteler, 38 Barb. 488. On the other
hand, it has been held that a general building scheme maintained from its
inception and relied upon by all parties in interest would create a binding
restriction on all the lots, whether in the hands of the grantor or grantees,
and whether all the deeds contained the restrictions or not. Allen v. City
of Detroit, 167 Mich. 464; Re Birmingham & Dist. Land Co. [18931, 1 Ch.
D. 681. Relief has also been granted on the grounds of estoppel arising out
of reliance upon the grantor's promise. Bunson v. Bultman, 38 N. Y. Supp.
2o9. In Talmadge v. The East River Bank 26 N. Y. 1o5, the court contented
itself by saying that the equity arising from such representations attached
to the remaining lots. See also Hubbell v. Warren, 8 Allen 173; Parker v.
Nightengale, 6 Allen 341. In most of these cases no legal remedy was avail
able, as there was neither privity of contract nor privity of estate between
the parties. This may account for the liberality with which some courts of
equity have regarded such oral restrictions. While the cases are not entirely
in harmony, it may be gathered from the decisions that in the absence of
fraud or part performance relief will not be granted unless there is expressly
or by necessary implication an intention on the part of the grantor that the
restriction shall permanently bind the land retained. Such an intention is
manifested in cases where lots are sold with reference to a general building
plan. See note in 45 L. R. A. (N. S.) 962.
Fore1gn ExecutorsSu1ts by and Aga1nst Fore1gn Executors.Under
certain conditions a statute authorized foreign executors and administrators
to sue and be sued'. D, a foreign executor, was sued in his representative
capacity while within the jurisdiction. D moved to set aside the service.
Held, the court had no jurisdiction and the statute must be construed as
giving privilege of suing in all cases, but as taking away immunity from
suit only in those cases where there are local assets, as any other construc
tion would render that part of the statute unconstitutional. Helme p. Buckelew (N. Y., 192o), 128 N. E. 216.
In the absence of statute the general rule is that a foreign executor
cannot sue or be sued in his representative capacity unless there is a res to
give the court jurisdiction. Jefferson v. Ball, 117 Ala. 436; Greer v. Ferju
221
son, 56 Ark. 324. Moreover, it cannot be doubted that the state may by
statute extend the privilege of suing to foreign executors, but whether it
can destroy the immunity from suit where there are no local assets, and
without the consent of the state granting the letters, is easily distinguishable
upon principle. In one case, however, this distinction was ignored and a
suit against a foreign executor was sustained. Cady v. Bard, 21 Kan. 667;
but the court cites no authorities to sustain its decision. In Thorburn v.
Gates, 225 Fed. 613, the Federal Court was called upon to construe the s?me
statute involved in the principal case, and to avoid holding a part of the
statute unconstitutional limited the operation of that part of the statute
abridging the immunity of foreign executors from suit to those cases where
the law of the state appointing the executor authorized a foreign action.
In a note to that case in 29 Harv. L. Rev. 442, the opinion was asserted that
this was a strained construction and that a more reasonable interpretation
would limit the operation of the statute to ca?es where there were local
assets. This view is adopted in the principal case. For an exhaustive com
pilation of authorities on the general subject, see 27 I, R. A. 1o1.
Hepburn ActCommod1t1es ClauseHold1ng Company.A holding
company acquired all the stock of a coal mining company and all the stock
of the railroad company whose road extended from the mine fields of the
coal company to the market. The organization and operation of the holding
and each subsidiary company was kept entirely separate, but all three had the
same officers and directors. In an action by the government for dissolution
under the act of June 29, 19o6, making it unlawful for any railroad company
to transport in interstate commerce any commodity produced or mined by
it, or under its authority or in which it may have an interest direct or indi
rect, except such commodities as are used by it; held, the coal is mined and
transported under the same authority in violation of the act. Un1ted States
v. Reading Co. (192o), 4o Sup. Ct. 425.
The decision represents another victory for reality, in applying the act,
over the fiction of corporate entity ; and puts into discard one more scheme
to consolidate the ultimate control over production and transportation of a
commodity and yet not violate the act. In United States v. Delaware &
Hudson Co., 213 U. S. 366, it was held that the interest, direct or indirect,
in the commodity was limited to the legal or equitable meaning, and did not
include articles or commodities produced by a bona fide corporation in which
the railroad company is a stockholder. But in United States v. Lehigh Val
ley Railroad Co., 22o U. S. 257, the court held that where the railroad com
pany owned all the stock of the mining company and reduced it to a mere
department, the mining company would not be considered bona fide, and the
act was therefore not avoided by the theory of separate entity. Later a
railroad company owning mines attempted to circumvent the act by organ
izing a sales company, the stock of which was issued to the railroad share
holders in lieu of dividends. The sales company contracted for the output
of the mines and became the legal owner of the coal transported over the
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MICHIGAN LAW REVIEW-
railroad. But because by the contract the railroad company limited the free
dom of the sales company in buying coal and in other matters, it was held
the contract was not bona fide and was merely a means by which the railroad
though parting with the legal title retained an interest and control in what
had been sold. United Slates v. Delaware, Lackawana & Western Railroad
Co., 238 U. S. 516. See also 14 M1ch. L. Rev. 49. In . a later case, Chicago,
Milwaukee & St. Paul Ry. Co. v. Minneapolis Civic Association, 247 U. S.
49o, in which also the separate entity of a corporation used as a mere agency
of carriers was held to be of no avail, the court declared that statements
made in former decisions to the effect that ownership alone of capital stock
in one corporation by another does not create an identity of interest, cannot
be relied upon where the ownership is resorted to not for the purpose of
participating in the affairs of a corporation in the normal and usual manner,
but to create a mere agency or instrumentality of the owning company. It
thus appears that the court has adopted by this line of decisions bona fide
intentions as the touchstone to distinguish the existence or not of separate
corporate entities. And if the railroads do not succeed in devising means
to sell and also keep their great mining interests so as to satisfy the com
modities clause of the Interstate Commerce Act, it may be they can do so
only by a bona fide sale of all mining interests, and limit themselves to carry
ing. The property involved is very large and the problem is not simple.
Ind1ansInd1an Allottee Acqu1res Full Equ1table Estate.An Act
of Congress provided that allotments and trust patents be granted to Indians
with a further provision that the whole legal estate would be granted at the
end of twenty-five years to the allottee or his heirs, and that all such con
veyances shall be subject to the approval of the Secretary of the Interior,
and when so approved shall convey a full title to the grantee. A's grantor,
who was not the heir of the allottee received a patent approved by the Sec
retary of the Interior. Held (Gates, J., dissenting), A took no title as against
the lawful heirs of the allottee. Highrock v. Gavin (S. D., 192o), 179 N.
W. 12.
This decision overrules the recent case of Dougherty v. McForland, 4o
S. D. 1 (1918), decided by the same court, and where it was held that an
allotment was only a trust not binding on Congress, and that a conveyance
approved by the Secretary of the Interior operated to convey the whole estate
in fee simple. In the principal case the majority of the court had changed
their view as to the legal effect of an allotment under the Act of Congress,
and decided that the allotment conveyed the whole equitable title to the
allottee, of which he could not be divested without his consent. The char
acter of the estate of the allottee under different treaties and Acts of Con
gress has been variously stated by the courts. In Hallowell v. Commons,
21o Fed. 793, it was said that the full equitable title passed to the Indian
under a similar provision. In United States v. Chase, 245 U. S. 89, the rela
tion between the government and allottee was in issue, and the Supreme
Court decided that an allotment did no more "than to individualize the exist
223
ing tribal right of occupancy." In Fwoler v. Scott, 64 Wis. 5o9, the facts
and the decision were identical with those of the principal case. However,
the question involved seems to be no more than the construction and mean
ing of Acts of Congress, and other decisions based upon other treaties or
Acts of Congress should hardly be controlling.
Injunct1onSalesman Work1ng for Comm1ss1ons Cannot Enjo1n
Str1ke of Workmen of the Company Empty1ng H1m.In a suit to enjoin
the striking employees of a buggy company, the plaintiff, a salesman whose
sole claim of interest was that of possible interference with his commission
due to the closing down of the corporation's business, was held not to have
sufficient interest to sue without joining the buggy company, and his bill was
dismissed. Davis et al. v. Henry (Circuit Court of Appeals, 192o), 266 Fed.
261.
The chief cases which seem to support the contention that a party wrtb
a special interest may maintain an equity suit to enjoin a strike without join
ing the corporation or company affected practically all involve some recog
nized property interest. In Fordney v. Carter, 2o3 Fed. 454, bond-holders
are allowed to maintain such a suit, while in Ex parte Haggarty, 124 Fed.
441, and Jennings v. United States, 264 Fed. 399, the trustees of mortgage
bonds maintained suits alone to enjoin strikers injuring the corporation, on
the basis of injuries to their own interests. A similar case is that of the
stockholder of a corporation who may maintain a suit to protect his own
interests in a corporation only when the corporation for some reason is not
able or willing to maintain suit itself. In such a case equity will go behind
the corporate fiction and recognize that the stockholders are the real parties
in interest and will protect their rights. See Marshall's Pr1vate Corpora
t1ons, Sees. 299, 3o3. Hence, in the event that the stockholder exhausts all
possibilities in trying to get the corporation or the majority of the stock
holders to sue, his equitable interest in the corporate property will be given
protection. But the principal case is not a suit based upon an equitable or
legal interest in the company's property, but is a mere attempt to protect a
possible interest in the profits of the corporation. If such an interest should
be protected in equity, this would mean that any employee with a possibility
of gain or return from the profits of the corporation might enjoin acts that
endangered that possibility. No court seems ever to have gone to that length.
InnkeeperL1ab1l1ty for Property not Lost through Guest's Negl1
gence.The plaintiff, an experienced traveler, entered the defendant's hotel
and lunched there. The rooms were all occupied. In expectation that a
room would later be vacated so that he could register, he left his grip near
the bellboys' bench in the lobby, without calling anybody's attention to it,
though there were present attendants to take charge of baggage and though
he knew the location of an easily accessible checkroom in the lobby. Here
he could have checked his grip without cost or inconvenience. He then
departed from the hotel, remaining away for several hours. The grip was
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MICHIGAN LAW REVIEW
lost. In an action to recover its value, held, plaintiff's conduct did not con
stitute contributory negligence in law. Swanner v. Conner Hotel Co. (Mo.,
192o), 224 S. W. 123.
The court in a quotation from Read v. Amidon, 41 Vt. 15 (1868), regard
ing the care required of a guest for his own goods, says : "* * * he is bound
to use reasonable care and prudence in respect to their safety, so as not to
expose them to unnecessary danger or loss." In the Vermont case above,
the lower court directed judgment for the defendant, and this was reversed
on the ground that the negligence of the guest was a question for the jury.
The court in the principal case says, "The Vermont case is quite similar tn
the facts of the instant case," but it fails to distinguish between leaving an
article of clothing on a bench in a room in an apparently small inn in 1865,
where the proprietor is personally in charge, no other accommodations being
made for the guest's apparel, and leaving a grip in the lobby of a modern,
busy hotel for ten hours without informing anyone of the fact, though
attendants were present to take charge of baggage and though the grip
was left within twenty feet of an easily accessible free checkroom. The
cases cited by the court are not in point : In Moloney v. Bacon, 33 Mo. App.
5o1, the question did not deal with negligence, the court holding a trunk
"infra hospitium" when delivered' to the place where trunks were ordinarily
received by the hotel and where customary notice of the delivery was given
the hotelkeeper. In Labold v. So. Hotel Co., 54 Mo. App. 567, the court held
it was not negligence for a guest to give his coat to an attendant with appar
ent authority to care for the same, instead of putting it in the checkroom.
The opinion of the dissenting judge represents what would seem the opinion
of a "reasonable man." It reads: "If the plaintiff's own evidence does not
show him guilty of negligence in exposing his hand grip to peril without
the slightest excuse for so doing, I do not know what he could have done
that would be negligence. Plaintiff has no one to blame for his loss except
himself and should not be allowed damages."
InsuranceBreach of Cond1t1onChattel Mortgage, Vo1d for Usury,
Suff1c1ent to Avo1d F1re Pol1cy.Where a fire policy declared that it should
be void if the property insured should be incumbered by a chattel mortgage,
and the assured gave such a mortgage, which was, however, void for usury,
it was held, that the mortgage nevertheless avoided the policy. Lipedes v.
Liverpool & London & Globe Insurance Co. (N. Y., 192o), 128 N. E. 16o.
The rule that conditions of forfeiture are strictly construed against the
party in whose favor they tend to operate is especially applicable to insurance
contracts. Ins. Co. v. Vanlue, 126 Ind. 41o; Downey v. Ins. Co., 77 W. Va.
386; Gilchrist v. Ins. Co., 17o Fed. 279; Baley v. Ins. Co., 8o N. Y. 21 ; 1
Cooley's Br1efs of the Law of Insurance, 633. Such being the attitude
of the law, the decision of the principal case is in effect a departure from
the beaten track of the decisionsa departure which the majority opinion
justifies on the ground that "the moral hazard is the test by which the terms
of the policy are to be construed." But an ineffectual incumbrance does not

increase the moral risk. Rowland v. Ins. Co., 82 Kan. 22o. The minority
view, which undoubtedly represents the weight of authority, maintains the
position that the incumbrance must be a valid subsisting lien upon the prop
erty in order to be such an incumbrance as was within the contemplation of
the parties, and as will effect a forfeiture. Ins. Co. v. Sewing Machine Co.,
41 Mich. 131; Rowland v. Ins. Co., supra; Hanscom v. Ins. Co., 9o Me. 333;
NeaHe v. Woodeock, 44 N. Y. Supp. 768.
For a note on the effect of a valid chattel mortgage upon part of the
goods insured, see 8 M1ch. I_. Rev. 67.
InsuranceNo L1ab1l1ty undkr Pol1cy Exempt1ng Death Result1ng
from "War" for Drown1ng of Insured when Lus1tan1a Sank. Under a
life insurance policy expressly providing that it did not cover death resulting
directly or indirectly or wholly or partly from war, where the insured was
a passenger on the British steamer Lusitania, which was sunk by torpedoes
fired from a submarine of the Imperial German government, and which was
part of its naval force, while a state of war existed and was then being
waged between that government and the United Kingdom of Great Britain
and Ireland, it was held that the insurer waf not liable for the drowning of
the insured. Vanderbilt et al. v. Travelers' Insurance Co. (N. Y., 192o), 184
N. Y. Supp. 54It was the plaintiff's contention that since the transaction violated the
common usages and acceptances of principles of enlightened nations, termed
the laws of war, the death of the insured could not be ascribed to the
excepted condition of the policy. The defendant contended that however
execrable the act of the defendant may have been it was none the less the
result of war. These opposing contentions made it necessary for the court
to define the word "war" as used in the policy. The court defined it as
"every contention by force between two nations under the authority of their
respective governments," and therefore concluded that the defendant was
not liable under the policy. In the case of Bas v. Tingy, 4 U. S. 37, the same
definition was given. In the narrower sense, war has been regarded as con
trolled within absolute law. Grot1us (De Jure Bell1 ac Pac1s Proleg. 28,
and passim) held this view. Phillimore (Volume 3, p. 82) also said: "It is
regulated by a code as precise and as well understood as that which governs
the intercourse of states in their pacific relations to each other." But these
views of modern jurists owe their existence to mutual concessions and are
mere voluntary relinquishments of the rights of war. The Rapid, 8 Cranch.
155. In Bas v. Tingy, supra, it was said that "Every contention by force
between two nations in external matters, under authority of their respective
governments, is not only war but public war One whole nation is at war
with another whole nation, and all the members of the nation declaring war
are authorized to commit hostilities against all the members of the other in
every place and under every circumstance." In Bishop v. Jones and Petty,
28 Tex. 294, it was held that "the general rule depends upon and grows out
of the fundamental principle that when the sovereign power of a state declares
226
MICHIGAN LAW REVIEW
war against another state, it implies that the whole nation declares war and
that all the suhjects or citizens of one are the enemies of those of the other."
See also U. S. v. Active, 24 Fed. Cas. 755. Usage and custom prescribing
restraints imposed for the protection of non-combatants and third persons
generally is merely "a guide which the sovereign follows or abandons at his
will. The rule * * * is addressed to the judgment of the sovereign, and
although it cannot be disregarded by him without obloquy, yet it may be dis
regarded." Opinion by Chief Justice Marshall in Brown v. U. S., 8 Cranch.
11o. It appears then from these authorities that, as far as the courts are
concerned, every authorized act of hostility against the enemy is lawful.
War is governed by no restraints or limitations which any nation is bound
to respect in its dealings with the other. This view, in accordance with that
of the principal case, is maintained by the weight of authority.
New Tr1alsWhere Judge M1sd1rects H1mself on a Po1nt of Law.
Two defendants were sued for a trespass, and the judge of the county
court, sitting without a jury, apportioned the damages between them and
rendered a several judgment against each for the assigned portion. Being
convinced that this was error in law, the judge granted a new trial. Held
that while he could grant a new trial for error committed in point of fact,
he had no authority to do so for error in point of law. Aster v. Barrett &
Hulme [192o], 3 K. B. 13.
The effect of the above decision is to make it impossible for the trial
court to correct such an error, and to force the aggrieved party to an appeal.
The American practice is generally contra. Hawxhurst v. Rathgeb (1898),
119 Cal. 532; Wilson v. City National Bank (1877), s1 Neb. 87. But it is
said that when the error is purely one of law the effect of the award of a
new trial is not a re-trial of the case but only a correction of the error by
the court. Lumbermen's Ins. Co. v. City of St. Paul (19o1), 82 Minn. 497;
Merrill v. Miller (19o3), 28 Mont. 134. In Indiana the practice is in accord
ance with the rule stated in the principal case. Holmes v. Phoenix Mut. Life
Ins. Co. (1874), 49 Ind. 356; Maynard v. Waidlich (1oo1), 156 Ind 562.
PatentsUt1l1ty of Invent1on.Plaintiff sued to recover damages for
infringement of a patent. It was shown on the trial that the apparatus as
described in the patent would not work successfully, although it could be
made to do so by some mechanical changes. Held, the patent was invalid
because of the inutility of the device. Beidler v. United States (192o), 4o
Sup. Ct. 564.
It was quite unnecessary for the court to pass on the validity of the
patent. If the defendant was using essentially the same device as that cov
ered by the patent, then obviously the patented device was usable. "The
patent was itself evidence of the utility of Claim 4, and the defendant was
estopped from denying that it was of value." Westinghouse Co. v. Wagner
Mfg. Co., 225 U. S. 6o4, 616. If the defendant was using an essentially dif
ferent device, equally obviously he was not infringing the plaintiff's patent
RBCENT IMPORTANT DECISIONS

and the validity of the patent was quite extraneous to the case. In going
out of its way to invalidate the patent the court disregards several prior
decisions. In Lowell v. Lewis, l Mason 182, the contention was raised that
the patent was invalid for lack of utility in the device. Mr. Justice Story
held, however, "The word 'useful,' therefore, is incorporated into the act in
contradistinction to mischievous or immoral. * * * But if the invention steers
wide of these objections, whether it be more or less useful is a circumstance
very material to the interest of the patentee, but of no importance to the
public." Ace, Bedford v. Hunt, I Mason 3o2; Kneass v. Schuylkill Bonk, 4
Wash. 9. In Crown Cork & Seal Co. v. Aluminium Stopper Co., 1o8 Fed.
845, the patentee was allowed to recover damages for infringement even
though the device as literally described in his patent would not work at all.
The decision was placed on the ground that it took mere mechanical skill
so to change it that it would work, and that the defendant, therefore, was
using a device which embodied the idea covered by the plaintiff's patent.
Ace. Brun.t-.rick-Balke-Collander v. Backus, etc., Co., 153 Fed. 288. The
principal case cites no authority on the point at all.
TelegraphsCommerce.A contract, made in the state of Alabama for
the transmission of a message from one point in the state to another point
therein, routed by the telegraph company to the point of delivery by way of
a relay station in the state of Georgia, held, an interstate transaction. West
ern Union Telegraph Co. v. Glover (Ala., 192o), 86 So. 154.
The Alabama court in its opinion admits that the trend of authority is
contrary to its view. In fact, its holding on this point of interstate com
merce, it agrees, is not necessary to its decision. Of the numerous cases on
the subject, it finds but two to cite as favoring its view, and even in one of
these the statement on the point is plainly obiter. Telegraph Co. v. Taylor,
57 Ind. App. 93, 1o4 N. E. 771. At first, misconceiving the doctrine of
Lehigh Valley R. Co. v. Penna., 145 U. S. 192 (involving the taxation of
intrastate railways passing for a short distance into another state), some
courts held that if the termini of a telegraph line were in one state a mes
sage between them was intrastate, even though the line passed in part over
the territory of another state. Railroad Commissioners v. Telegraph Co.,
113 N. C. 213; Telegraph Co. v. Reynolds, 1oo Va. 459. Then came the
decision in Hanley v. Kansas City So. R. Co., 187 U. S. 617, which restricted
the doctrine of the Lehigh Valley case, and, in 191o, the amendment by Con
gress of the Interstate Commerce Act of 1887 so as to place interstate tele
grams under the control of Congress on the same footing with the business
of other common carriers. Most states then turned to the interstate com
merce view. Telegraph Co. v. Boiling, 12o Va. 413; Telegraph Co. v. Lee,
174 Ky. 21o, Ann. Cas. 1918-C, 1o26 and 1o36, notes ; Klippel v. Telegraph Co.
(Kan., 192o), 186 Pac. 993; L. R. A. 1918-A, 8o7. The United States Supreme
Court in a most recent case held contrary to the decision in the principal
case, even though it was found that the message there was sent out of one
state into another for the purpose of evading liability under the law of the
228
MICHIGAN LAW REVIEW
former. Telegraph Co. v. Speight (192o), Sup. Ct. Rep. . In Watson >.
Telegraph Co. (N C, 1o19), 1o1 S. E. 81, the court held that a message like
that in the instant case was not interstate, where the mode of transmission
was not the usual and customary one, but was adopted to evade state laws.
As a curb on fraud this view may be desirable. As a practical matter we
must consider facts, not motives. Telegraph Co. v. Mahone, 12o Va. 422.
The fact must be tested by the actual transaction, and the transmission of a
message through two states is actually interstate commerce. Kirkmeyer v.
State of Kansas, 236 U. S. 568, 59 L. Ed. 721. From the beginning state
courts, jealous of the power of their own commonwealths, have naturally
leaned towards the intrastate view. While the United States Supreme Court,
as naturally, is inclined to enlarge the scope of federal authority. The gen
eral tendency of the last ten years has been to enlarge federal control in
these fields. See in this connection 16 M1ch. L. Rev. 379.
Tr1alCoerc1on of Jury Revers1ble Error.In a prosecution for viola
tion of the Prohibition Act, the jury reported that they were unable to agree.
The court instructed the jurymen that, should they be unable to arrive at a
verdict, it would be necessary for the court to discharge them for the remain
der of the term. On appeal of the defendant from the conviction, it was
held, that such an instruction made for the purpose of coercing a jury is
reversible error. People v. Strzempkowski (Mich., 192o), 178 N. W. 771.
The court may properly urge upon the jury the necessity of their coming
to a verdict. Pierce v. Rehfuss, 35 Mich. 53; White v. Colder, 35 N. Y. 183.
As a reason for this necessity, the court may advance the expense to the state
of a retrial, Kelly ct al. v. Doremus et al., 75 Mich. 147 (but see Railway Co.
v. Ba*ber (Tex.), 2o9 S. W. 394, 17 M1ch. L. Rev. 6o7) ; or the expense to
the parties, Pierce v. Rehfuss, supra; or the length of time expended on the
case at the present trial, Shely v. Shely, 2o Ky. Law Rep. 1o21 ; Knickerbocker
Ice Co. v. Penn. R. Co., 253 Pa. 54- But it is not proper to coerce the jury
to arrive at a verdict, either by threatening to keep them without food, Han
cock v. Elam, 62 Tenn. 33 ; or suggesting the incompetence of the minority
of the jury, Twiss v. Lehigh Valley Ry. Co., 61 N. Y. App. Div. 286; or by
threat to discharge. People v. Strzempkowski, supra. The line of demarca
tion seems to be between using reasonable means to urge the jury to arrive
at a verdict. White v. Fulton, 68 Ga. 511, and threats for the purpose of
coercing them, Hancock v. Elam, supra. However, it is possible that the
court, in the principal case, misconceived the anxiety which a jury might have
on being threatened with discharge for the remainder of the term.
Trover and Convers1onMeasure of Damages for Convers1on of
T1mber.Trees were unlawfully, but not willfully, cut, and the cut timber
converted. Held, the measure of recovery in trover is the value of the tim
ber at the time and' place of conversion, with interest, with no deductions
for labor performed upon the timber anterior to the consummation of the con
version by actual removal. West Yellow Pine Co. v. Stephens (Fla., 192o),
86 So. 241.
229
The court here announces the measure of damages in cases of the con
version of realty as first pronounced in Martin v. Porter, 5 M. & W. 352,
and followed in Morgan v. Powell, 3 Q. B. 278. This rule, though favored
in cases where the taking was willful or fraudulent, was held inapplicable
where the defendant acted inadvertently and in the honest belief that he
had a right to do what he did. Where the taker acted in good faith, it was
held more reasonable that the "estimate should' be the fair value of the prop
erty in situ, before severance." Wood v. Morewood, 3 Q. B. 44o. note. This
distinction between willful and innocent taking was followed in Jegon v.
Vivian, I,. R 3, Ch. 742, and in Li1nngstone v. Rawyards Coal Co., 5 App.
Cas. 39. In America, Forsyth v. Wells, 41 Pa. 291, established the doctrine
that where the defendant acted in good faith he should be allowed the value
of his labor and the measure of damages should be the value of the property
before the wrongdoing he-ran. The trend of authority shows that Amer1can
courts have taken note of the injustice and oppression of the rule of Martin
v. Porter, supra, and of the principal case, where the taking is not willful,
but innocent. The strict rule may cause trespassers to be more careful, yet
it gives the injured party more than just compensation for the injury he has
suffered, and fails to distinguish between fraud and mere mistake. Sedg
w1ck, Damages [9 Ed.], Sec. 5o3.
TrustsConstruct1ve TrustsConveyance w1th Oral Agreement to
Reoonvev.S and his mother, the defendant, owned undivided parts of an
estate. S conveyed his interest to D to enable her to raise money by mort
gage, on an oral agreement to reconvey when the mortgage should be paid.
D sold the property after the death of S, repudiating the oral agreement,
and P, the wife and heir of S, brings action to enforce a trust by implication,
arising from the fiduciary relation and the repudiation. Held, that a trust
by implication, excepted from the Statute of Frauds, arises. Silvers v.
Howard et al. (Kan., 102o), 1qo F'ac. 1.
The court says that it is going too far to say that, in the absence of
fraud, a trust can be raised wherever it is against equity to retain property,
but finds "constructive fraud" in the abuse of the fiduciary relation. By the
weight of authority in America, the parol evidence rule and the statute of
fraud's form insurmountable objections to enforcing a constructive trust in
the above situation, or where grantee agrees to hold in trust, Titcomb v.
Morrill, 1o Allen 15, unless there is dishonest intention at the time of con
veyance, Patton v. Beecher, 62 Ala. 579; Revel v. Albirt, 162 N. W. 595 ; or
a special fiduciary relation. Biggins v. Biggins, 133 Ill. 211; see Bullenkamp
v. Bullenkamp, 43 N. Y. App. 51o. But there should be no difference between
dishonest intention at the time of conveyance and after conveyance; see
Gibben v. Taylor, 139 Ind. 573. The constructive trust arises not because of
the parol agreement but because of the grantee being unjustly enriched
thereby. The English cases recognize this. Hutchins v. Lee, 1 Atk. 447;
Davies v. Otty, 35 Beav. 2o8; Haigh v. Kaye, L. R. 7 Ch. App. 469; Booth v.
Turle, L. R. 16 Equity Cas. 182; Peacock v. Nelson, 5o Mo. 256 (semble).
230
MICHIGAN LAW REVIEW
California finds no difference between dishonest intention at the time of con

veyance and later. Hillyer v. Hynes. 33 Cal. App. 5o6; Hatcher v. Hatcher,
264 Pa. St. 1o5, accord. And in a case of confidential relationship, Bradley
v. Bradley, 165 Cal. 237, the court talks about the grantee taking an uncon
scionable advantage over the confiding trustor, although in the same case,
which came up later, 37 Cal. App. 263, the court simply said that the breach
of the promise is "constructive fraud" where there is a confidential relation,
thus declaring in accord with the principal case. Yet, finding "constructive
fraud" where there is a breach of promise by one in a confidential relation
is a departure from the logic of the situation. A constructive trust is a
remedial device to do justice, and has nothing to do with the statute of
frauds. See Davies v. Otty, supra. One wonders if the American courts
will not eventually put it squarely on this ground. See article by G. P.
Costigan, Jr., 12 M1ch. L. Rev. 515.
TrustsInvestmentsCorporate Stocks.A trustee invested trust
funds in preferred stock of a private corporation which failed. In an action
by the beneficiaries against the trustee for losses, held, that he is not liable
In re Buhl's Estate (Mich., 1920), 178 N. W. 651.
This case decides this point for the first time in Michigan. It follows
the Massachusetts rule, substantially, allowing a trustee to invest in the stock
of a private corporation if the corporation is one in which a prudent man of
intelligence in such matters would invest when seeking a permanent invest
ment, the primary object of which is the preservation of the fund, the obtain
ing of income being of secondary importance. This rule was laid down in
dicta in Harvard College v. Amory, 7 Pick. 446, and is followed in Massa
chusetts and some other states. Lovell v. Minot, 2o Pick. 116 (notes secured
bv stocks in manufacturing company) ; Kimball v. Whitney, 233 Mass. 321,
in which the court upheld investment in certificates of an unincorporated
holding company ; Washington v. Emery, 57 N. C. 32 (administrator) ; see
Dickinson, Appellant, 152 Mass. 184. The opposing rule in the United States
is the so-called New York rule, which holds that the fiduciary relation neces
sarily excludes placing funds beyond control of trustee, where they can be
exposed to the hazard of loss or gain, according to the success of the enter
prise, in the absence of authority given in the trust instrument, or by statute
or order of the court controlling the trust. King v. Talbot, 4o N. Y. 76'
Worrell's Appeal, 23 Pa. 44 (guardian) ; Commonwealth v. McConnell, 226
Pa. St. 244 (lunatic committee) ; Tucker v. State, 72 Ind. 242 (guardian) :
see White v. Sherman, 168 Ill. 589. This is the majority rule. Authority of
the settlor, however, given in the trust instrument, protects the trustee.
Willis v. Braucher, 79 Ohio St. 29o. It seems as though the New York
courts recognize a harshness in the rule. In Matter of Hall, 164 N. Y. 19C,
where authority was given to invest in real or personal securities as trustees
should see fit, the court intimates that if they had invested in stocks other
than those of new and untried companies, they would not have been liable.
And in In re McDowell, 169 N. Y. S. 853, where trustees by the instrument

were given discretion, the court intimates that if they had invested in sealoned securities they would not have been liable. And sec In re Tower's
Estate, ->S3 Pi. St. 3Qt>. The principal case goes only so far as to allow
investment in preferred stock, but it would be expected that 1he court would
go as far as the Massachusetts court. It would seem that Michigan has fol
lowed the wiser rule, to apply in the situation where the trustee is without
specific authority, in this day where funds are many and gilt-edged invest
ments are few, and where many corporations are as safe a permanent invest
ment as are the orthodox permissible trust investments. See McK1nney,
L1ab1l1t1es of Trustees 1or Investments; 16 Ann. Cas. 69.
TrustsTrust Funds M1ngled w1th Funds of TrusteePresumpt1on
1n Case op W1thdrawals and Subsequent Depos1ts.A trustee wrongfully
mingled trust funds with money of his own in his personal bank account.
Withdrawals reduced the balance to less than the amount of the original trust
fund. Subsequent deposits by the trustee from his own money left a balance
greater than the amount of the trust fund. In an action to recover the money
thus wrongfully mingled, held, that even though there was no actual intent
to make restoration, the trustee's motive in making these deposits is imma
terial and he must be presumed to have restored the trust fund. Hungerford
v. Curtis (R. I., 192o), 11o Atl. 65o.
Where the trustee has wrongfully mingled his money with trust funds,
:>ny withdrawals by him will be presumed to have been made from his own
money. Thus, so long as a balance remains equal to the amount of the trust
fund, the claimant can have full satisfaction. Knatchbull v. Hallett, 13 Ch.
D. 696; Board of Fire and Water Commissioners v. Wilkenson, 119 Mich.
6SS; Southern Cotton Oil Co. v. Elliolte, 218 Fed. 567. If, after making with
drawals resulting in a balance less than the original trust moneys, the wrong
doer makes deposits from other sources, such sums cannot be attributed to
the trust account. Powell v. Mo. & Ark. Land Co., 99 Ark 553; Covey v.
Cannon, 1o4 Ark. 55o; Board of Commissioners v. Strawn, 157 Fed. 49;
Hewitt v. Hayes, 2o5 Mass. 356; American Can Co. v. Williams, 178 Fed. 42o.
Cases holding that such additions must be regarded as a restoration of the
trust funds will be found to rest, it is believed, on an actual intent of the
wrongdoer to make restitution, or upon circumstances from which such an
intent could reasonably be inferred. Jeffray v. Towar, 63 N. J. Eq. 53o;
State Savings Bank v. Thompson, 128 Pac. 112o; United National Rank v.
Weatherby, 7o App. Div. (N. Y.) 279; In re Northrup, 152 Fed. 263. At least
in the face of an intent to the contrary, no court seems to have indulged in
the presumption that the wrongdoer meant to make restoration. It is sub
mitted that the holding of the court in the instant case to the effect that the
actual intent is immaterial is at least misleading. The presumption that the
wrongdoer meant to make reparation may not be a violent one, in view of
his obvious duty to do so, but at the most it is no more than a presumption
and cannot stand in the face of evidence. Such is the rule with reference
to the presumption that the wrongdoer withdraws his own money first.
MICHIGAN LAW REVIEW

Covey v. Cannon, supra. For an exhaustive treatment of this whole subject,
see article by Professor Scott on the "Right to Follow Money Wrongfully
Mingled with Other Money," in 27 Harv. L. Rev. 125. See also Scott's Cases
on Trusts, pp. 547-548, note.
Workmen's Compensat1on ActInjury Ar1s1ng Out of and 1n Course
of Employment.An employee loading wagons of straw at a stack sought
rest in the shade of a box car during his leisure period, and fell asleep
and was fatally injured by the moving of the car. Held, the injury did not
arise out of or in the course of the employment, within the meaning of the
Workmen's Compensation Act. Weis Paper Mill Co. v. Industrial Commis
sion et al. (III., 192o), 127 N. E 732.
The statutes of most of the states require that in order to recover under
the Workmen's Compensation Act for an injury received, the injury must
arise out of and in the course of employment. The difficulty is in the appli
cation of this rule. The court in the principal case held that in order to
recover under the act the accident must have resulted from a risk reason
ably incidental to the employment ; and a risk is incidental to the employment
when it belongs to or is connected with what the employee has to do in ful
filling his contract of service. In Brown et al. v. Bristol I^ast Block Co.
(192o), Vt. , 1o8 Atl. 927, the court said: "An injury arises in the
course of employment when it arises within the period of the employment,
at a place where the employee may reasonably be, and while he is reasonably
fulfilling the duties of his employment; and an injury arises out of the
employment when it occurs in the course of it, and as a proximate result of
it, or when the injury is a natural and necessary incident or consequence of
the employment, a risk being incidental to the employment when it belongs
to or is connected with what a workman has to do in filling his contract."
In Haggard's Case, Mass. , 125 N. E. 565, where a city's employee dur
ing the noon hour sat to eat his lunch on the railroad track, leaning against
a car, and was injured when the car was kicked, it was held that the injury
was not in the course of his employment by the city to entitle him to com
pensation under the Compensation Act; the court saying that plaintiff was
not in a place in which it was necessary for him to be in the course of his
work, or in going to or coming from it. The act in which he was engaged
when injured had no relation to his employment. He chose to go to a dan
gerous place where he had no business to go, incurring a danger of his own
choosing and one altogether outside any reasonable exercise of his employ
ment. In Buvia v. Oscar Daniels Co., 2o3 Mich. 73. the court said : "An
injury arises out of the employment within the meaning of the Workmen's
Compensation Act when there is apparent to the rational mind, upon con
sideration of all the circumstances, a causal connection bstween the condi
tions under which the work is required to be performed and the resulting
injury." Where an employee voluntarily puts himself in a place of danger,
where he is not required to go, the employer is in no way responsible for
resulting injury- Therriault v. England et al., 43 Mont. 376, 116 Pac. 581.

Upon the authority of these cases the decision in the principal .case is
undoubtedly correct, and the same conclusion would probably be reached in
all jurisdictions. It is apparent, upon all the circumstances, that there was
no causal connection between the conditions under which the work was
required to be performed and the resulting injury. The agency which pro
duced the injury was in no way connected with the work performed by the
employee. It cannot be said that while the employee was lying down to
rest himself he was doing any service required by his employment, and it is
impossible to see wherein his work exposed him to the danger which resulted
in his injury. The spot he chose was dangerous. The evidence showed that
a switch engine came upon the tracks twice daily. It could not have been
contemplated in the contract of employment that when the employe had an
interval in which he could rest that he would lie down in such a place. The
purpose of the Workmen's Compensation Act is not to insure the employee
against all injuries, but to protect him against a risk of hazard taken to per
form the master's task. Pace v. Appoonoose County, 184 la. 498, 168 N. W.
g1C. See 17 M1ch. L. Rev. 28o; 16 M1ch. L. Rev. 179, 462.
BOOK REVIEWS
Internat1onal Waterways, by Paul Morgan Ogilvie. New York, The Macmillan Co., 192o. Pp. vi, 424.
Part I of Mr. Ogilvie's book is entitled, "The Evolution of the Principle"
and is intended to serve as an introduction to the subject of international
rights on inland navigable waterways. Systematic treatment of the subject
is reserved for a later volume. Assuming that free navigation on inland
waterways is the natural sequence of freedom on the seas, the author sketches
briefly the growth of maritime enterprise, the early development of mari
time law, the history of maritime discovery, and the triumph after long con
troversy of the freedom of the seas- One short chapter is devoted to free
dom of navigation on inland waterways. Notwithstanding its somewhat
superficial and fragmentary character, this part of the book will be of interest
to those who have no time in which to read the more exhaustive and schol
arly works upon which the author mainly relies. Part II is a unique and an
invaluable contribution. It is a reference manual to the treaties, conventions,
laws, and other fundamental acts which govern the use of inland waterways.
The water highways of the world are grouped according to continents and
listed in alphabetical order under each continent. Documents are arranged
in alphabetical order under each waterway and the more important docu
ments are accompanied by selected references to secondary sources. The
entire manual is covered by an exhaustive index. All who are interested in
the subject of treaty rights on inland waterways, whether in connection with
practice or with research, will find this reference manual an indispensable
guide.
Edw1n D. D1ck1nson.
MICHIGAN
LAW
Vol. XIX.
REVIEW
JANUARY, 192 1
No. 3
THE SUSPENSION OF THE ABSOLUTE POWER

OF ALIENATION.
IN his Nature and Sources of Law, John Chipman Gray says,
"The Common Law has often been reproached with the lack of
precision and certainty in its definitions, but, in truth, it is a great
advantage of the Common Law, and of the mode of its development
by judicial decision, that its definitions are never the matters re
solved by the cases; they are never anything but dicta. If at the
end of the sixteenth, or of the seventeenth, or even of the eighteenth
century, there had been definitions binding by statute on the Courts ;
if the meaning of 'contract', and 'malice', and 'possession', and 'per
petuities' had been fixed, what fetters would have been imposed on
the natural development of the Law. And it is the great disadvan
tage of a code, that practising lawyers and jurists alike are hampered
by the cast-iron classification and definitions of a former generation,
which, in the advancement of legal thought and knowledge, are now
felt to be imperfect and inadequate."1 Confining the illustration to
the word 'perpetuities' the above quotation is so apt to the purpose
of this article that it may well serve as a text for it.
By statute adopted in 1828, taking effect in 183o, New York at
tempted a legislative definition of perpetuity.2 This definition has
been adopted, directly or remotely, in whole or in part, by many other
states.3 It was a premature attempt at definition, and it is intended
* Gray, The Nature and Sources of the Law, Ch. I, Sec. 16.
1 R. S., pt. 2, c. 1, tit. 2, Sees. 14, 15, and 16.
* ArizonaRev. Sts. of 1913, C1v1l Code, Sees. 4679-4681.
CaliforniaC1v1l Code, Sees. 715, 716, 772.
IdahoI Rev. Codes, Sees. 3o67, 3o72.
236
MICHIGAN LAW REVIEW
here to point out some of the anomalies and inconsistencies which

have resulted from it.
Professor Gray states the Rule again Perpetuities as follows : "No
interest is good unless it must vest, if at all, not later than twentyone years after some life in being at the creation of the interest."4
Independent of statutory modification this would now generally be
conceded as an accurate general statement of the rule.5 From this
it appears that only non-vested interests can come within the pro
hibition of the rule. All present interests are vested. Accordingly
neither present estates, nor vested future estates ever come within
the operation of the Rule against Perpetuities, whether alienable, or
inalienable.
Serious question has, however, been raised as to whether or not
all future non-vested, or contingent interests, are subject to the rule,
it being contended that no alienable interest, even though future and
contingent, is within the policy that the rule is intended to subserve.7
Indiana2 Burns' Ann. Sts., Sec. 3998.
IowaCode of 1897, Sec. 29o1.
KentuckyI Ky. Sts. (1915), Sec. 236o.
MichiganHowell's Sts. [2nd ed.], Sees. 1o636-1o638.
MinnesotaGen. Sts. (1913), Sees. 6664-6666.
North DakotaComp1led Laws (1913), Sees. 5287, 5315.
OklahomaRev. Laws (191o), Sees. 66o5, 66o8.
South Dakota2 Comp1led Laws (1913), C1v1l Code, Sees. 224, 252.
WisconsinW1s. Sts., Sees. 2o38-2o4o.
Statutes relating to accumulations and statutes relating to personal prop
erty only are not included in the above references.
'Gray, Rule aga1nst Perpetu1t1es, [3rd ed.], Sec. 2o1.
8London & S. W. Ry. Co. v. Gomm, 2o Ch. Div. 562; In re Trustees of
Hollis' Hospital L. R. [1899], 2 Ch. 54o; In re Ashforth, L. R. [19o5I. 1 Ch.
535; Matter of Wilcox, 194 N. Y. 288, 296; Winsor v. Mills, 157 Mass. 362;
Sanders, Uses and Trusts, [4th ed.], Vol. I, p. 196; Lew1s, Perpetu1t1es,
pp. 163, 164. See, however, Chall1s, Rfal Property, [3rd ed.], p. 180. Also
Kales, "Problems of Gray's Rule Aga1nst Perpetu1t1es," 2o Harv. L. Rev.
192, 198.
8Gray points out in his perpetuities, (3rd ed., Sees. 234-236), that some
American cases are not in strict accord with the statement above made, but
they are not in harmony with either, the weight of authority, or fundamental
theory.
'Reeves, Real Property, Vol. II, Sees. 956-959; Fowler, Personal
Property Law op the State of New York, [2nd ed.], pp. 329-331 ; Fowler,
Real Property Law of the State of New York, [3rd ed.], pp. 27o-276.
SUSPENSION OF POWER OF ALIENATION
37
This has been approved and acted upon in decision." Even Profes
sor Gray, though arguing for the reasonableness of the extension of
the rule to future contingent alienable interests, said, "Since the
original purpose of the Rule against Perpetuities was to restrain
one mode of tying up estates, it would not have been inconsistent
with that purpose to have held that contingent interests, if alienable,
did not come within the Rule, but, as will appear in this chapter,
the Rule has been extended so as to cover all future interests whether
alienable or not, and this extension, though not a logically necessary
consequence of the establishment of the rule, is now well settled, and
it is a reasonable extension."" The decisions referred to have been
overruled,10 and it is believed that this is "a logically necessary con
sequence" of the policy directing the establishment of the rule.
Let us examine that policy for a moment. Professor Gray has
said, as others have said, "The policy of the law is that property
should not be taken out of commerce."11 Unfortunately this tells
us little. The word 'commerce' as used in connection with chattels
personal ordinarily implies both the exchange in legal rights and the
physical transportation of the chattels. The latter sense is that which
is stressed when the desirability of commerce is urged. But phy
sical transportation of the subject matter of property in land can
occur if at all only within insignificant limits. The only 'commerce'
of any extent that can occur in connection with such property con
sists in the exchange of legal rights. And since it is in connection
with interests in land that the Rule against Perpetuities, though
applicable to chattels personal, is most frequently applied, it is the
9See cases referred to and discussed in Gray's Perpetu1t1es, [3rd ed.],
Ch. VII.
8Gray, Rule aga1nst Perpetu1t1es, [3rd ed.], Sec. 268. See also Sec.
278 where he says, "To subject future contingent interests presently alienable
to the Rule against Perpetuities is an extension of the Rule beyond the needs
which gave it birth." However, in an article entitled, "Remoteness of Chari
table Gifts," 7 Harv. L. Rev. 4o6, 41o, he answers the following question in
favor of the second alternative, "Is a remote future interest objectionable only
because for too long a period there may be no one who can give a good title ;
or is it objectionable also because the policy of the law does not allow in
terests so uncertain in value to hamper a present ownership?" See also Rule
aca1nst Perpetu1t1es, [3rd ed.], Sec. 6o3 f.
"Gray, Rule aga1nst Perpetu1t1es, [3rd ed.], Sees. 275-277.
" Rule aga1nst Perpetu1t1es, [3rd ed.], Sec. 6o3a.
238
MICHIGAN LAW REVIEW
desirability of commerce in property in land that has been in the

minds of those engaged in working out the Rule.
The Rule against Perpetuities is a rule of policy founded upon
some supposed public benefit justifying, in the cases coming within
its scope, the thwarting of an individual desire. What public benefit
can result from the exchange of legal rights or interests in land?
Undoubtedly the chief benefit consists in the resulting greater utiliza
tion of the subject matter of such property.12 What conditions are
essential to the procuring of a high degree of utilization of land?
Certainly one essential condition is possession by one whose tenure
is reasonably free from hazards beyond his control. Efficient use
of land may require a permanent investment of capital which will
not be made by one who is uncertain of his tenure. Another essen
tial condition is the ability of the possessor to place another with
like permanency of tenure on the land in his stead. For many
reasons it may be impossible for the one in possession of land to be
able to use it to advantage. In order that such land may be used
to capacity, he should be able to dispose of it to another who can.
In other words, to secure a high degree of utilization of land, it
should be possessed by those having an assured interest with free
dom to use at their discretion coupled with the power to convey to
others a like interest. This ideal the law has with rare exception
attemped to secure.
This condition may be, however, by no means desirable in the
view of the creator or grantor of the estate in possession. For
various reasons he may wish to impose his will upon the possessor
in such a way as to lessen the security of his possession, and to re
strict his freedom of use and disposition. The law has refused to
permit him to do this except by the creation of a future interest in
some form.18 The power to create future interests of certain kinds
having been recognized in the creator and grantors of estates in
"There are possible social interests to be furthered by such freedom of
alienation, such as securing a wider distribution of the ownership of land,
but it is believed that such interests have had, as compared with those re
ferred to in the text, relatively little influence upon the development of
the Rule.
"Exceptions to the statement of the text exist in the case of the separate
estates of married women, and in the case of spendthrift trusts where
recognized.

possession, the question becomes, what limitations will be placed
upon the power in the interest of the ideal referred to above?
The limitations eventually imposed were the rules against re
straints on alienation and the Rule against Perpetuities.14 The rules
against restraints an alienation and the Rule against Perpetuities
alike operate by declaring void future interests because of their
tendency to interfere with the freedom of the owner of the estate
in possession. The former are directed against future interests, the
object of whose creation is the prevention of the exercise by the
owner of the preceding estate of his power of alienation.19 The Rule
against Perpetuities is directed against future interests without re
gard to the object of their creation. But its object is, as is the object
of the rules against restraints on alienation, to promote the utiliza
tion of land by offering security in possession and freedom of use
and disposition, to the owner of the present estate.
A brief review of the course of decision will show the relationship
between the rules against restraints on alienation and the Rule
against Perpetuities. By the fifteenth century at least it had been
held that a condition or limitation intended to restrain the alienation
of a fee simple by the owner of it was void.18 At about the same
time the courts were seeking to remove the restrictions placed on the
owner of the present estate by the Statute De Donis. They eventu
ally held that the tenant in tail could bar the heirs tail and the re
versioners and remaindermen of the rights guaranteed them by De
Donis by suffering a common recovery.17 When it had once been
held that an entail could be disentailed in a certain manner, condi
tions against disentailing in that manner began to be imposed upon
grants of such estates. Though conditions against alienation of fees
tail had been sustained previously as in accord with the policy of
De Donis, when the policy of that statute was reversed by the courts
"Gray, Rule aga1nst Perpetu1t1es, [3rd ed.], Sec. 6o3a.
"The rules against restraints on alienation are, of course, wider in their
scope than is here indicated. They operate to render void direct attempts by
the grantors of estates to render them inalienable by withholding from the
grantees the powers of alienation they would otherwise have, as well as in
direct attempts to accomplish the same result by imposing a gift over in the
form of a future interest to a third person as a penalty. It is the latter effect
of such rules that is referred to in the text.
"Gray, Restra1nts on Al1enat1on, [2nd ed.], Sec. 19.
11 D1gby, H1story of the Law of Real Property, [5th ed.], pp. 24o-258..
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MICHIGAN LAW REVIEW
by the approval of disentailing devices in the form of fines and

common recoveries the courts began to frown upon efforts of
creators of estates to create unbarrable entails. Accordingly condi
tions against suffering a common recovery or levying a fine were
declared void.18 Such conditions were called perpetuities, and to
them the word perpetuity owes one of its first applications in
our law.1*
Such conditions are restraints on alienation in the modern sense.
In applying the word 'perpetuities' to them, emphasis is undoubtedly
placed upon the condition which would result if they were sustained,
and if they should accomplish their purpose. This result would be to
secure a fixed devolution of the property regardless of the wishes
of the successive owners subsequent to the creator of the estate tail.
That fixed devolution was undoubtedly in the minds of the courts
when they used the term 'perpetuity.' But the reason they objected
to this fixed devolution was for the same reason that they objected to
other conditions or limitations restraining the alienation of estates
in land, i. e. their tendency to interfere with use and disposition by
the owner of the estate in possession.
At about the same time this attempt to revive the unbarrable entail
was being frustrated, there was tried the expedient of creating par
ticular estates for life in the first taker with remainder in tail. Since
these remainders were usually to unborn persons, they were usually
contingent. Because contingent common law remainders were de
structible by the owner of the estate in possession, the life estate and
remainders were created in use to be executed by the Statute of Uses
in hopes that contingent remainders so created would be held in
destructible. This device was also called a perpetuity.20
It was held, however, that even though created through the opera
tion of the Statute of Uses, contingent remainders were destructible
by the life tenant.21 Hence this device proved unsuccessful. Not,
it will be noted, by declaring the future interest void in the first in
stance, but by subjecting it to the control of the owner of the estate
in possession.
" Corbet's Case, I Co. 83b ; Bacon, Use of the Law, Law Tracts, 145 ;
Gray, Restra1nts on Al1enat1on, [2nd ed.], Sees. 75-77; Gray, Rule aga1nst
Perpetu1t1es, [3rd ed.], Sees. 141a-141c.
"Gray, Rule aga1nst Perpetu1t1es, [3rd ed.], Sec. 141c
"Gray, Rule aga1nst Perpetu1t1es, [3rd ed.], Sec. 141c.
" Chudleigh's Case, 1 Co. 12oa.

But while contingent remainders even though created by way of
use had been held to be destructible, it was shortly held that spring
ing and shifting uses and executory devises were not destructible by
act of the owner of the estate in possession.22 Here, then, were
interests that obviously should be controlled in some way. The
method of control was eventually laid down by Lord Nottingham in
the Duke of Norfolk's Case.23 It was that springing and shifting
uses, and executory devises must be so limited that the contingency
upon which they were limited must occur within a time which was
not so remote as to cause any inconvenience. The inconvenience
meant is undoubtedly that of the owner of the estate in possession,
or perhaps, rather, through him, that of the public, for Lord Not
tingham, when asked where he would stop in permitting these in
terests to be limited in the future, answered that he would stop when
any visible inconvenience occurred, where there was any danger of
a 'perpetuity.' Naturally enough, however, he did not use 'per
petuity' in the modern sense of a future interest which may not vest
within the time permitted by the rule.24 The definition in this sense
presupposes the existence of the Rule. But Lord Nottingham was
using the term 'perpetuity' in the sense, or in one of the senses, in
which it had previously been used. He said : "A perpetuity is the
settlement of an estate or an interest in tail, with such remainders
expectant upon it, as are in no sort in the power of the tenant in tail
in possession, to dock by any recovery or assignment, but such re
mainders must continue as perpetual clogs upon the estate."25 The
sense in which he used the term 'perpetuity' shows that he had in
mind in formulating his Rule against Perpetuities the inconvenience
in permitting to exist for too long a time an indestructible interest.
Since the rule as so developed is limited to regulating future in
terests according to their remoteness of vesting it might appropri
ately have been called the Rule against Remoteness of Vesting.28
For the same reason, however, that the devices previously referred
to were called 'perpetuities', i. e. that they procured or attempted to
"Manning's Case, 8 Co. 94b; Lampet's Case, 1o Co. 46b; Pells v. Brown,
Cro. Jac. 59o.
3 Ch. Cas. 1.
" Lew1s, Perpetu1ty, 164.
" Duke of Norfolk's Case, 3 Ch. Cas. 1.
"Gray, Rule aga1nst Perpetu1t1es, [3rd ed.], Sec. 2; Jarman, W1lls,
[7th ed.], Vol. I, p. 296, note v.
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MICHIGAN LAW REVIEW
procure a fixed devolution of property, it was called the Rule against

Perpetuities. But, since an attempt to create a 'perpetuity' may be
controlled by other rules as well as by, or instead of, the Rule against
Perpetuities, confusion with such rules has been caused by the use
of the phrase 'Rule against Perpetuities'.
Thus there should never have been any doubt but that the applica
tion of the rule was not affected by the alienability of the future in
terest. An alienable future interest is only slightly less objectionable
from the point of view of the owner of the present estate than an
inalienable one. This has always been recognized in the application
of the rules against restraints on alienation. Thus, in case a grant
is made to A and his heirs, but in case he or they should attempt to
alien the estate, then to B and his heirs, the gift to B is none the less
void as an improper restraint on alienation though B can convey his
interest, or though A and B can jointly convey an estate in possession
free from a future interest. The law has very sensibly placed less
importance upon the fact that they can alienate than upon the fact
that they probably will not. Of course, it is the latter fact that is
relied upon to make the device effective. Yet doubt has been enter
tained as to whether an alienable future interest comes within the
operation of the Rule against Perpetuities. It is believed that that
doubt would have been much less apt to arise had the rule been called
from the beginning the Rule against Remoteness of Vesting.27
Also had it been called the Rule against Remoteness of Vesting
there could never have arisen any question of its application to pres
ent estates. As it is, it has sometimes mistakenly been applied to
such interests.28
Had it been so called, it is clear that the revisors of the New York
statutes would have framed their definition very differently, for,
although it is now said that the rule against suspension of the power
of alienation now appearing in the statutes of New York and of the
states which have adopted the definition of those statutes is very
""It ought to have been called the Rule again Remoteness; in the old
books 'perpetuity' means an inalienable interest and (more especially) a dis
position by which land is settled on unborn descendents ad infinitum, so as
to be inalienable. The two ideas of 'remoteness' and 'perpetuity' are con
stantly confused at the present day." Charles Sweet: "The Monstrous Regi
ment of the Rule against Perpetuities," 18 Jur1d1cal Rev1ew, 132, n. (a).
"Gray, Rule aga1nst Perpetu1t1es, [3rd ed.], Sees. 234-246.
243
different from the common law Rule against Perpetuities,29 there is

no reason to suppose that the revisors intended to alter the funda
mentals of that rule.30
They submitted to the legislature, in the first instance, certain
sections as follows :
Sec. 14. Every future estate shall be void in its creation,
which shall suspend the absolute power of alienation for a
longer period than is prescribed in this Article. Such power
of alienation is suspended, when there are no persons in
being, by whom an absolute fee in possession can be conveyed.
Sec. 15. The absolute power of alienation shall not be sus
pended by any limitation or condition whatever, for a longer
period than during the continuance and until the termination
of a life, or lives in being at the creation of the estate, except
in the single case mentioned in the next section.
Sec. 16. A contingent remainder in fee may be created on
a prior remainder in fee to take effect in the event that the
persons to whom the first remainder is limited, shall die under
the age of twenty-one years, or upon any other contingency,
by which the estate of such persons may be determined be
fore they attain their age.
Sec. 17. In every creation of a future estate, the absolute
power of alienation shall not be suspended longer than the
lives of two persons then in being.
Sec. 18. Successive estates for life shall not be limited
unless to persons in being at the creation thereof ; and where
a remainder shall be limited on more than two successive
estates for life, all the life estates subsequent to those of the
two persons first entitled thereto, shall be void, and upon the
" Matter of Wilcox, 194 N. Y. 288, 296.
"The object of the revisers is thus stated by themselves, "It is to abolish
all technical rules and distinctions, having no relation to the essential nature
of property and the means of its beneficial enjoyment, but which, derived
from the feudal system, rest solely upon feudal reasons; to define with pre
cision the limits within which the power of alienation may be suspended by
the erection of contingent estates, and to reduce all expectant estates sub
stantially to the same class, and apply to them the same rules whether created
by deed or devise." 3 N. Y. R. S. [2nd ed.], p. 571.
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MICHIGAN LAW REVIEW

death of those persons, the remainder shall take effect, in the
same manner as if no other life estates had been created.81
In their notes to these sections the revisers said :

"The difference between the preceding sections and the
existing law, consists in the following particulars :
1. Alienation can not be protracted by mere nominees un
connected with the estate, beyond the period of two lives.
2. No more than two successive estates for life can be
created.
3. The period of twenty-one years, after a life or lives in
being, is no longer allowed as an absolute term ; but the rule
is restored to its original object, by being confined to the case
of actual infancy, which is directly provided for by rendering
the disposition defeasible, and allowing another to be substi
tuted during the period."32
From this it seems clear, as said before, that there was no inten
tion on the part of the revisers to change the fundamentals of the
Rule against Perpetuities. How clearly they comprehended those
fundamentals is not certain, however. It is likely that they more or
less clearly conceived it as a rule against remoteness of vesting, but
failed to comprehend that an alienable future interest is nearly if
not quite as obnoxious to the rule as an inalienable one. Thus
they say :
"To prevent a possible difficulty in the minds of those to
whom the subject is not familiar, we may also add, that an
estate is never inalienable, unless there is a contingent re
mainder, and the contingency has not yet occurred. Where
the remainder is vested, as where the lands are given to A for
life, remainder to B (a person then in being) in fee, there
is no suspense of the power of alienation ; for the remainder
man and the owner of the prior estate, by uniting, may always
convey the whole estate. This is the meaning of the rule of
law prohibiting perpetuities, and is the effect of the definition
in Sec. 14.'"8
"See N. Y. R. S. [2nd ed.], p. 57o.
"3N.Y. R. S. [2nd. ed.], p. 572,
"3 N. Y. R. S. [2nd ed.], p. 573-
245
These sections were adopted by the legislature substantially as

proposed with the important exception that in section 15 the words
"of not more than two" were substituted for the words "and until
the termination of a life, or" so that the section as enacted read:
"The absolute power of alienation, shall not be suspended by any
limitation or condition whatever, for a longer period than during the
continuance of not more than two lives in being at the creation of
the estate, except in the single case mentioned in the next section" ;3*
and section 17 was omitted. The change in section 15 was made at
the suggestion of the revisers and section 17 omitted on their further
suggestion that it would be rendered unnecessary by the correction
in section 15.35
The importance of these changes consists in this : Had sections 14
and 15 been proposed in the form enacted it might plausibly have
been argued that section 15 did nothing more than prescribe the
period beyond which alienation might not be suspended while the
test of what constitutes a suspension was to be found in section 14.
Further it could be argued that under section 14 the only suspension
provided against is that caused by future estates.39
"1N.Y. R. S., p. 723, Sec. 15.
"3 N. Y. R. S. [2nd ed.], p. 57o, Sees. 15 and 17.
" In 1896 the Real property Law of the State of New York was subjected
to a new revision. In this revision sections 14, 15, and 16 of Art. I. Tit. II,
Ch. I, Pt. II, of the Rev1sed Statutes were consolidated so as to read as fol
lows : "The absolute power of alienation is suspended, when there are no
persons in being by whom an absolute fee in possession can be conveyed.
Every future estate shall be void in its creation, which shall suspend the
absolute power of alienation, by any limitation or condition whatever, for a
longer period than during the continuance of not more than two lives in being
at the creation of the estate; except that a contingent remainder in fee may
be created on a prior remainder in fee, to take effect in the event that the
persons to whom the first remainder is limited, die under the age of twentyone years, or on any other contingency by which the estate of such person
may be determined before they attain full age. For the purposes of this sec
tion, a minority is deemed a part of a life, and not an absolute term equal to
the possible duration of such minority." Sec. 32 of the Real Property Law
of 1896, Sec. 32, Ch. XLVI, of General Laws. In the report to the legisla
ture of the Commissioners on Statutory Revision who prepared this revision
it is said with reference to this section that it is sections 14, 15, and 16 "un
changed in substance, except that the last sentence, which is declaratory of
existing law, is new." Fowler's Real Property Law of the State of New
York, [3rd ed.], p. 12o9. Despite the statement that this section leaves the
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As will appear later this was actually argued and, had it not been
for proof of the form in which the statutes were originally proposed,
the argument might have been successful.
Let us see what has been the course of decision. For the sake of
convenience, the discussion will cover, first, present interests ; sec
ond, future interests.
To a proper understanding of the application of the legislation
previously quoted to present interests, it is necessary to refer briefly
to the regulations provided in the New York Revised Statutes on
the subject of trusts.
The revisers in the rules submitted regulating trusts were inspired
by the following considerations : They seemed to feel that much of
the complexity of the law of real property and the uncertainty of
titles was caused by the separation of the legal and equitable
estates.37 They proposed a system which, in their words, "will sweep
away an immense mass of useless refinements and distinctions ; will
relieve the law of real property to a great extent, from its abstruseness and uncertainty, and render it, as a system, intelligible and
consistent; that the security of creditors and purchasers will be in
creased; the investigation of titles much facilitated; the means of
alienation be rendered far more simple and less expensive, and final
ly, that numerous sources of vexatious litigation will be perpetually
closed."38
They proposed to accomplish these results by abolishing passive '
uses and trusts by more thoroughgoing legislation than the original
former sections unchanged in substance, had the original legislation been pro
posed and enacted in this form, it could hardly have been interpreted as
applying to any interests other than future estates, an interpretation, of course,
much narrower than was given to the sections as they were actually enacted.
See Chapl1n's Suspens1on of the Power of Al1enat1on [2nd ed.], pp. 134,
135. Fowler's Real Property Law of the State of New York, [3rd ed ],
pp. 262, 1 167. It, however, seems to be accepted by the courts as the commis
sioners evidently intended it to be. Herzog v. Title Guarantee and Trust Co.,
177 N. Y. 86, 69 N. E. 283; Farmers' Loan and Trust Co. v. Kip, 12o App. Div.
347, 1o4 N. Y. S. 1o92; Bindrim v. Ulrich, 64 App. Div. 444, 72 N. Y. S. 239;
Union Trust Co. v. Metcalf, 37 Misc. 672, 76 N. Y. S. 375; Allen v. Litchard,
93 Mis. 197, 157 N. Y. S. 19; In re Ward's Estate, 175 N. Y .S. 654: In re
Abbey, 168 N. Y. S. 1o47, 181 App. Div. 395, affirming decree in 164 N. Y. S.
934, 98 Misc. 5o6.
" Revisers' Reports and Notes, 3 N. Y. R. S., [2nd ed.], pp. 579-584.
"Ibid, p. 584.
247
Statute of Uses, and by allowing active trusts only within very' nar
row limits. The active trusts which they proposed to permit were
the following:
" ( 1 ) To sell lands for the benefits of creditors.
(2) To sell, mortgage or lease lands, for the benefit of
legatees, or for the purpose of satisfying any charge thereon.
(3) To receive the rents and profits of land, and apply
them to the education and support, or support only of any
person during the life of such person or for any shorter terms,
subject to the rules prescribed in the first Article of the Title.
(4) To receive the rents and profits of lands, and to
accumulate the same, for the purposes and within the limits
prescribed in the first Article of this Title."8'
Only the third class is of significance for the purposes of this dis
cussion.40 The recommendation as to this class was adopted as pro
posed with the exception that the words "or support only" were
changed by the legislature to "or either."41
Upon later recommendation by the revisers, the statute was
amended in 183o by striking out the words "education and support,
or either", and substituting the word "use".42 So that this provision
then stood, "To receive the rents and profits of lands, and apply them
to the use of any person, during the life of such person, or for any
shorter term, subject to the rules prescribed in the first Article of
this Title."48
It was undoubtedly the expectation of the revisers that the au
thority granted in this section would be exercised in general in the
creation of trusts for the benefit of incompetents.44 With this
thought in mind they recommended, and the legislature enacted, the
two following sections :
" Ibid, p. 579. note to Sec. 56.
"The first two being trusts for alienation, a trust created under them
could be deemed in no view of the statutes against suspension of alienation,
to violate such statutes. Accumulations are regulated by provisions of the
statutes other than the general statutes against the suspension of the power
of alienation. I N. Y. R. S. 726, Sees. 37 and 38.
"Revisers' Reports and notes, 3 N. Y. R. S., [2nd ed.], p. 578.
"Ibid.
"I N. Y. R. S, [2nd ed.], p. 723, Sec. 55 (3).
"Revisers' Reports and Notes, 3 N. Y. R. S-, [2nd ed.], p. 585.
248
MICHIGAN LAW REVIEW

"Sec. 63. No person beneficially interested in a trust for '
the receipt of the rents and profits of lands can assign or in
any manner dispose of such interest; but the rights and in
terest of every person for whose benefit a trust for the pay
ment of a sum in gross is created, are assignable.
Sec. 65. Where the trust shall be expressed in the instru
ment creating the estate, every sale, conveyance or other act
of the trustees, in contravention- of the trust, shall be abso
lutely void.""
The interest of a beneficiary of a trust for the receipt of the rents

and profits of land is, under the first of these sections, made inalien
able, even though not so intended by the creator of the trust. In
fact, the creator of a trust under this section can not give to the
cestui the power of alienation.48 He may give to the trustee the
power to convey. Except as he does give such power, however,
property held upon a trust for such purposes is completely in
alienable.
Though, as stated, it was expected by the revisers that the trust
ordinarily to be created under this section was a trust for incom
petents, it was held that trusts for all persons competent or incom
petent were permissible under it.47 We thus have a legislative com
mand that all trusts for the receipt of the rents and profits of land
shall be what would now be called 'spendthrift' trusts, such command
long antedating the development of the modern spendthrift trust
doctrines. This legislation received a sympathetic consideration by
the courts. To such an extent was this true that it was held that the
rules there laid down should be applied by analogy to trusts for the
receipt of the income of personal property.48
The question of the application of the statutes against the suspen
sion of the power of alienation to trusts of this character was the first
"Fowler's Real Property Law of the State of New York, [3rd ed.],
p. 451. I N. Y. R. S., p. 73o, Sees. 63 and 65.
* Coster v. Lorillard, 14 Wend. 265, 333; Crooke v. Kings County, 97
N. Y. 421; Chapl1n, Express Trusts and Powers, 379; 3o Cyc 15o3, n. 1.
Compare Fowler, Real Property Law of the State of New York, [3rd
ed.], 5oo.
"Fowler's Real Property Law of New York, [3rd ed.], 45o-451;
Reeves, Real Property, 497, 498; Liggett v. Perkins, 2 N. Y. 297, 3o8, 321, 325.
"Fowler's Personal Property Law of New York, [2nd ed.], p. 52.

question on the sections relating to real property in the New York
Revised Statutes that came before the courts. This was in the well
known case of Coster v. Lorillard." In this case a testator devised
certain real estate to trustees, consisting of a brother and twelve
nephews and nieces, and to the survivor or survivors of them, in
trust to receive the rents and profits and apply them to the use of the
twelve nephews and nieces, in equal shares, during their joint lives,
and to the survivor or survivors of them so long as any of them
should live, and to convey the remainder of the estate, after the
death of all of such nephews and nieces, in fee to such of their
descendents as should be then in existence. The will came before
Vice-Chancellor McCown of the first circuit for construction. He
held that, as to the trusts for the lives of the twelve nephews and
nieces, it was good even though inalienable, for the reason that the
statutes against suspension of the power of alienation applied only
to suspension caused by future estates.50 The reasoning by which
this result was reached was that previously suggested.91 He de
clined to make any decree as to the ultimate limitation over, because
the proper parties were not before the court, but expressed the
opinion that they were void as being too remote.
On appeal to the court of chancery, all three of the revisers, But
ler, Spencer, and Duer, appeared, each representing different inter
ests. All contended that the devise for the lives of the twelve
nephews and nieces was not rendered invalid by the statutes against
suspension of the power of alienation ; Butler,02 because such statutes
affected only future estates;53 Spencer, because, even if applicable
to present interests, the restrictions on alienation in such cases as
this, if any there were, were imposed by law, "and if not legal, they
do not exist ; and if legal, they must prevail" ; and because the "re
striction is an incapacity in respect to the character of the party
which is not engrafted on the estate."" Duer, because the inca
pacity to assign the beneficial interest in a trust for the receipt of the
rents and profits and lands is personal and is not engrafted on the
estate, the true construction of the statute being that the beneficial
" 5 Paige's Ch. 172, 14 Wend. 265.
"S Paige's Ch. 172, 187-196.
51 Supra, p. 249.
" With whom was associated Peter A. Jay.
"5 Paige's Ch. 172, 2o3-2o7.
**S Paige's Ch. 172, 2o8-2o9.
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MICHIGAN LAW REVIEW
interest is not per se assignable, but may be made assignable by the

testator, and that it had here been made assignable.95
The Chancellor,59 however, held that the statutes applied to all
inalienable interests, whether present or future, and from whatever
cause the inalienability arose. He held, however, that though the
trust for the benefit of the nephews and nieces was subject to the
statutes, it was not void, as the trust, properly construed, created a
tenancy in common, and as to the individual interest of each, there
was not a suspension for a greater length of time than the statutes
permitted.57 To the argument of the Vice-Chancellor that they pro
hibited suspension by future estates only, he answered by showing
the consolidation of the proposed sections 15 and 17, drawing there
from the conclusion that section 15 should be construed as including
the interests intended to be covered by the two proposed sections,
and in determining what interests were covered, he held as stated,
that all inalienable interests were.
On appeal to the Court of Errors similar arguments were repeated
but the court held that the estates created were joint estates, were
inalienable for more than the period permitted by the statutes, and
were void for that reason.58
Since the decision in this case it has been consistently held that
trusts for the receipt of the rents and profits of land are subject to
the statutory rules against the suspension of the power of aliena
tion.58
Let us see what this means. The legislature has established the
rule that trusts for the receipt of the rents and profits of land shall
be inalienable. Because of the inalienability which has thus been
imposed upon the trust, it is declared to be void. Because of a
quality annexed to his gift which he probably did not contemplate,
perhaps did not even desire, the wishes of the creator of the trust
are frustrated, his cestuis disappointed, and his property distributed
" 5 Paige's Ch. 172, 2o9-213.
" Walworth.
"S Paige's Ch. 172, 213, 218.
" 14 Wend. 265.
" Douglas v. Cruger, 8o N. Y. 15 ; Herzog v. Title Guarantee and Trust
Company, 177 N. Y. 86; Farmers' Loan and Trust Co. v. Kip, 192 N. Y. 266;
In re Walkerly, 1o8 Cal. 627, 65o, 41 Pac. 772, 776; Casgrain v. Hammond, 134
Mich. 419, 96 N. W. 51o; Danforth v. Oshkosh, 119 Wis. 262, 97 N. W. 258;
Rong v. Haller, 1o9 Minn. 191, 123 N. W. 471 ; Penfield v. Tower, I N. D. 216.

among those whom he has indicated no desire to benefit. The law
has been rather over sensitive to thwarting the intention of the
creators of trusts in the interests of the public, but if the legislature
ever consciously contemplated such a result as that here indicated,
it must be adjudged guilty of a wanton disregard of the intention of
the creators of trusts and of the rights of their intended cestuis.
The writer does not believe that the revisers or the legislature ever
contemplated any such result. He believes that the revisers when
acting as counsel were not inconsistent with themselves as revisers
in arguing that the statutes did not require any such result. Had
they foreseen the judicial construction to be adopted, it seems in
conceivable that they would have proposed any such legislation.
As to the application of the statutory rule to future interests. It
has been said repeatedly that the requirements of the statutory rule
are satisfied if all having interests may convey by joint or several
action in fee simple.80 In other words, if each interest in the prop
erty in question is by itself alienable, there is no violation of the
statutory rule.
Let us see how this works out in a concrete case. Take the case
previously suggested. A grant is made of Blackacre to A and his
heirs, with a proviso that if he or his heirs should ever alienate or
attempt to alienate the same, it should go to B and his heirs. The
conditional limitation to B would be void under the common law
Rule against Perpetuities because it might vest at a time later than
permitted by the rule. It would also be void in the jurisdictions
where the statutory rule against suspension of the power of aliena
tion prevails because in violation of the rules against restraints on
alienation as an improper restraint on the alienability of A's in
terest.91 But since A and B could by joint action at any time convey
a fee simple, in possession, there would be no violation of the statutes
against suspension of the power of alienation.
The object of the statutory rule is said to be to keep real property
"Graham v. Graham, 49 Misc. (N. Y.) 4, 97 N. Y. Suppl. 779; Becker
v. Chester, 115 Wis. 9o, 1o8, 91 N. W. 87; Buck v. Walker, 115 Minn. 239,
132 N. W. 2o5; Fitzgerald v. City of Big Rapids, 123 Mich. 281, 283, 82
N. W. 56.
"Chapl1n, Suspens1on of the Power of Al1enat1on, [2nd. ed.], Sees.
129, 13o; Greene v. Greene, 125 N. Y. 5o6, 512; Mandlebaum v. McDowell, 29
Mich. 78, 18 Am. Rep. 61 ; Van Osdell v. Champion, 89 Wis. 661 ; Zillmer v.
Landguth, 94 Wis. 6o7.
MICHIGAN LAW REVIEW

in the channels of commerce.82 So vigorous has been the legislative
mandate that this condition must prevail that we have seen that it
is effective to render void because of inalienability an interest which
had been rendered inalienable by another legislative mandate. Now
we find it so innocuous that it is not effective to render abortive an
attempt to take property out of the channels of commerce forever,
leaving the frustration of such attempts to be effected through the
operation of rules of policy worked out by the courts in their at
tempts to procure free alienability of property.
The difficulty here seems to rest largely upon a too literal reading
of the statutory definition. It is true that Blackacre can be alienated
unconditionally and in fee, at any time by its present owners. It is
equally true that every probability is against its being alienated. B
will almost certainly retain the club he holds over A's head in the
form of his conditional limitation. It may be because he conceives
it his duty to stand guard ; if not, the circumstances are such that he
will almost certainly demand more for a surrender of his rights than
A will be willing to pay. This of course was understood by the
grantor in creating the limitation to B, and by the judges when they
declared such a limitation void as an improper restraint on alienation.
In dealing with the statutory test of what constitutes an absolute
suspension of alienation, or in the words of the statute, a suspension
of the absolute power of alienation, the courts have proceeded as
though they were dealing with a statement of abstract truth rather
than with a rule of policy founded upon economic considerations.
They have been satisfied with a purely theoretical possibility of
alienation, and have not concerned themselves with the policy the
statute was intended to subserve. Had that policy been clearly per
ceived, it is believed that it would have been seen that it requires
free alienability by the owner or owners of the present estate and
M"In respect to Rule I, concerning suspension of the absolute power of
alienation, the main purpose is to confine within specified limits the period
during which property may be so tied up that it can not come upon the market,
or cannot be freed from its special character as an 'estate' or 'fund' and re
stored to the status of ordinary property owned outright by individuals who
can sell or spend it." Chapl1n, Suspens1on of the Power of Al1enat1on,
[2nd ed.], Sec. 21; "The primary purpose of the statute limiting the right to
alienate realty is not to prevent perpetuities, but to prevent unduly removing
property from the field of business transactions." Becker v. Chester, 115
Wis. 9o. (Quotation from the syllabus by Marshall, J.)

that the absolute power of alienation is suspended, when the owner
or owners of the present estate can not convey an absolute fee in
possession.
The courts are perhaps not to be criticised too much for their in
terpretation of the statutes, for it was an interpretation to which
the definition of perpetuity upon which the statutes were framed
were subject. Even under the common law rule, it has been held at
times that the rule had no application to alienable future interests,
regardless of their remoteness.93
This is due, as has been pointed out, to the fact that such defini
tions have been carried over from a time when 'perpetuity' was used
in the sense of an unbarrable entail. It was defined in this way by
Lord Nottingham in the Duke of Norfolk's Case,9* as previously
quoted: "A perpetuity is a settlement of an estate or interest in
tail, with such remainders expectant upon it, as are in no sort in
the power of the tenant in tail in possession to dock by any recovery
or assignment." It was defined in the same sense in the slightly
earlier case of Washbourne v. Downes, where, in determining that
a tenant of an equitable estate tail could bar the entail, it was said,
"A perpetuity is where, if all that have interest join, and yet can
not bar or pass the estate. But if by the concurrence of all having
the estate tail may be barred, it is no perpetuity." Of course in re
ferring here to "all that have interest" only those interested in the
present estate were intended to be referred to. Yet it has been
understood in the wider sense of including those having future as
well as those having present interests. Even Saunders, writing be
fore the adoption of the New York Revision, so understood it, and
therefore insisted that it was wrong." But unfortunately others
who understood it in the same sense failed to see that, so understood,
it was wrong. Among these have been the interpreters of the
statutes against suspension of the power of alienation. In general,
** Gray, Rule aga1nst Perpetu1t1es, Ch. VII.
M3 Ch. Cas. I.
" 1 Ch. Cas. 213.
" He says : "It is said in the case of Washbourne v. Downes, 1 Cha. Ca.
23, 213, that, 'A perpetuity is where, if all that have interest join, yet they can
not bar or pass the estate;' and in the case of Scattergood v. Edge, I Salk.
229, that 'every executory devise is a perpetuity so far as it goes; i. e. an
estate inalienable though all mankind join in the conveyance.' But these
definitions of a perpetuity are not accurate. If an estate be limited to the
MICHIGAN LAW REVIEW

it has been assumed by those interpreting those statutes that they
express the common law as it stood at the time they were first adopt
ed, and that the common law was satisfied if all having interests
could convey. Thus in Becker v. Chester, Marshall, J., said, "Note
the complete harmony between the language of Washbourne v.
Downes and the statute: "A perpetuity is where, if all that have
interest join, and yet can not bar or pass the estate. But if by the
concurrence of all having the estate tail may be barred, it is no per
petuity." "Such power of alienation is suspended when there are no
persons in being by whom an absolute fee in possession can be
conveyed."97
To the general view that the rule laid down by the New York
Revised Statutes is against suspension of alienation only, there was
among writers and courts little dissent prior to the year 1891. In
that year appeared a book by Mr. Stewart, Chapl1n on Suspens1on
of the Power of Al1enat1on.08 In this work the view was ad
vanced that the Revised Statutes laid down two rules, one against
the suspension of the absolute power of alienation, the other against
remoteness of vesting. The fact that Mr. Chaplin's views have
gained recognition in the Court of Appeals of New York gives them
great significance. To make clear his position and the writer's com
ments upon it, it is necessary to quote the relevant sections of the
New York Revised Statutes :09
"Sec. 7. Estates, as respects the time of their enjoyment, are
divided into estates in possession, and estates in expectancy.
Sec. 8. An estate in possession, is where the owner has an immeuse of A and his heirs, but if B should die without heirs of his body, then to
the use of C and his heirs, the limitation to C and his heirs would be void,
as tending to a perpetuity. Yet C might, no doubt, release or pass his future
estate; and with the concurrence of the necessary parties, the fee-simple might
be disposed of, before there was a failure of issue of B. A perpetuity may,
with greater propriety, be defined to be a future limitation, restraining the
owner of the estate from aliening the fee-simple of the property, discharged
of such future use or estate, before the event is determined, or the period
arrived, when such future use or estate is to arise. If that event or period
be within the bounds prescribed by law, it is not a perpetuity." Sanders,
Essay on Uses and Trusts, [4th ed.], vol. I, p. 196.
" 115 Wis. 9o, 1o9.
"A second edition appeared in 191 1.
" The sections quoted are from Part II, Ch. I, Art. I.

diate right to the possession of the land. An estate in expectancy, is
where the right to possession is postponed to a future period.
Sec. 9. Estates in expectancy, are divided into,
1. Estates commencing at a future day, denominated future
estates; and,
2. Reversions.
Sec. 1o. A future estate, is an estate limited to commence in pos
session at a future day, either without the intervention of a precedent
estate, or on the determination, by lapse of time or otherwise, of a
precedent estate, created at the same time.
Sec. I1. Where a future estate is dependent on a precedent estate,
it may be termed a remainder, and may be created and transferred
by that name.
Sec. 12. A reversion is the residue of an estate left in the grantor
or his heirs, or in the heirs of a testator, commencing in possession
on the determination of a particular estate granted or devised.
Sec. 13. Future estates are either vested or contingent. They are
vested, when there is a person in being, who would have an imme
diate right to the possession of the lands, upon the ceasing of the
intermediate or precedent estate. They are contingent, whilst the
person to whom, or the event upon which they are limited to take
effect, remains uncertain.
Sec. 14. Every future estate shall be void in its creation, which
shall suspend the absolute power of alienation for a longer period
than is prescribed in this Article. Such power of alienation is sus
pended, when there are no persons in being, by whom an absolute
fee in possession can be conveyed.
Sec. 15. The absolute power of alienation, shall not be suspended
by any limitation or condition whatever, for a longer period than
during the continuance of not more than two lives in being at the
creation of the estate, except in the single case mentioned in the next
section.
Sec. 16. A contingent remainder in fee, may be created on a prior
remainder in fee, to take effect in the event that the persons to whom
the first remainder is limited, shall die under the age of twenty-one
years, or upon any other contingency, by which the estate of such
persons may be determined before they attain their full age.
Sec. 17. Successive estates for life shall not be limited, unless to
persons in being at the creation thereof ; and where a remainder shall
be limited on more than two successive estates for life, all the life
estates subsequent to those of the two persons first entitled thereto,
shall be void, and upon the death of those persons, the remainder
shall take effect, in the same manner as if no other life estates had
been created.
Sec. 18. No remainder shall be created upon an estate for the
life of any other person or persons than the grantee or devisee of
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such estate, unless such remainder be in fee ; nor shall a remainder
be created upon such an estate in a term for years, unless it be for
the whole residue of such term.
Sec. 19. When a remainder shall be created upon any such life
estate, and more than two persons shall be named, as the persons
during whose lives the life estate shall continue, the remainder shall
take effect upon the death of the two persons first named, in the
same manner as if no other lives had been introduced.
Sec. 2o. A contingent remainder shall not be created on a term
of years, unless the nature of the contingency on which it is limited,
be such that the remainder must vest in interest, during the con
tinuance of not more than two lives in being at the creation of such
remainder, or upon the termination thereof.
Sec. 31. No estate for life, shall be limited as a remainder on a
term of years, except to a person in being, at the creation of such
estate.
Sec. 22. Where a remainder shall be limited to take effect on the
death of any person without heirs, or heirs of his body, or without
issue, the words "heirs" or "issue," shall be construed to mean heirs
or issue, living at the death of the person named as ancestor.
Sec. 23. All the provisions contained in this Article, relative to
future estates, shall be construed to apply to limitations of chattels
real as well as of freehold estates, so that the absolute ownership of
a term of years, shall not be suspended for a longer period than the
absolute power of alienation can be suspended, in respect to a fee.
Sec. 24. Subject to the rules established in the preceding sections
of this Article, a freehold estate as well as a chattel real, may be
created, to commence at a future day ; an estate for life may be
created, in a term of years, and a remainder limited thereon; a re
mainder of a freehold or chattel real, either contingent or vested,
may be created expectant on the determination of a term of years;
and a fee may be limited on a fee, upon a contingency, which, if it
should occur, must happen within the period prescribed in this
Article.
Sec. 25. Two or more future estates, may also be created, to take
effect in the alternative, so that if the first in order shall fail to vest,
the next in succession shall be substituted for it, and take effect
accordingly.
Sec. 26. No future estate, otherwise valid, shall be void on the
ground of the probability or improbability of the contingency on
which it is limited to take effect.
Sec. 27. A remainder may be limited on a contingency, which, in
case it should happen, will operate to abridge or determine the pre
cedent estate; and every such remainder shall be construed a condi
tional limitation, and shall have the same effect as such a limitation
would have by law."
357
Mr. Chaplin accepted the usual interpretation of sections 14 and

15, i. e., that they prohibit only a suspension of the absolute power
of alienation and contain no prohibition against remoteness of vest
ing.70 But he contended that as to 'remainders' the sections imme
diately succeeding those named together with section 16 established a
second rule, one against remoteness of vesting beyond the statutory
period.
For the purpose of examining the application of the rule against
remoteness of vesting, called by him Rule II, he divided 'remainders'
into three classes, according as they were limited upon estates for
years, for life, or in fee.71 He found the source of his rule as ap
plied to 'remainders' limited upon estates for years in sections 24
and 2o ;72 as applied to 'remainders' limited upon estates for lives in
sections 17, 18, and 19; and as applied to 'remainders' limited on
a fee, in sections 24 and 16.7*
To the mind of the writer there is nothing in the form of the Re
vised Statutes, nor in the notes of the revisers, to justify this deriva
tion of a rule against remoteness of vesting. Referring to the sec
tions quoted above, it seems clear that they naturally arrange them
selves into three groups. Sections 7 to 13 inclusive are definitive in
nature; sections 14 to 23 inclusive are restrictive; while sections 24
to 27 inclusive are permissive. Sections 14, 15, and 16 were in
tended to lay down a narrower rule against perpetuities than the
common law rule. Sections 14 and 15 restricted the common law
limit of 'lives in being' to 'two lives in being.' Section 16 though
permissive in form was intended also in a restrictive sense as it was
intended to limit the period of twenty years to the case of an actual
infancy. Sections 18 to 21 inclusive were intended to subject the
creation of specified future estates, some of which were not within
the prohibition of the common law rule, nor of the statutory rule,73
to restrictions not existing at common law. These were in further** Suspens1on of the Power of Al1enat1on, Sees. 62-65.
nIbid, Sec. 318.
Ibid, Sec. 319nIbid, Sees. 32o-322.
"Ibid, Sees. 338-34o. Criticism of the views presented by Mr. Chaplin
may be found in an article by Mr. George F. Canfield, "The New York Re
vised Statutes and the Rule against Perpetuities," 1 Col. L. Rev. 224, 228.
" See particularly sections 17, 18, 19, and 21, where, under certain condi
tions, the creation of vested future estates is prohibited.
MICHIGAN LAW REVIEW

ance of the general principle that the power of imposing restrictions
on the alienability of the fee by the creation of future estates should
be curtailed more than it had been at common law. Section 23 sub
jected chattels real to the provisions of the article in which the sec
tions quoted are found, i. e., the article on the Creation and Division
of Estates.
Having imposed by these sections restrictions on the creation of
future estates in favor of public welfare, the revisers then sought to
abolish other restrictions previously existing not required by any
rule of public policy, but resulting from technical rules of the com
mon law, or at least to make clear that they no longer existed.7*
Naturally they intended that the privileges thus granted or secured
should be subject to the restrictions previously imposed and they
sometimes specifically so provided.77 Thus in section 24 after pro
viding that a fee might be limited on a fee, on a contingency, they
added "which, if it should occur, must happen within the period
prescribed in this Article."
It has been generally agreed or assumed that the qualification
added nothing in legal effect ; that it only made express what would
otherwise have been implied. Still it does provide that the contin
gency upon which the second fee may be limited must occur within
the statutory period. This is in form a prohibition against remote
ness of vesting. How can this be reconciled with the view that the
statutory rule applies only to inalienable rather than to contingent
" Thus the following technical rules of the common law were expresslyabrogated by section 24; a freehold could not be limited to commence in the
future. T1ffany, Real Property, Sec. 119; Buckler v. Hardy, Cro. Eliz. 585.
An estate for life could not be created in a term of years and a remainder
limited thereon. Gray, Perpetu1t1es, Sees. 71a, 8o7, 8o8. A contingent re
mainder could not be created expectant upon a term of years. T1ffany, Real
Property, Sec. 123; Chall1s, Real Property, 93. A fee could not be limited
in derogation of a previously granted fee. T1ffany, Real Property, Sec. 119.
" Section 17 provides that when a contingent remainder is limited on a
term of years it must vest in interest within two lives. To the mind of the
writer such a case would have been covered by sections 14 and 15, had those
sections been construed as intended by the revisers, and such section was,
therefore, from their point of view, superfluous. But contingent remainders
could not be created on terms of years, at common law. The Revisers pro
posed to allow them to be so created, sec. 24. It was, therefore, natural that
they should specifically subject them to the rules applicable to contingent re
mainders generally.
359
interests? Those who adopt the view that the statutes provide a
rule against suspension of alienation only, such rule being found in
sections 14 to 16, either pass this provision over without comment
or assume that it refers merely to statutory rule as so understood."
To the writer, who believes that sections 14 to 16 were intended to
lay down a rule against remoteness of vesting, it seems clear that
the provision merely refers to the rule as intended to be established
by those sections. Mr. Chaplin however argued, as stated above,
that this provision was intended to establish a rule against remote
ness of vesting of 'remainders' limited upon a fee, and with the other
sections, referred to above, relied upon by him established a general
rule against remoteness of 'remainders.'
Mr. Chaplin's rule against remoteness extended only to 're
mainders'. This means remainders in the statutory sense, not in
the common law sense. Now remainders are nowhere denned in
the Revised Statutes. This in itself is suggestive of the view that
the revisers did not intend anything to turn on the question whether
a certain future estate was or was not a remainder. However, they
used the term 'remainder' frequently in the statutes. And in sec
tion 11 they provided: "Where a future estate is dependent on a
precedent estate, it may be termed a remainder, and may be created
and transferred by that name." It is apparent that, as so used, the
term "remainder" comprehends what were previously known as
vested remainders, contingent remainders, shifting uses, and also
executory devises where, at least, the latter were limited in defeas
ance of another estate created by the same will. This leaves, of the
future estates as denned by the statutes, only what were previously
called springing uses and possibly such executory devises as are not
limited in defeasance of another estate limited by the same instru
ment. If 'remainder' as used in Mr. Chaplin's rule is to have the
same meaning as that here suggested, we have the absurdity of a
rule against the remoteness of vesting of shifting uses without hav
ing a similar rule with respect to springing uses. This, apparently,
"Fowler, Real Property, 282; Reeves, Real Property, 622, n. a. See
George F. Canfield, "The New York Revised Statutes," 1 Col. L. J. 224, 3oo,
where the writer says that it would seem that the statute should be inter
preted as though it read, "A fee may be limited upon a fee provided that it
does not occasion a suspension of the power of alienation beyond the period
prescribed in this article." See also instructive comment by Professor Ed
ward H. Warren, 3o Cyc. 1518, n. 81.
MICHIGAN LAW REVIEW

led to the suggestion by Mr. Chaplin in the second edition of his
book that perhaps eventually the courts would apply this rule to all
future estates, either by analogy to the rule with respect to re
mainders or by so construing the statutes as to read 'remainders' as
synonymous with 'future estates'.
In the Matter of Wilcox*0 the Court of Appeals of New York
accepted Mr. Chaplin's view. In that case personal property was
limited over upon an event that might occur at a more remote time
than two lives in being. The interest so limited was at all times
alienable. The New York statutes provide : "The absolute owner
ship of personal property shall not be suspended by any limitation
or condition whatever, for a longer period than during the con
tinuance and until the termination of not more than two lives in
being at the date of the instrument containing such limitation or
condition; or if such instrument be a will, for not more than two
lives in being at the death of the testator.81
"In all other respects, limitations of future or contingent interests
in personal property shall be subject to the rules prescribed in the
first Chapter of this Act, in relation to future estates in land."82
The court held that, in determining whether or not an alienable
executory limitation in personal property suspended the absolute
ownership of personal property, it was necessary, in view of the
above statute, to determine whether or not the statutes contained a
rule against remoteness of vesting, as, "if it were established that
the sole statutory restriction on the power to create estates in realty
was that the creation of such estates shall not suspend the absolute
powers of alienation beyond the prescribed period, there would be
force in the position that the absolute ownership of personal property
was not suspended when there were persons in being, no matter in
what manner or what the nature of their interests, who acting con
jointly could transfer an indefeasible title."83
It determined that there was to be found in the statutes relating
to real estate a rule against remoteness of vesting. The argument
of the court is as follows : The common law rule was a rule against
"Suspens1on of Al1enat1on, [2nd ed.], Sees. 3o4-3o5.
* 1o4 N. Y. 288.
"Rev. St., Part II, Ch. IV, Title IV, sec. 1.
"Rev. St., Pt. II, Ch. IV, Tit. IV, sec. 2.
" 194 N. Y. 288, 3oo.
261
remoteness. The statutory rule found in sections 14 and 15 is a

rule against suspension only. The revisers were men of great
erudition, and it must be supposed that they understood the common
law rule, and, therefore, knew that sections 14 and 15 established
a different rule. Section 17 prohibiting the creation of successive
life estates to more than two persons in being showed that, at least
in this respect, limitations on the power to create future estates
other than the provision that they should not suspend the power of
alienation were intended.
Sections 18 to 24 inclusive with their elaborate and minute re
strictions on the creation of remainders were impossible to under
stand if the revisers intended to establish the sfngle rule that the
power of alienation should not be suspended for more than two
lives in being. Particularly is this true of Section 24. The court
says: "Section 24, already quoted, concludes, 'and a fee may be
limited on a fee, upon a contingency, which, if it should occur, must
happen within the period prescribed in this Article,' i. e. within two
lives in being. This statutory authority for limiting a fee upon a
fee is necessarily exclusive; otherwise, why should the statute de
clare that the contingency must occur within the specified period?
It has no necessary connection with the provision restricting the
suspension of the power of alienation. It is under this provision
that the present case would fall if it were real estate."8*
The case of Matter of Wilcox is obviously revolutionary.85 The
rule against suspension of alienation had varied from the common
law Rule against Perpetuities in two significant respects. It forbade
the creation of inalienable present estates, where such inalienability
might exceed two lives in being, while it permitted the creation of
alienable contingent future estates at however remote a period they
might vest. Matter of Wilcox now establishes a rule against the
remoteness of vesting of 'remainders' even though alienable, which,
because of the limit to two lives in being, is more stringent than the
common law rule.
The rule laid down in Matter of Wilcox has been followed re
cently by the New York Court of Appeals and applied to a future
estate which can not be called a 'remainder' except as 'remainder'
** 194 N. Y. 288, 299.
"See case commented on in Fowler's Real Property Law, [3rd ed.],
276 289; 22 Harv. L. Rev. 543; 9 Col. L. Rev. 368.
262
MICHIGAN LAW REVIEW
may be construed to include all future estates. The case referred

to is Walker v. Marcellns & Otisco Lake Railway Co." In this
case the grantor conveyed, in effect, as construed, an estate in fee
to take effect whenever she, the grantor, should cease to occupy a
certain lime kiln upon the premises, and to use the same for the
purpose of burning lime. She had ceased to use the lime kiln, and
the assignee of the grantee being in possession sought to hold pos
session by virtue of the limitation in the deed.87 The court repeated
the substance of the argument of Matter of Wilcox as follows:
"The revisers, however, had something more in mind at
least with regard to certain future estates than merely the
prohibition of restrictions on alienation. As an illustration
a remainder might not be limited on more than two successive
life estates. They well knew that every executory device or
springing use was then required to be so limited that the con
tingency upon which they depended must happen within a
time measured by lives. They were aware of the definition
of a springing use ; that it depended on no prior estate. Yet
they intended to cover the entire ground as to the creation
and division of estates. Their design was to simplify, not to
complicate, the transfer of real estateto restrict, not to
extend, the limitations which a grantor might impose upon it.
With all this in mind they provided that a freehold estate
might be created to commence at a future day and that a
fee may be limited on a fee on a contingency which must
occur, if ever, within a time measured by lives."88
It then proceeded to deny the validity of any distinction between
"remainders" and other future estates respecting the question of
remoteness of vesting in the following language :
"Technically a springing use, or what is now its equiva
lent, does not come within this definition. It does come with
in its object and purpose. Had the determinable fee been
" 226 N. Y. 347.
" The facts were that the original grantee had entered upon the land be
fore the assignment and destroyed the kiln. The court below held that the
grantee or its assigns could not take advantage of a discontinuance of use
caused by the grantee itself. 179 App. Div. (N. Y.) 313.
-226 N. Y. 349.
263
granted, not excepted, no question would arise. It is incon

ceivable that the revisers intended to make a distinction be
tween two classes of cases, the effect of which is substantially
identical. It must be that in speaking of a fee limited on a
fee they had not in mind the technical distinction of the early
conveyancers. They were considering future estates and
their desire was that when such estates depended upon a con
tingency they should vest in possession within a reasonable
period. Their language should, therefore, be so construed as
to carry out their intention. When they speak of a fee
limited on a fee in this connection they refer to the grant of
any future fee which may arise on a contingency which limits
a prior fee however such result is brought about.""
That the views taken by the New York court in these cases will
be followed by those states which have adopted the New York Real
Property Code seems hardly likely, yet seems no more unlikely than
that New York would do so seemed a few years ago. Some of the
statutory provisions especially relied upon by the New York court
are, however, not found in all of such states, so there is to this ex
tent less reason to be found by them for adopting the New York
rule against remoteness.80
Under the law as it now stands in New York, assuming that the
cases referred to represent the present state of the law, the effect is
to render the statute prohibiting a suspension of the power of aliena
tion chiefly effective in invalidating trusts, which in turn have been
" 226 N. Y. 35o.
" This is particularly true of that part of section 24 of the New York
Revised Statutes especially relied upon in the Matter of Wilcox, i. e., the
provision that, "a fee may be limited on a fee, on a contingency, which, if it
should occur must happen within the period prescribed in this article." This
provision appears in the section corresponding to section 24 of the New York
Revised Statutes in the states of California (C1v1l Code, Sec. 773), Montana
(1 Rev1sed Codes, Sec. 4493), North Dakota, (1 Comp1led Laws, Sec. 5316),
and South Dakota (C1v1l Code, Sec. 253). It has been omitted from the
corresponding sections in the states of Arizona (C1v1l Code, Sec. 4689), In
diana (2 Burn's Ann. Sts., Sec. 3995), Michigan (Comp1led Laws, Sec. 11,
542), Minnesota, (General Statutes, Sec. 6674), and Wisconsin (W1scons1n
Statutes, Sec. 2o48), while Oklahoma (General Statutes, Sec. 5437), omits
that part requiring that. the contingency, "if it should occur, must happen
within the period prescribed in this Article."
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MICHIGAN LAW REVIEW
made inalienable by statute. It is to be hoped that if in other juris

dictions we are to have a rule against remoteness of vesting from
the statutes, it will be found in sections prohibiting suspension of
the power of alienation rather than in the sections relied upon by the
New York courts, and, if so found, that it will be determined that
it is the only rule to be found in the statutes.
Ol1ver S. Rundell.
University of Wisconsin Law School.
PUBLIC POLICY AND PERSONAL OPINION

THE real relation of economics to law, only recently acquiring
positive recognition, is illuminated by the varying decisions
in regard to attempted restrictions on the enjoyment of personal
property.
A certain narrow theory of law predicates its specific rules on a
Divine preordination, which makes their eternal immutability tran
scendent of human ideas of utility. "Precedents and rules must be
followed even when they are flatly absurd and unjust, if they are
agreeable to ancient principles." Practically, however, the matter
of current utility does affect the decision of cases, even in the face
of precedent. Lord Haldane but put this fact into words when he
said,1 "I think that there are many things of which the judges are
bound to take judicial notice which lie outside the law properly
so called, and among those things are what is called public policy
and the changes which take place in it. The law itself may become
modified by this obligation of the judges." Some rules of law, he
said, without drawing the line of distinction, like the Rule against
Perpetuities, have become "a crystallized proposition forming part
of the ordinary common law, so definite that it must be applied
without reference to whether a particular case involves the real
mischief to guard against which the rule was originally introduced."
But between these rules and those "in which the principle of public
policy has never crystallized into a definite or exhaustive set of
propositions, there lies an intermediate class. Under this third
category fall the instances in which public policy has partially pre
cipitated itself into recognized rules which belong to law properly
so called, but where these rules have remained subject to the mould
ing influence of the real reasons of public policy from which they
proceeded."
There can be no question but that where no rule at all has been
definitely precipitated,, judicial decisions are time and again founded
on nothing but the judicial apprehension, or conception, of public
policy. Every adjudication that some novel statute does or does
not constitute "due process of law" is of this type. And there are
'Rodriguez v. Speyer Bros., 88 L. J. K. B. 147, 119, L. T. 4o9 (1918).
366
MICHIGAN LAW REVIEW
not infrequent instances, some of which Lord Haldane cites, in

which definite rules of precedent have been disregarded or modified
through judicial view of public policy.2
Example, were it necessary, is found in the decisions concerning
attempts to restrict an owner's enjoyment of personal property.'*
But these cases are even more apt as illustrating how amorphous
and absolutely unauthenticated is the substance of this so-called
public policy upon which such changes are justified.
The earliest cited authority in these cases is the statement of
Coke3 wherein he says, "And so it is if a man be possessed of a
lease for years, or of a house, or of any other chattel real or p:rsonal, and give or sell his whole interest or property therein, upon
condition that the donee or vendee shall not alien the same, the
same is void, because his whole interest or property is out of him,
so as he has no possibility of a reverter, and it is against trade and
traffic, and bargaining and contracting between man and man. * * *"
If Coke meant that such restrictions do not bind the owner, as
9An instance of the latter is found in Bechuanaland Co. v. London Bank
[1898], 2 Q. B. 658, in which the court held certain instruments to be nego
tiable because of the prevailing custom of dealers therein, despite the fact
that the custom was not part of the old law merchant and that such instru
ments had been theretofore judicially declared not negotiable. Occasionally
the actuality of the change is covered in a way that Max Beerbohm might
aptly call "inerubilous." Witness Brooklyn City & N. R. Co. v. National
Bank, 1o2 U. S. 14. The plaintiff was the pledgee of a promissory note
which he had taken subsequent to the loan for which he claimed it as
security, and for which he had given no other consideration. The court's
argument seems to be as follows : Only holders for value are protected
against equities; the pledgee of a note as security for a preexisting debt
ought to be protected as a matter of public policy: therefore, such pledgee
is a holder for value.
** It may be said that these decisions involve no change of "law," but
only diverse "conclusions"; that they involve the minor premise, "what is
contrary to public good," while the major premise, that assumed obligations
which are contrary to public good cannot be enforced, is unaffected. In
view, however, of the tendency of courts to declare themselves bound by
prior conclusions of this sort, where the facts admit of any generalization
at all, the precedents in which certain types of contracts are held not to
conflict with public policy seem properly to be treated as expressive of a
rule, and therefore, in one sense, of law. But whether the decisions are
called one thing or another does not affect the gist of this discussion.
'Coke on L1ttleton, Art. 36o, Vol. II [J. H. Thomas' Ed.], p. 26.
PUBUC POLICY AND OPINION
267
owner, and was referring only to their lack of effectiveness at law,

his statement has been consistently followed.4
But in equity there has been apparent disagreement with it.1 The
opposite view appears in De Mattos v. Gibson.9 One Curry had
mortgaged a ship to Gibson, by virtue of which mortgage Gibson
had a legal right to sell the vessel. But he knew at the time of
taking the mortgage that Curry was under obligation to De Mattos
to use the vessel in a certain way. De Mattos asked an injunction
which, among other things, should restrain Gibson from selling the
vessel otherwise than subject to the use for which Curry had con
tracted. The injunction was denied because the plaintiff had lost
what equitable rights he might have had. But the court expressly
said that if Gibson had shown an intent to cause Curry'to break
his contract, by selling the vessel without subjection to the con
tract, the court would have restrained him. In such case, there
would have been an enforceable limitation upon Gibson"s right of
alienation, in favor of one who had no ownership and with whom
Gibson was not in privity of contract.
This has been the actual decision in two New York cases. In
New York Bank Note Co. v. Hamilton Bank Note Co.1 the Kidder
Press Co. had contracted with the plaintiff not to s~ll machines
made according to its patents to anyone except the plaintiff. It
did sell, however, to the defendant, who knew of the agreement.
'In conflict with it, however, are Stewart v. Williams, 2 Md. 425, and
French v. Old South Society, 1o6 Mass. 179. A notable exception also is
the growing tendency of courts and legislatures to look with favor upon
"spendthrift trusts," and to hold such restrictions on alienation to be valid.
See Gray, Restra1nts on Auen\t1ons [2nd ed.].
The distinction between the legal and equitable effect is spoken of in
Matter of Petition of Argus Co., 138 N. Y. 557. The parties had agreed
that no one of them would sell his stock in a certain company without first
offering it, at a fair price, to the others. One of them did sell, in disregard
of this agreement, and the buyer of the stock voted it at an election of
directors. The suit involved the validity of this election. The court held
that although the agreement might be valid and equity might even have
enjoined its breach, nevertheless "the transfer to Speer vested in him the
legal title to the shares, although they were not transferred on the books
of the company," and he had the legal right to vote the stock.
4 De Gex and Jones, 276 (1858).
.'28 App. Div. 411, 83 Hun. 593 (1898).
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MICHIGAN LAW REVIEW
Because of its knowledge of this agreement not to sell, the defend

ant was enjoined from using machines already purchased and the
Kidder company was restrained from selling any others. The same
thing was held in Murphy v. Christian Press, etc., Co.9 in the fol
lowing year. The Catholic Publication Society had contracted with
the plaintiff that it would not sell books printed from certain plates
at less than a stated price. The Catholic company's receiver, in
dissolution, sold the plates to the defendant, who knew of the terms
of the contract. The defendant was enjoined from selling books
below the stated price, although there was no contract between it
and the plaintiff. The agreement, stated the court, "although tech
nically a personal one, related to the use of its property, the copy
right and plates, and obligated all who might acquire that property
with notice of the agreement. This is the settled doctrine of the
Court of Appeals where the agreement relates to real estate. We
can see no reason why the same rule should not apply in the case
of personal property.""
But the New York judicial idea of public policy, although in
accord with that of the court in De Mattos v. Gibson, supra, was
ignored by the English court in Taddy & Co* v. Sterious & Co.w
a few years later. The plaintiff was a manufacturer of tobacco
which he sold to wholesalers on their promise that it should not
be resold below a stated price. The defendant had bought from a
wholesaler, with knowledge of this limitation on the right to resell.
There was no privity of contract, the court held, between plaintiff
and defendant, and injunction against reselling below the stated
price was denied on the statement, as reported without discussion
or elaboration, that "conditions of this kind did not run with the
goods and could not be imposed on them."
The Massachusetts court also has differed from the New York
judges in its view of the policy of such limitations upon ownership
and ignored the New York decisions, saying, "This right (to con38 N. Y. App. Div. 426 (1899).
'In Clemens v. Estes, 22 Fed. 899 (1885), the only reason given for
refusing injunction against the third person was that he had no knowledge
of the restriction. In Dr. Miles Medical Co. v. Goldthwait, 133 Fed. 794
(19o4), an injunction against one who did know of the contract was allowed.
"2o T. L. R. 1o2 (19o3).
PUBLIC POLICY AND OPINION
269
trol the re-sale price) is founded on the personal contract alone,

and it can be enforced only against the contracting party. To say
that this contract is attached to the property and follows it through
successive sales which severally pass title, is a very different propo
sition. We know of no authority nor of any sound principle which
will justify us in so holding."11
The statement of Coke, as quoted above, is followed by the quali
fication that this legal futility of restriction upon alienation is "to
be understood of conditions annexed to the grant or sale itself, in
respect of the repugnancy, and not to any other collateral thing, as
hereafter shall appear." This, too, courts both of law and equity
have followed, until recently, so far as to affirm the validity of
contracts whereby the alienation and enjoyment of chattels is
restricted.12
In Elliman Sons & Co. v. Carrington & Son,13 decided only two
years previous to Taddy v. Sterious, supra, and in no wise affected
by that decision that the restriction did not run with the ownership,
it appeared that the plaintiff had sold bottles of its patent medicine
to the defendant in consideration of the latter's agreement not to
resell them below a stated price. The defendant did resell below
that price, in disregard of his agreement, and the plaintiff sought
to restrain him. The defense was that the contract itself was
opposed to public policy and therefore void. The court considered
it unnecessary even to hear argument in support of the validity of
the contract, but held it valid, saying, "It is merely a question
whether a man is entitled, when he is selling his own goods, to
make a bargain as to the use to be made of them by the purchaser.
11 Garst v. Hale, 179 Mass. 588 (1oo1). Even Massachusetts, after this
decision, allowed injunction restraining the defendant from inducing the one
who was bound by such a contract from breaking it. Garst v. Charles, 187
Mass. 144 (19o5). Thus the validity of the contract was recognized. The
Federal courts also have granted such injunctions. Dr. Miles Medical Co.
v. Piatt, 142 Fed. 6o6 (19o6) ; Hartman v. John D. Park & Sons, 145 Fed.
358 (19o6) ; Dr. Miles Medical Co. v. Jaynes Drug Co., 149 Fed. 838 (19o6).
"This discussion does not relate to those numerous contracts whereby
the parties have attempted to restrict the production of goods, nor to those
whose purpose is to eliminate or reduce competition ; e. g., agreements not
to reenter business, or not to sell to certain persons, as in Park & Sons Co.
v. National Druggists' Asso., 175 N Y. 1.
" [19o1]' 2 Ch. Div. 275.
27o
MICHIGAN LAW REViBW
It is said that the contract is against public policy ; but that phrase
merely embodies, for the present purposes, the great principle of
restraint of trade, and to say that it is to prevent Messrs. Elliman
from exercising their own discretion seems to me to be applying a
well settled, principle of law to facts to which it can not have any
possible application." So far as the report indicates, the plaintiff
was the only concern which made that particular medicine, and it
made similar contracts with all of its distributors.
In Garst v. Harris1* the plaintiff was the manufacturer of Phenyo
Caffein. He sold bottles of it to the defendant on the agreement
that the latter should not resell below a set price. Here also the
plaintiff controlled the entire output of the particular article, and
there is nothing in the case to negative the presumption that he
made similar contracts with all his customers. The contract was
held valid, in an action for damages from its breach, the court
saying, "When, as here, there is a secret composition, which the
defendant presumably would have no chance to sell at a profit at
all but for the plaintiff's permission, a limit to the license, in the
form of a restriction of the price at which he may sell, is proper
enough." In Garst v. Hale such a restriction was held not to run
with the ownership, but in Garst v. Charles19 the validity of the
contract as between the parties was again recognized.17
The New York courts have taken the same position,18 saying,
"There is nothing to prevent an individual from selling any prop
erty that he has at any price which he can get for it. Nor is there
any reason why an individual should not agree that he will not
sell property which he owns at the time of making the agreement,
or which he thereafter acquires, at less than at a fixed price."19
" 177 Mass. 72 (19oo).
"179 Mass. 588 (19o1).
" 187 Mass. 144 (19o5).
" Myer v. Estes, 164 Mass. 457 (1895), concerned the validity of a single
contract. The plaintiff had sold electrotype plates to the defendant on the
latter's promise neither to resell them nor to use them in other than a stipu
lated way. The defendant did resell them, and the court held that as hisbuyer, who had no notice of the agreement, took the title free from any
restrictions, the plaintiff was damaged and could recover at law.
"Walsh v. Dwight, 4o App. Div. 573 (1898).
"In Missouri, Griffith v. Lewis, 17 Mo. App. 6o2 (1885), the court held,
without deciding whether such a limitation was valid or not, that at least

One of a regular system of contracts by which the manufacturers
of a certain brand of groceries bound their customers not to resell
below a stated price was upheld by the Kentucky courts in Com
monwealth v. Grinstead.20 A contract by the buyer not to resell at
all was held valid and enforceable by the Texas court.21
The Federal courts also recognized such contracts as valid and
not in conflict with public policy. In Clemens v. F,stes,23 an injunc
tion to restrain a sub-buyer from reselling below the price set by
his seller's contract was refused only on the ground that the defend
ant had no knowledge of the contract. In a similar decision in
Harrison v. Maynard, it was added that the contract itself would
have been enforceable. In Dr. Miles Medical Co. v. Goldthwaite"-5
and Dr. Miles Medical Co. v. Plait29 there was a specific recognition
of the contract as valid, although the plaintiff controlled the entire
output of such goods and apparently made similar contracts with
all his customers. In Hartman v. John D. Park & Sons,27 there
was a similar holding, with the further express declaration that
such contracts got no peculiar validity from the fact that the article
concerned was made under a secret process.28
In another case of the same year2" the plaintiff had sold books,
with a restriction that they should not be resold before a stated
time nor below a stated price. The court first declared that the
one who had disregarded it could not recover from the seller a rebate
promised on condition of its observance. Accord, N. Y. Ice Co. v. Parker,
21 How. Pr. (N. Y.) 3o2 (1861).
"111 Ky. 2o3, 56 L. R. A. 7o9 (19o1).
" Ice Co. v. Brewing Asso., 8 Tex. Civ. App. 1.
An agreement between owners of shares of stock in a corporation that
no one of them would sell within six months without the consent of all was
upheld in Williams v. Montgomery, 148 N. Y. 519 (1896). Accord, Hey v.
Dolphin, 36 N. Y. S. 627, 92 Hun. 23o (1895). Contra, Fisher v. Bush, 43
N. Y. Sup. Ct. 641 (1885). In Moore v. Bank of Commerce, 52 Mo. 377
(1873), a by-law of a corporation imposing a restriction upon the power
of stockholders to sell their shares was held void.
"22 Fed. 899 (1885).
"61 Fed. 689 (1894).
"133 Fed. 794 (19o4).
" 142 Fed. 6o6 (19o6).
" 145 Fed. 35o (19o6).
"Accord, Dr. Miles Medical Co. v. .Taynes Drug Co., 149 Fed. 838 (1906).
"Authors & Newspapers Asso. v. O'Gorman Co., 147 Fed. 616 (19o6).
MICHIGAN LAW REVIEW

plaintiff had no peculiar right to restrain the resale because of any
copyright covering the books, and then held, that if the defendant
had notice of this restriction he was bound by it, saying, "It is said
that this restraint on alienation is contrary to public policy. I am
unable to see any inequity or violation of public policy in the
agreement by the purchaser that he will not resell it within a lim
ited period."'0
In Phillips v. Iola Portland Cement Co.," the court decided that
a contract between buyer and seller whereby the former agreed not
to resell at all outside of a stated territory, was neither an unlawful
restraint of trade nor obnoxious to the anti-trust law of 1890.
Thus the harmony of decision stood until the decision of the
Circuit Court of Appeals in John D. Park & Sons Co. v. Hartman."
This court held that, while a single contract obligating the buyer
not to resell below a certain price would be valid, a system of con
tracts whereby he attempted to control the resale price of his entire
output was contrary to public policy and the contracts were void.
The court's "distinction" of the prior decisions is decidedly unsat
isfactory. The authority which it cites in support of the holding
consists of such cases as Prater v. Campbell,33 to the effect that a
"warranty" in the sale of a chattel is personal to the buyer and
does not so run with the chattel as to give subsequent owners a
right of action. The court does not expressly consider the economic
effect of its decision, and justifies its conclusion by precedent. But
as precedent as a whole does not lead to the court's conclusion,
it is rather obvious that the court formed its own opinion as to
what public policy required and then sought to support it by prece
dent. The case of Commonwealth v. Grinstead, supra, decided by
the same Kentucky court, in conflict with the decision of the Hartman case, is ignored.34
" Bobbs-Merrill Co. v. Straus, 21o U. S. 339 (19o7), was decided on the
assumption that there was no contract relation at all between the parties,
and it was therefore unnecessary to consider the validity and effect of such
contracts.
M 125 Fed. 593 (19o3).
"153 Fed. 24 (19o7).
" 1 1o Ky. 23.
" The court distinguishes Murphy v. Christian Press Co., supra, on the
ground that the restriction therein enforced acquired validity through the
PUBLIC POUCY AND OPINION
273
Even in the decision of the Supreme Court,35 affirming the inva

lidity of such contracts, the opinion is not based on any examina
tion of, or argument as to, economic actualities, but rather upon
what the precedents that appealed to the court had held to be good
policy.36
The Federal courts have, of course, followed these latter deci
sions.37
The State courts, however, seem not to have been convinced of
the correctness of the Supreme Court's conclusion. In Ingersoll &
Bro. v. Hahne & Co.,38 the plaintiff sought to enjoin the defendant
from selling watches made by the plaintiff and sold by it only on
condition that buyers and subsequent owners should not resell
below a stated price. It does not appear that defendant was a
party to such a contract, but he did have notice of it. The case was
decided in part under a New Jersey statute, interpreted to prohibit
such acts as the defendant was charged with, but the court expressly
said, "On the argument there was, and in counsel's brief there is,
a long discussion as to whether the contract against price cutting,
copyright on the booksignoring the statement by that court that it could
"see no reason why the same rule (that applied to real estate) should not
apply in the case of personal property" ! The express finding in Authors &
Newspapers Asso. v. O'Gorman Co., supra, that the restriction acquired no
especial validity from the copyright was not referred to.
"Dr. Miles Medical Co. v. John D. Park & Son, 22o U. S. 373 (191o).
" It is particularly odd that the Supreme Court should thus have itself
imposed a limitation upon freedom in individual contract, in view of the
hesitancy with which courts have permitted even legislatures to limit
freedom of contract in the interest of public good. Adair v. United States,
2o8 U. S. 161 ; Braceville Coal Co. v. People, 147 Ill. 66 ; State v. Fire Creek
Coal & Coke Co., 33 W- Va. 188, ct al.
" A contract of the Ford Motor Co. with a distributor to the effect that
the latter would not resell below a fixed price was held, without discussion,
to be "concededly" invalid. No mention was made of its being part of a
"system" of contracts. Ford Motor Co. v. Union Motor Sales Co., 225 Fed.
373 (1914) ; 244 Fed. 156 (1917). It is interesting to note that after this
decision the Ford company changed its contracts so as to retain title in itself
as against its distributors, so that the latter became mere sales agents. The
obligation of these agents not to sell below the stated price was enforced in
Orebough v. New, 6 Ohio App. 4o4 (1917). So, also, Ford Motor Car Co.
t. Benj. E. Boone, Inc., 244 Fed. 335 (1917).
"88 N. J. Eq. 222 (1917) ; Affd. 1o8 Atl. 128.
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MICHIGAN LAW REVIEW
evidenced by the notice, is contrary to public policy and defendant

relies upon cases in the Supreme Court of the United States. * * *
I am now considering the public policy of the State of New Jersey
as distinguished from any public policy of the United States. * * *
After careful consideration, I have come to the conclusion that
upon the general proposition I agree with the dissenting opinion
of Mr. Justice Holmes in Dr. Miles Medical Co. v. John D. Park
& Sons Co."
In California39 the court was asked to enjoin a buyer of olive-oil
from reselling at a price below that stipulated in his contract with
the seller, the plaintiff. It granted the injunction on the ground
that such contracts restricting the resale price were perfectly valid,
at least so long as they did not affect the entire supply of the com
modity. This was followed by Ghirardelli v. Hunsicker,*0 uphold
ing one of a system of contracts that the buyers of the plaintiff's
brand of chocolate should not resell below the price stated. The
decision was "distinguished" from the patent medicine cases on
the ground that in them the contracts covered the whole supply of
"Peruna," while in the instant case the contracts, although they
covered all of "Ghirardelli's," did not cover all chocolate.41
The cases involving chattels covered by a patent right properly
stand on a different basis from those just discussed. When an
article involves an invention protected by patent, the restriction
upon its owner's right of alienation, or of enjoyment, is imposed
by the patent statute. It is in no sense a contract restriction ; it is
not created by the patentee, and has no relation to ownership as
such. The ownership of a chattel may be in one by virtue of his
creation of the chattel; there may be no suggestion of contract or
any other relation between him and a patentee. Yet, if the chattel
involves a patented invention, that owner is precluded from using
his chattel or selling it without permission of the patentee. "Own
ership" of a chattel gives no right whatever either to use or to sell
that chattel, if it involves a patented invention. The patentee has
no right to the chattel itself." Its owner is indubitably owner in
"Grogan v. Chafee, 156 Cal. 611 (19o9).
"164 Cal. 3SS (1912).
See also Fisher Flouring Mills Co v. Swanson, 76 Wash. 649. Contra,
Hill Co. v. Gray & Worcester, 163 Mich. 12 (191o).
"Belknap v. Schild, 161 U. S. 1o.
275
every sense of the word, yet every patent decision holds that he
may be restrained from either using it or selling it without the
patentee's permission. As an example, in Dickerxon v. Sheldon*3
the defendant had bought certain chattels at a sale by the United
States government of articles which had been confiscated for non
payment of customs duties. They embodied an invention patented
to plaintiff. On suit by the patentee the court held that the defend
ant indubitably got "title" to the articles and the plaintiff had no
interest in them, but that the defendant could not sell them without
the plaintiff's permission.4*
If the patentee chooses to allow the owner of a chattel, involving
his invention, to use or sell the chattel at all, he is not bound to
grant unrestricted permission. "'Owning the whole, he owns every
part."45 On this theory that the patentee has a right absolutely to
exclude others from any enjoyment of the invention, it has been
held that he may not only arbitrarily determine who may invade
his monopoly of enjoyment, but also how they may invade it. Thus,
he may permit a licensee to enjoy the invention in a particular
place only and only by himself, and the licensee will be restrained
from utilizing this invention elsewhere or with other persons.4
So, the right to use and enjoy even machines made by the licensee
himself may be limited to a stated time, and even persons who
have bought the machines from such maker have no right to use
them after the stated period.47 He may effectively limit the licensee
as to the purpose for which he may use embodiments of the inven
tion.48 Restrictions as to the territory within which a licensee may
use chattels embodying the invention are common.49 All these
restrictions on the use and enjoyment of chattels, it may be repeated,
"98 Fed. 621 (1899).
44 A payment of damages for unwarranted use does not give the owner
right to use thereafter. Birdsell v. Shabiol, 112 U. S. 485.
"Victor Talking Machine Co. v. The Fair, 123 Fed. 424 (19o3).
"Rubber Co. v. Goodyear, 9 Wall. 788 (1869).
"Mitchell v. Hawley, 16 Wall. 544 (1872).
"Gamewell Fire-Arms Co. v. City of Brooklyn, 14 Fed. 235 (1882).
"Brush Elec. Co. v. Col. Elec. Lt. & Co., 52 Fed. 945 (1892). This
should not be confused with the fact that if one is given power to sell, with
out restrictions, embodiments of the invention, his buyers do take without
restriction, although he, the seller himself, may be limited as to where or
276
MICHIGAN LAW REVIEW
are judicially sanctioned despite the ownership of the chattel by

the restricted user.
The price at which the licensee may sell chattels has been held a
valid limitation by the patentee in protection of his monopoly. So "a
patentee may reserve to himself as an ungranted part of his monop
oly of sale the right to fix and control the prices at which jobbers
and dealers may sell the patented article to the public, and * * *
whoever, without permission, enters the reserved portion is an
infringer."90 A limitation that the licensee must not deal in goods
of other persons than the manufacturer has been upheld.81 In
Heaton Peninsular Button-Fastener Co. v. Eureka Specialty Co.51
it was held that the patentee might restrict the licensee's authorized
invasion of his monopoly to the use of the chattel embodying it by
the latter in connection with other specified articles only. The inven
tion in that case was of a button-fastening machine. The patentee
had no monopoly of the fasteners, but only of the machine for attach
ing them. He sold such a machine to the defendant with the restric
tion that if the defendant used it he must use it only with fasteners
made by the plaintiff. The court held that its use with any other
fasteners was a use which had not been authorized by the patentee
and was therefore an infringement of the patented monopoly. "The
buyer of the machine," said the court, "undoubtedly obtains the
title to the materials embodying the invention. * * * But, as to the
how he may sell. The purchasers' rights follow from the fact that the pat
entee has neither expressly nor impliedly put any restriction on their right
to invade the monopoly, so far as the chattel purchased is concerned, but
has by implication of fact opened it wide in respect to the particular chattel
bought. It is not because he is owner that the buyer has the unrestricted
enjoyment of it, but because in authorizing the licensee to pass title to him,
the patentee impliedly opened his monopoly. Adams v. Burke, 17 Wall. 453.
"Victor Talking Machine Co. v. The Fair, 123 Fed. 424 (19o3). Accord,
Bement v. Natl. Harrow Co., 186 U. S. 7o (19o1) : "The very object of these
(patent) laws is monopoly, and the rule is, with few exceptions, that any
conditions which are not in their very nature illegal with regard to this kind
of property, imposed by the patentee and agreed to by the licensee for the
right to manufacture or use or sell the article, will be upheld by the courts.
The fact that the conditions in the contracts keep up the monopoly or fix
prices does not render them illegal."
"Bement v. National Harrow Co., 186 U. S. 7o.
"77 Fed. 288 (1896).
277
right to use the invention, he is obviously a mere licensee. * * *

The license defines the boundaries of a lawful use."
In 191 1, however, the argument was advanced93 that whenever
a patentee sells an embodiment of his inventionas distinct, per
haps, from authorizing another to make one for himself?he can
not legally restrict the manner in which the buyer may use it, or
the extent of use. It had already long been decided that, in the
case of a sale without any express limitation, a real permission to
use the thing freely is implied by the fact of the sale. But the argu
ment now presented was that this freedom to use must be decreed
as a matter of law from every sale and that a patentee who chooses
to open up his monopoly at all, if he does so by a sale of a chattel,
must open it completely and without restriction. This argument
so impressed three of the court, Justices White, Hughes, and
Lamar, that they accepted it. The majority, however, Justice Day
taking no part, still held to the proposition that the patentee, since
he could exclude others from any use of such machines, might
restrict others to such limited use as he might see fit.
After this," the Supreme Court held, without any disagreement,
that a combination of manufacturers to make and control the sale
of goods covered by various patents was not an illegal combi
nation in restraint of trade, even though the combination licensed
outsiders to use the patented goods only on condition that such
licensees should not use similar goods of competitors.
Later in the same year, however, in the face of all this consist
ently opposed authority, the Supreme Court held that a patentee
who, by selling goods to another implicitly permits him to imade
the monopoly by resale, can not legally restrict him as to the price
at which he shall resell.50 No reason, either utilitarian or otherwise,
is presented, the whole discussion being merely a "distinction'' of
opposing authority. Four Justices, McKenna, Holmes, Lurton, and
Van Devanter, dissented, without reported opinion.
A few years later 09 the doctrine, that as the patentee owns the
whole of the monopoly he owns every part of it, was again denied,
"Henry v. Dick Co., 224 U. S. 1.
"U. S. v. Winslow, 227 U. S. 2o2 (1912).
"Bauer v. O'Donnell, 229 U. S. 1 (1912).
"Motion Picture Co. v. Universal Film Co., 243 U. S. 5o2 (1916).
278
MICHIGAN LAW REVIEW
this time more explicitly. It was held that if a patentee by sale

impliedly authorizes the use of the chattel at all, he can not by
notice to owners of it limit the manner of their use of it and con
fine them to use with stipulated materials. Again no reason is
given, except the final statement, that to recognize the validity of
the limitation "would be gravely injurious to that public interest,
which we have seen is more a favorite of the law than is the pro
motion of private fortunes." Mr. Justice Holmes, who, with Jus
tices McKenna and Van Devanter, was consistent in his dissent,
argued that the patentee's right to limit the extent to which he
would open his monopoly had "become a rule of property that law
and justice require to be retained," and that no danger to the public
interest had been shown sufficient to justify its denial.17
In this article there is intended no criticism of the merits of
these various decisions. The discussion has to do rather with the
manner in which some of them were reached. Between judgeselected law and judge-made law there is a world of philosophic
"Accord with majority opinion, Straus v. Victor Talking Machine Co.,
243 U. S. 49o (1916); Boston Store v. Am. Gramophone Co., 246 U. S. 8
(1917).
In United States v. Colgate Co., 25o U. S. 3oo, the defendant was indicted
for violation of the Shertnan anti-trust act. It was alleged to have created
a combination of dealers and suppressed competition in the sale of its prod
ucts. The facts were that it had sent to dealers lists of the price at which
its products should be sold to the public and had refused to sell to any
dealer who failed to conform to such list prices, and had required "assur
ances" of adherence to the price requirements of those to whom it did sell.
The Supreme Court adopted the lower court's holding that no "contract"
between the defendant was charged in the indictment, and that it was not
criminal for a manufacturer merely to refuse to sell his product except "with
the understanding that such customer will resell only at an agreed price."
In United States v. A. Schrader's Sons, Inc., Supreme Court, March I,
192o, the defendant was also charged with violation of the Sherman act.
It was charged with having entered into written contracts with all of its
purchasers that they would not resell below stated prices. The lower court
decided that there was nothing to distinguish this case from that of U. S.
v. Colgate, except that the agreements in that case were tacit, or oral, and
in this case the contracts were written, and that this was a distinction with
out a difference. Accordingly, it sustained a demurrer to the indictment. The
Supreme Court, however, pointed out that no contract was charged in the
Colgate case, but only a refusal to sell to those who would not maintain
prices. The making of express contracts that the buyer would not resell
279
distinction and some real difference. "Selection" presupposes that

the substance of whatever rule is followed has originated extraneously to the judicial mind. Selection, while it does vest in the judge
a real discretionary power, is nevertheless antithetical to the idea
of free legislative power in the judiciary.
Decisions which are wholly pragmatic and have no foundation in
either precedent or definite custom must be, at their very best, on
the border line between selection and creation. The grave objec
tion to such decisions is expressed by Baron Parke9" in his state
ment that "public policy" is "a vague and unsatisfactory term, and
calculated to lead to uncertainty and error, when applied to the
decision of legal rights ; it is capable of being understood in differ
ent senses; it may, and does, in its ordinary sense, mean 'political
expediency,' or that which is best for the common good of the com
munity; and in that sense there may be every variety of opinion,
according to education, habits, talents, and dispositions of each per
son, who is to decide whether an act is against public policy or not.
To allow this to be a ground of judicial decision would lead to the
greatest uncertainty and confusion. It is the province of the states
man, and not the lawyer, to discuss, and of the legislature to deter
mine, what is the best for the public good. It is the province of the
judge to expound the law only; * * * not to speculate upon what is
the best, in his opinion, for the advantage of the community."
Despite this undeniably forceful objection to any purely utilitarian
which means, in effect, to any unprecedenteddecision, courts
do constantly render such decisions. And if the common law is to
be an expression of developing ideas of right rather than a petrify
ing formulation of quondam beliefs, courts must continue to pro
vide the vital metabolism by eliminating obsolete ideas and formu
lating into law those new theories which have prevailed in the
conflict of ideas. When judges base their opinions, in these probelow the stated price it held to be criminal. Justices Holmes and Brandeis
dissented.
But in U. S. v. United Store Machine Co., 247 U. S. 32 (1917), the court
said that the foregoing holdings do not apply where the patentee has only
leased the chattel, and that in such cases he may limit the use, and may
restrict even the collateral acts of the user as a condition of the right to use
at all.
"Egerton v. Earl Brownlow, 4 H. C. L. 1, 122 (1853).
MICHIGAN LAW REVIEW

gressing decisions, upon facts as they exist, or upon truly prevailing
beliefs, they are, in a measure at least, selecting a rule; they are
restricted by a certain fitness of conclusion to the facts. But when
the very facts upon which such a conclusion is based are themselves
empirical conclusions of the judicial mind, then there can be no
pretense of anything but judicial free-will in the decision, and it is
open to all the objections raised by Baron Parke.
The action of the Supreme Court in precluding restrictions upon
the use or alienation of chattels seems most obviously to fall within
the latter class, however wise the rule may be in fact. There is no
doubt that the decisions were based on the majority idea of sound
"public policy." Although there is much discussion of precedent
as though the decision might be predicated thereon, in each case
the court does expressly justify itself on the ground of public expe
diency, and it could not otherwise have evaded the frequent prior
judicial approval of such restrictions. As Mr. Justice Holmes said
flatly, in his dissenting opinion in the Dr. Miles Medical Co. case,58
"There is no body of precedent that by ineluctable logic requires
the conclusion to which the court has come. The conclusion is
reached by extending a certain conception of public policy to a new
sphere."
But in thus upsetting what had theretofore "become a rule of
property," the majority of the court neither discussed the pro and
con of public policy nor considered evidence in regard to it. It is
most unusual for a court to render a decision based on precedent,
the field in which above all others judges have peculiar knowledge,
without expounding the precedents chosen as controlling and
weighing the merits of those rejected. Not infrequently a court
has expressly demanded instruction in precedent from the attorney?
concerned in the case. Yet in none of the decisions under discus
sion did the court really consider and analyze the business condi
tions and economic needs of the country upon which alone an opinion
of political expediency should be predicated. Neither did the court
ask for instruction as to such conditions and the economic value or
detriment of restriction upon the enjoyment of chattels. The deci
sions were undeniably personal.
That men who are acquainted by experience and special study
"22o U. S., page 441.
'
281
with the practical business conditions which these decisions affect

are not altogether in accord with this judicial idea of what is best
for the country is equally undeniable.00
The extent to which such empiricism may lead a court is shown
in the opinion of the New York court which held unconstitutional
a statute aimed at bettering conditions in the slums of New York
City and alleviating the frightful conditions prevailing in crowded
tenement houses. The court's reason was that "It cannot be con
ceived, how the cigarmaker is to be improved in health or morals
by forcing him from his (tenement) home and its hallowed asso
ciation and beneficent influences to ply his trade elsewhere."01
In deciding the case of Muller v. Oregon,92 the court followed
the logical course in studying counsel's elaborate presentation of the
actual conditions which the statute, whose necessity to the public
good was under consideration, was designed to affect. They were
judges "more learned than wittie, * * * and more advised than con
fident."03 When courts do render decisions founded on their own
"A powerful argument, on economic grounds, in favor of the enforce
ment of restrictions upon the right of resale is given by Harry S. Gleick in
24 Case & Comment, 193. He cites a number of other students of economics
in support. See also "Predatory Price Cutting and Unfair Trade," by Edward
S. Rogers, 27 Harv. L. Rev. 139. The United States Chamber of Commerce
has gone on record as favoring the validity of certain restrictions upon the
right of resale. Chicago Herald, May 19, 1919, page 13.
" In re Jacobs, 98 N. Y. 98.
*,2o8 U. S. 412. The effect of considering the facts is shown in two
New York decisions. In People v. Williams, 189 N. Y. 131, the court invali
dated a statute prohibiting women from working in factories at night. Not
cne word as to the practical effect of the law, or as to the conditions which
called it forth, appears in the opinion. In People v. Schweinler Press, 214
N. Y. 395, after a discussion of the physical effect of such night work and
a consideration of conditions as shown by the report of the Factory Investi
gating Committee, the court flatly reversed its earlier decision and held a
similar statute to be valid.
Compare, also, the reasoning of the different decisions in Rodgers v.
Coler, 166 N. Y. 1, and Ryan v. City of New York, 177 N. Y. 271 ; Ritchie
v. People, 155 Ill. 98, and Ritchie & Co. v. Wayman, 244 Ill. 5o9. Scientific
opinion was the basis of the decision in Washington v. Feilen, 7o Wash. 65,
41 L. R. A. (N. S.) 418.
" Compare, "In Lochner v New Ycrk, 198 U. S. 45, the state authority
in the specific instance was denied because no reasonable relation was dis
cernible to the majority between a ten-hour law for bakers and the public
282
MICHIGAN LAW REVIEW
conceptions of public policy, whether they call the decisions "con

clusions of fact" or applications of "law," the very public good
which they are seeking requires adherence to the principle that, in
the words of Mr. Justice Brandeis, "To decide wisely it is neces
sary to consider the relevant facts, industrial and commercial."
John Barker Wa1te.
University of Michigan Law School.
welfare. This judgment was based upon a view of the nature of the baker's
employment beyond ten hours as known 'to the common understanding.' It
is now clear that 'common understanding' is a treacherous criterion both as
to the assumptions on which such understanding is based and as to the evil
consequences, if they are allowed to govern. The subject is one for scientific
scrutiny and critique, for authoritative interpretation of accredited facts."
Argument of counsel in Bunting v. Oregon, 243 U. S. 426, citing Pound,
"Liberty of Contract," 18 Yale L. J. 48o.
Mr. James A. Veasey in his article on "The Law of Gas and Oil," 18
M1ch. L. Rev. 454, points out that a certain line of decisions regarding oil
and gas leases has been made on an utterly false assumption of fact. This
error arises because "in the later cases the courts do not receive proof upon
the nature of oil and gas, nor have their views in this regard kept pace with
the expansion of practical and scientific knowledge upon the subject. Inas
much as they predicate their conception of the matter upon judicial knowl
edge alone, the expressions found in the earlier decisions relating to the
question are persistently repeated in the later cases. Hence the error perse
veres."
CONSTITUTIONAL LAW IN 1919-192o.
Ill1
VI. Retroact1ve C1v1l Leg1slat1on

FIVE of the corporations which fought in vain against exercises
of the police power profited nothing from their grasp at the
obligation-of-contracts clause. In Milwaukee Electric Ry. & Light
Co. v. Wisconsin* the contract relied on was a clause in the charter
of a street railroad imposing on it the duty to keep the space between
and near its tracks in good repair "with the same material as the
city shall have last used to pave or repave these spaces and the
street previous to such repairs, unless the railway company and
the board of public works of said city shall agree upon some other
material, and said company shall then use the material agreed
upon." The company contended that "its obligation is, in any event,
limited to repaving with such material as the city had last used
between the rails." Mr. Justice Brandeis, for all the court except
Justices Pitney and McReynolds, answered : "This would put upon
the city the burden of paving the whole street in case of any inno
vation in paving save by agreement of the company and the city.
It is not a reasonable construction of the ordinance." This makes
the phrase "these spaces and the street" equivalent to "these spaces
or the street." The pavement required of the company was the
same as that which the city had laid on all the street but the railway
zone. The complaint of the road that the expense would reduce
its income below a reasonable return on its investment was answered
by saying that "there is no warrant in law for the contention that
merely because its business fails to earn full six per cent upon the
value of the property used, the company can escape either obliga
tions voluntarily assumed or burdens imposed in the ordinary exer
cise of the police power."
The contract relied on in Hardin-Wyandot Lighting Co. v. Upper
Sandusky3 was the statute in force in 1889 when the company's
1 For the previous installments reviewing cases on Miscellaneous Federal
Powers, Regulation of Commerce, Taxation, Police Power and Eminent
Domain, see 19 M1ch. L. Rev. 1-24, 117-151 *(November and December, 192o).
9252 U. S. 1oo, 4o Sup. Ct. 3o6 (192o), 19 M1ch. L. Rev. 138.
"252 U. S. 173, 4o Sup. Ct. 1o4 (1919), 19 M1ch. L. Rev. 139.
284
MICHIGAN LAW REVIEW
franchise was granted and accepted. This declared that the "mode"
of use of the streets "shall be such as shall be agreed upon between
the municipal authorities of the . . . village and the company, but
if they cannot agree, the probate court of the county shall direct
what the mode of use shall be." In 1896 the state law was amended
so that it forbade the construction or maintenance of wires, fixtures
and appliances for conducting electricity without the consent of the
municipality. In 1913 the company took down certain poles and
wires used for lighting the streets. The Supreme Court held that
it could not restore these or erect new additional ones without
obtaining the consent of the city; but it interpreted the injunction
granted below as not applying to the repair and replacing of poles
and wires which had been continuously used for commercial light
ing and affirmed the judgment of the state court with the qualifica
tion, "restrained to the scope of its opinion, as we have interpreted
it." The case thus rests on the abandonment by the company of
its rights under the ordinance of 1889 in its poles and wires used
for street lighting. The statute of 1896, requiring the consent of
the city, is sustained as a reasonable exercise of the police power;
such modification of the company's rights as it may suffer from
the decree of the state court is said "not to constitute an impairing
of the obligation of its contract with the state or village." In Pacific
Gas & Electric Co. v. Police Court* the only contract right adduced
against a municipal command to sprinkle the streets was the general
authority conferred by the franchise to operate a road in the streets ;
but the ordinance was found to be within the police power, and the
police power was said to dominate the right of the company under
its franchise to use the streets.
In two cases the contracts unsuccessfully relied on were with pri
vate persons rather than with some public authority. Munday v.
Wisconsin Trust Co.9 sustained the state court in holding a deed
invalid because the grantee was a foreign corporation which had
failed to file the requisite papers with the state in which the land
lay. As the obstructing statute was in force before the transaction
in question, the court reminded the aggrieved litigant that "the
settled doctrine is that the contract clause applies only to legislation
4 251 U. S. 22, 4o Sup. Ct. 79 (1919), 19 M1ch. L. Rev. 139.
8252 U. S. 499. 4o Sup. Ct. 365 (192o), 19 M1ch. L. Rev. 144
285
subsequent in time to the contract alleged to have been impaired."

Before the suit began the grantee had obtained a license to do busi
ness and hold property within the state, but the state court had
held that this did not validate prior invalid transactions. This was
said by the Supreme Court to be wholly a matter of state law and
to involve no right under the Constitution or laws of the United
States.
In Producers' Transportation Co. v. Railroad Commission* the
plaintiff had previously fixed its rates by private contract and now
insisted that it was not a common carrier; but the court disagreed
with it and allowed the state railroad commission to take it in hand.
Mr. Justice Van Devanter reiterated the well-settled rule that "a
common carrier cannot, by making contracts for future transporta
tion or by mortgaging its property or pledging its income, prevent
or postpone the exertion by the state of the power to regulate the
carrier's rates and practices." To make the matter certain, he added :
"Nor does the contract clause of the Constitution impose any obstacle
to the assertion of that power."
In three cases the contract clause was grasped not as a mere
makeweight but as the only hope against legislation concededly
within the general police power. In Bank of Oxford v. Love7 it
was recognized that the charter of a bank was a contract, but the
provision that the business shall be controlled by the stockholders
under such rules and regulations as the company may see fit to
adopt was held not to confer any immunity from a statute requiring
periodic examination by the state banking department and the impo
sition of moderate fees for the maintenance of the scrutinizing
agency.
In Piedmont Power & Light Co. v. Graham* the plaintiff attempted
unsuccessfully to spell out an exclusive franchise from a provision
in its charter that the town "warrants that it will, by its proper
authorities, provide for the full and free use of its streets, lanes,''
etc. Mr. Justice Clarke called the contention "fatuous and futile,"
and declared that "grants of rights and privileges by a state or
municipality are strictly construed and whatever is not unequivo251 U. S. 228, 4o Sup. Ct. 131 (192o), 19 M1ch. L. Rev. 137.
T2So U. S. 6o3, 4o Sup. Ct. 22 (1919).
'253 U. S. 193, 4o Sup. Ct. 453 (192o).
a86
MICHIGAN LAW REVIEW
cally granted is withheld; nothing passes by implication." The

alleged federal question was found so frivolous that the appeal
from the court below was dismissed for want of jurisdiction.
A similar summary disposition was given to the appeal in Cuya
hoga River Power Co. v. Northern Ohio T. & L. Co.* A waterpower company which had been granted the right of eminent domain
was told that it acquired no exclusive right to any particular lands
by filing with its articles of incorporation a plan specifying the
places where it planned to erect dams. "The contention of plain
tiff," observes Mr. Justice McKenna, "is certainly a bold one, and
seemingly erects into a legal principle that unexecuted intention, or
partly executed intention, has the same effect as executed intention,
and that the declaration of an enterprise gives the same right as its
consummation." The acts of a competing company of which ihe
frustrated plaintiff complained were held not acts that might be
attributed to the state as an impairment of plaintiff's contract. No
wrong was done the plaintiff by incorporating other power com
panies under the same general law or by sanctioning the transfer
of the rights and franchises of a corporation older than itself to one
younger.
The contract clause was one of the supports picked out by the
successful lighting company in Los Angeles v. Los Angeles Gas &
Electric Corp oration, 10 and figured at least indirectly in the decision.
The case held that the city could not compel the company to remove
poles and wires to make room for a competing municipal system.
Since the attempt was not a valid police measure and was unaccom
panied by any proffer of compensation, it was held to be inhibited
by the Fourteenth Amendment. But the property rights thus
wrongfully threatened seem to be regarded as not confined to prop
erty acquired for the purpose of exercising the powers conferred
by the franchise, but to embrace also property rights in the fran
chise itself. To quote Mr. Justice McKenna :
"A franchise conveys rights, and if their exercise could
be prevented or destroyed by a simple declaration of a muni
cipal council, they would be infirm indeed in tenure and
252 U. S. 388, 4o Sup. Ct. 4o4 (192o).
"251 U. S. 32, 4o Sup. Ct. 76 (1919), 19 M1ch. L. Rev. 139. Justices
Pitney and Clarke dissent.
287
substance. It is to be remembered that they came into exist

ence by compact, having, therefore, its sanction, urged by
reciprocal benefits, and are attended and can only be exer
cised by expenditure of money, making them a matter of
investments and property, and entitled as such against being
taken without the proper process of lawthe payment of
compensation."
The distinction between a breach of contract and an impairment
of its obligation finds illustration in Hays v. Port of Seattle,11
already considered in the section on eminent domain. Back in 1896
the plaintiff made a contract with the state for excavating part of
Seattle harbor, the state engaging "to hold the lands subject to the
operation of the contract pending its execution, and subject to the
ultimate lien of the contractor thereon." After long delay and dis
agreement as to plans, the state in 191 3 turned the property over to
the Port of Seattle, which proceeded to go ahead with the excava
tion on its own account. This was held to be nothing but a possible
breach by the state of its contract with the plaintiff, Mr. Justice
Pitney observing:
"Supposing the contract had not been abandoned by com
plainant himself or terminated by his long delay, its obliga
tion remained as before, and formed the measure of his right
to recover from the state for the damages sustained."
As the state by general law provided ample opportunity to sue and
to collect a judgment against it, and the infliction on the plaintiff,
if any, was for a recognized public purpose, an injunction was
denied and the plaintiff left to his action for damages.
Two of the tax cases already treated dealt also with objections
to retroactive legislation. The plaintiff in Oklahoma Ry. Co. v.
Severns Paving Co}2 was told that its charter obligation to pave a
portion of its right of way implied no agreement on the part of the
city that prevented a special assessment on the railroad right of
way to defray part of the expense of paving the main portion of
"251 U. S. 233, 4o Sup. Ct. 125 (192o), 19 M1ch. L. Rev. 149.
"251 U. S. 1o4, 4 Sup. Ct. 73 (1919). 19 M1ch. L. Rev. 129.
288
MICHIGAN LAW REVIEW
the street. Ward v. Love County13 reiterated the point established

earlier1* that a tax exemption of Indian lands granted by Congress
was a property right which could not, consistently with due process
of law, be taken away by withdrawal of the exemption. This was
not directly in issue in the principal case, as the dispute was over
the question whether the taxes which the Indians sought to get
back had been paid voluntarily. Another case in which a tax exemp
tion, concededly contractual, was held to cover the particular prop
erty in question is Central of Georgia Ry. Co. v. Wright. This was
a rehearing of a portion of a case10 decided the preceding term.
The opinion is merely a postscript to its predecessor and cannot be
understood independently.17
VII. Immun1t1es of Persons Charged w1th Cr1me
The unanimity with which the Supreme Court sustained convic
tions under the Espionage Law in 1918-1919 is broken in upon in
1919-192o. The minority judges, however, do not fully indicate
how much of their dissent is based on the First Amendment and
how much goes only to the propriety of the convictions under the
terms of the statute and the general canons of criminal law. The
"253 U. S. 17, 4 Sup. Ct. 419 (192o), 19 M1ch. L. Rev. 133. To tlv:
same effect is Broadwell v. Carter County, 253 U. S. 25, 4o Sup. Ct. 422 (192o).
"Choate v. Trapp, 224 U. S. 665, 32 Sup. Ct. 565 (1912).
" 25o U. S. 519, 4o Sup. Ct. 1 (1919).
" Central of Georgia Ry. Co. v. Wright, 248 U. S. 525, 39 Sup. Ct. 181
(1919), 14 Am. Pot. Sc1. Rev. 63.
"For notes on Union Dry Goods Co. v. Georgia, 248 U. S. 372, 39 Sup.
Ct. 117 (1919), 14 Am. Pol. Sc1. Rev. 61, holding that a public utility can not
by contract with its patrons defeat the power of rate regulation, and Columbus
Ry. Power & Light Co. v. Columbus, 249 U. S. 399. 39 Sup. Ct. 349 (1919)13 Am. Pol. Sc1. Rev. 632, holding that a company cannot escape from a
clause in its franchise restricting the fare to be charged, notwithstanding the
increase of operating costs incident to conditions produced by the war, see
33 Habv. L. Rev. 97, 116. The latter case is considered in 18 M1ch. L. Rev.
32o. For discussions of the power to fix rates by contract in the grant of a
franchise and the power of state authorities to permit an increase of
rates as against a contract between the company and a city, and other
phases of the same general problem, see Charles K. Burdick, "Regulating
Franchise Rates," 29 Yale L. J. 589, N. C. Collier, "Change of Rates of Public
Utility Which Have Been Fixed by Franchise Ordinance," 9o Cent. L. J.
42, Clarence Dallam, "The Public Utility and the Public Highway," 6 Va.
-
.289
offense in the cases was committed by publishing or distributing

literature that contained unflattering remarks about the motives and
justifications for American participation in the war or that covertly
or directly encouraged or advised restraint from actions that would
aid in its prosecution. In Abrams v. United States it was laid
down by Mr. Justice Clarke for the majority that the only question
before the court was whether "there was some evidence, competent
and substantial, before the jury, fairly tending to sustain the ver
dict." There was denunciation of the President as vehement as any
in a journal devotedly dedicated to uncomplimentary shafts in that
direction. The court, however, refrained from passing on the pro
priety of the convictions on the counts charging "disloyal, scurril
ous and abusive language about the form of government of the
United States," or language "intended to bring that government
into contempt, scorn, contumely, and disrepute." Mr. Justice Clarke
remarked that "a technical distinction may perhaps be taken between
L. Rev. 35, Godfrey Goldmark, "The Struggle for Higher Public Utility
Rates Because of War-time Costs," 5 Cornell L. Q. 227, A. Raymond San
born, "The Power of the Public Utilities Commissions to Alter Rates," 13
Ma1ne L. Rev. 1, and editorial notes in 2o Colum. L. Rev. 7o4, 5 Iowa L. B.
265, 18 M1ch. L. Rev. 8o6, 4 M1nn. L. Rev. 526, 68 U. Pa. L. Rev. 28o, and 26
W. Va. L. Q. 67.
For a discussion of United Railroads v. San Francisco, 249 U. S. 517, 39
Sup. Ct. 361 (1919), 14 Am. Pol. Sc1. Rev. 6o, holding that a statute forbid
ding two railroads to occupy the same street does not enter into a franchise as
a promise on the part of the municipal grantor not to compete with the
grantee, see 33 Harv. L. Rev. 576, 614. The effect on a contract with a city
for reduced fares for workmen of a statute prohibiting discrimination is con
sidered in 29 Yale L. J. 563. The retroactive effect of soldiers' and sailors'
relief acts is discussed in 4 M1nn. L. Rev. 353; the amendment of statutes of
limitation, in 29 Yale L. J. 91 ; and the retroactive taking away of .1 right of
action for wrongful death in another state, in 33 Harv. L. Rev. 727.
"25o U. S. 616, 4o Sup. Ct. 17 (1919). See Zechariah Chafee, Jr., Free
dom op Speech (New York, Harcourt, Brace and Howe, 192o), Chapter 3, "A
Contemporary State Trial", 33 Harv. L. Rev. 747, Edward S. Corwin, "Free
dom of Speech and Press Under the First Amendment", 3o Yale L. J. 48,
"Constitutional Law in 1919-192o, 14 Am. Pol. Sc1. Rev. 635, at pp. 655-658,
M. G. Wallace, "Constitutionality of Sedition Laws", 6 Va. L. Rev. 385, John
H. Wigmore, "Abrams v. United States : Freedom of Speech and Freedom of
Thuggery in War-time and Peace-time", 14 IIl. L. Rev. 539, and notes in 2o
Colum. L. Rev. 9o, 33 Harv. L. Rev. 442, 474, 14, IIl. L. Rev. 6o1, 18 M1ch.
L. Rev. 236, 5 Va. L. Reg. n. s. 715. 29 Yale L. J. 337, and 3o Yale L. J. 68.
290
MICHIGAN LAW REVIEW
disloyal and abusive language applied to the form of our govern

ment or language intended to bring the form of our government
into contempt and disrepute, and language of like character and
intended to produce like results directed against the President and
Congress, the agencies through which that form of government must
function in time of war." But he did not press the point, as he
found the language fully sufficient to warrant conviction on the
counts charging utterances intended to provoke resistance to the
United States in time of war and advocating the curtailment of pro
duction of ordnance and munitions necessary and essential to the
prosecution of the war. This was enough to sustain the sentences,
as they did not exceed those that might be imposed for conviction
on these counts alone. Among the exhortations of the defendants
were the following:
"Yes, friends, there is only one enemy of the workers of
the world, and that is CAPITALISM. . . .
With the money which you have loaned or are going to
loan them they will make bullets not only for the Germans
but also for the Workers' Soviets of Russia. Workers in
the ammunition factories, you are producing bullets, bayonets,
cannon, to murder not only the Germans but also your dear
est, best, who are in Russia and are fighting for freedom. . . .
Workers, our reply to the barbaric intervention has to be
a general strike.
Do not let the government scare you with their wild pun
ishment in prisons, hanging and shooting. We must not and
will not betray the splendid fighters of Russia. Workers, up
to fight.
Know, you lovers of freedom, that in order to save the
Russian revolution we must keep the armies of the allied
countries busy at home.
We, the toilers of America, who believe in real liberty,
shall pledge ourselves, in case the United States will partici
pate in that bloody conspiracy against Russia, to create so
great a disturbance that the autocrats of America shall be
compelled to keep their armies at home, and not be able to
spare any for Russia."

For the majority Mr. Justice Clarke declared that "while the imme
diate occasion for this particular outbreak of lawlessness, on the
part of the defendant alien anarchists, may have been resentment
caused by our government sending troops into Russia as a strategic
operation against the Germans on the eastern battle front, yet the
plain purpose of their propaganda was to excite, at the supreme
crisis of the war, disaffection, sedition, riots, and, as they hoped,
revolution in this country for the purpose of embar rasing and if
possible defeating the military plans of the government in Europe."
He had earlier laid down that "it will not do to say . . . that the
only intent of these defendants was to prevent injury to the Rus
sian cause," for "men must be held to have intended, and to be
accountable for, the effects which their acts were likely to produce."
The dissenting opinion of Mr. Justice Holmes is difficult to deal
with from the standpoint of constitutional law, as it does not make
clear how much it is based on the Constitution. The learned Justice
conceded that defendants urged curtailment in the production of
things necessary to the prosecution of the war, and that one of the
leaflets if published for this purpose might be punishable. He rec
ognized also that "intent" is at common law satisfied by knowledge
of facts from which common experience shows that the consequences
would follow. He adheres to his previously expressed conviction
that "the United States constitutionally may punish speech that pro
duces or is intended to produce a clear and imminent danger that
it will bring about forthwith certain substantive evils that the United
States constitutionally may seek to prevent." This recognizes that
speech which produces such danger is punishable even though the
danger is not intended in the strict sense of the word. But Mr.
Justice Holmes finds the danger lacking in the present case, for he
says :
"Now nobody can suppose that the surreptitious publish
ing of a silly leaflet by an unknown man, without more, would
present any immediate danger that its opinions would hinder
the success of the government arms or have any appreciable
tendency to do so."
This seems to be the nub of the dissent so far as it goes on consti
tutional grounds. The majority allow the jury to infer sufficient
danger from the circumstances. The minority think the inference
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unjustified because of the silliness of the leaflet and the unimpor

tance of its authors. To them the circumstances do not as a mere
matter of inference show that degree of danger which is necessary
before freedom of speech can be curtailed consistently with the
First Amendment. The opinion at this point is plainly concerned
with the constitutional issue, for it follows the introduction :
"The power undoubtedly is greater in time of war than
in time of peace, because war opens dangers that do not
exist at other times.
But as against dangers peculiar to war. as against others,
the principle of the right of free speech is always the same.
It is only the present danger of immediate evil or an intent
to bring it about that warrants Congress in setting a limit
to the expression of opinion where private rights are not con
cerned. Congress certainly cannot forbid all effort to change
the mind of the country."
On the question of the interpretation of the statute the dissenting
opinion takes the position that "encouraging resistance" is not satis
fied by encouraging abstinence from assistance, and that "intent"
must be construed in the strict and accurate sense and not as vaguely
used in ordinary legal discussion. The inference from the opinion
is that the First Amendment requires either intent in the sense of
aim, motive, or object, or else a clearer, nearer danger from the
words used than could be thought by a reasonable man to be present
in the principal case. There is also the suggestion that the First
Amendment limits the degree of punishment for speech conccdedly
punishable, though it may be that Mr. Justice Holmes has the dueprocess clause of the Fifth Amendment in mind when he says:
"In this case sentences of twenty years' imprisonment
have been imposed for the publishing of two leaflets that I
believe the defendants had as much right to publish as the
Government has to publish the Constitution of the United
States now vainly invoked by them. Even if I am technically
wrong and enough can be squeezed from these poor and puny
anonymities to turn the' color of legal litmus paper; I will
add, even if what I think the necessary intent were shown;
the most nominal punishment seems to me all that could pos
*93
sibly be inflicted, unless the defendants are to be made to

suffer not for what the indictment alleges but for the creed
that they avowa creed that I believe to be the creed of
ignorance and immaturity when honestly held, as I see no
reason to doubt that it was held here, but which, although
made the subject of examination at the trial, no one has a
right even to consider in dealing with charges before this
Court."
The concluding clause may refer to Mr. Justice Clarke's remark
on "this particular outbreak of lawlessness, on the part of the
defendant alien anarchists." That the difference of opinion among
the judges goes back to a difference in fundamental faiths as to
what is most important in the process of government is evident
from the concluding paragraph of the dissenting opinion. Mr. Jus
tice Holmes reveals not a little of what constitutional interpretation
owes to the fundamental faiths of the judges when he says:
"Persecution for the expression of opinions seems to me
perfectly logical. If you have no doubt of your premiser or
your power and want a certain result with all your heart,
you naturally express your wishes in law and sweep away
all opposition. To allow opposition by speeeh seems to indi
cate that you think the speech impotent, as when a man says
that he has squared the circle, or that you do not care whole
heartedly for the result, or that you doubt either your power
or your premises. But when men have realized that time
has upset many fighting faiths, they may come to believe
even more than they believe the very foundations of their
own conduct that the ultimate good desired is better reached
by free trade in ideasthat the best test of truth is the power
of the thought to get itself accepted in the competition of
the market, and that truth is the only ground upon which
their wishes safely can be carried out. That at any rate is
the theory of our Constitution. It is an experiment, as all
life is an experiment. Every year, if not every day, we
have to wager our salvation upon some prophecy based upon
imperfect knowledge. While that experiment is part of our
system, I think that we should be eternally vigilant against
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attempts to check the expression of opinions that we loathe
and believe to be fraught with death, unless they so immi
nently threaten immediate interference with the lawful and
pressing purposes of the law that an immediate check is
required to save the country. I wholly disagree with the
argument of the Government that the First Amendment left
the common law as to seditious libel in force. History seems
to me against the notion. I had conceived that the United
States through many years had shown its repentance for the
Sedition Act of 1798 (Act July 14, 1798, c. 73, 1 Stat. 596)
by repaying fines that it imposed. Only the emergency that
makes it immediately dangerous to leave the correction of
evil counsels to time warrants making any exception to the
sweeping command, 'Congress shall make no law abridging the
freedom of speech.' Of course, I am speaking only of expres
sions of opinion and exhortations, which were all that were
uttered here, but I regret that I cannot put into more impres
sive words my belief that in their conviction upon this indict
ment the defendants were deprived of their rights under the
Constitution of the United States."
Mr. Justice Brandeis, who joined in this dissent, wrote the dis
senting opinion in Pierce v. United States,10 in which Mr. Justice
Holmes was again of the minority. This opinion is largely con
cerned with maintaining that the pamphlet distributed by the defend
ants did not contain false statements within the meaning of the
statute. In insisting that the question of the truth or falsity should
not have been left to the jury, Mr. Justice Brandeis observed :
"To hold that a jury may make punishable statements of
conclusions or of opinion, like those here involved, by declar
ing them to be statements of facts and to be false would
practically deny members of small political parties freedom
of discussion in times when feelings run high and the ques
tions involved are deemed fundamental."
On the constitutional issue, the dissenting opinion relied on the
conviction that the nature of the leaflet and the circumstances of
"251 U. S. 2o5, 4o Sup. Ct. 239 (192o).
295
its distribution were not such as to create any clear and present
danger of harmful results. It refers to the note of despair in the
offending tract, with its recognition of the hopelessness of protest
under the existing system and the irresistible military might of the
government, and says that "it is not conceivable that any man of
ordinary intelligence and normal judgment would be induced"
thereby to commit offense and run the risk of the penalties. Mr.
Justice Brandeis closes by saying:
"The fundamental right of free men to strive for better
conditions through new legislation and new institutions will
not be preserved if efforts to secure it by argument to fellow
citizens may be construed as criminal incitement to disobey
the existing lawmerely because the argument presented
seems to those exercising judicial power to be unfair in its
portrayal of existing evils, mistaken in its assumptions,
unsound in reasoning and intemperate in language. No
objections more serious than these can, in my opinion, rea
sonably be made to the arguments presented in 'The Price
We Pay.' "
Here, as in the Abrams case, the majority took the position that
whether the printed words would in fact produce as a proximate
result the substantive evils which concededly Congress may strive
to prevent "is a question for the jury to decide in view of all the
circumstances of. the time and considering the place and manner
of distribution." Intent under the statute and under the Consti
tution is something that the jury may infer from probable conse
quences. The words that can be punished are those that have a
sufficiently dangerous tendency.
This is reiterated by Mr. Justice McKenna in the majority opinion
in Schaefer v. United States,20 in which the defendants were con
victed of publishing false statements with the intent of promoting
the success of the enemies of the United States. The gist of the
offending articles was that the motives of Great Britain in entering
the war were not so disinterested as they might have been, and that
the United States was bluffing and would never send an effective
"251 U. S. 466. 4o Sup. Ct. 259 (192o). See 29 Yale L,. J. 677.
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MICHIGAN LAW REVIEW
army to the front. Mr. Justice Brandeis in dissenting insisted that

"men, judging in calmness . . . could not reasonably have said that
this coarse and heavy humor immediately threatened the success
of recruiting." But Mr. Justice McKenna answered:
"Coarse, indeed, this was, and vulgar to us ; but it was
expected to produce, and it may be did produce, a different
effect upon its readers. To them its derisive contempt may
have been truly descriptive of American feebleness and
inability to combat Germany's prowess, and thereby chill
and check the ardency of patriotism and make it despair of
success, and in hopelessness relax energy both in preparation
and action. If it and the other articles . . . had not that
purpose, what purpose had they ? Were they the mere expres
sion of peevish discontent, aimless, vapid, and innocuous?
We cannot so conclude. We must take them at their word,
as the jury did, and ascribe to them a more active and sinister
purpose. They were the publications of a newspaper, delib
erately prepared, systematic, always of the same trend, more
specific in some instances, it may be, than in others. Their
effect, or the persons affected, could not be shown, nor was
it necessary. The tendency of the articles and their efficacy
were enough for the offensetheir 'intent' and 'attempt,'
for those are the words of the actand to have required
more would have made the law useless. It was passed in
precaution. The incidence of its violation might not be imme
diately seen, evil appearing only in disaster, the result of the
disloyalty engendered and the spirit of mutiny."
Mr. Justice Holmes joined in the dissent of Mr. Justice Brandeis;
and Mr. Justice Clarke this time opposed the majority, but not on
constitutional grounds. The disagreement between the judges on
the constitutional issue comes down to a question of degree as to
the extent to which the court will allow the jury to surmise as to
the probable effect of the objectionable language. In all the cases
which have come before the Supreme Court the defendants were
preaching a gospel which, if acted upon, would be a drag on the
prosecution of the war. It seems safe to sum up the constitutional
law made by the decisions by saying that the First Amendment

confers no immunity on such preaching even when confined to insin
uation and innuendo. Yet it would be easy to think of much advo
cacy which would in fact hamper the conduct of the war much
more grievously than any words of those now serving sentence, but
which would never be thought punishable if coming from those
whose heart is in the popular place. It might be that in dealing
with prosecutions under such circumstances Mr. Justice Holmes
would find more agreement with his emphasis on the stricter mean
ing of "intent." He suggests hypothetical cases where patriots,
thinking that we were wasting money on aeroplanes or making
more cannon of a certain kind than necessary, successfully advo
cated a curtailment of production which turned out to hinder the
prosecution of the war.21
Two more espionage cases may be disposed of briefly. In O'Connell v. United States22 the court was unanimous in sustaining the
Espionage Law and the Selective Service Law on the authority of
cases decided since the writ of error was sued out. The latter act
was held to cover obstruction by non-official as well as official per
sons. No question of freedom of speech was involved. Stilson v.
United States23 did not review the evidence in any detail and adds
nothing to the cases already considered. On one of the counts
the government did not press the conviction; Justice Holmes and
Justice Brandeis thought that as the sentence was upon a general
verdict of guilty on both counts, the judgment should be reversed,
but none of their colleagues agreed. The case also held that the
trial by an impartial jury guaranteed by the Sixth Amendment does
not include the privilege of peremptory challenges and that there
fore defendants tried jointly cannot complain that the peremptory
challenges are no more numerous than when one is tried alone.
" For general articles on freedom of speech, see Thomas F. Carroll,
"Freedom of Speech and the Press in the Federalist Period", 18 M1ch. L.
Rev. 615, Robert Ferrari, "Political Crime", 2o Colum. L. Rev. 3o8, Fred B.
Hart, "Power of Government over Speech and Press", 29 Yale L. J. 41o,
and Theodore Schroeder, "Political Crimes Defined", 18 M1ch. L. Rev. 3o.
Notes on various aspects of espionage and similar laws appear in 2o Colum.
L. Rev. 222, 483, 7oo, 18 M1ch. L. Rev. 167, 798, and 6 Va. L. Rev. 53.
"253 U. S. 142, 4 Sup.' Ct. 444 (192o).
"25o U. S. 583, 4o Sup. Ct. 28 (1919). See 29 Yale L. J. 363 for com
ment on the question of challenge involved in the case.
MICHIGAN LAW REVIEW

In Stroud v. United States3* there were contentions of double
jeopardy and self-incrimination. Mr. Stroud had been convicted
of murder, with a recommendation by the jury against capital pun
ishment, which under the statute was binding. He asked for a new
trial and got it, and this time was convicted of murder, with no
recommendation by the jury as to sentence. Under the statute he
was sentenced to death. The court found that the first conviction
as well as the second was of murder in the first degree and applied
the established rule that, since the defendant himself invoked the
action of the court which resulted in a second trial, he was not
thereby placed in second jeopardy within the meaning of the Con
stitution.25 Allegations that the jury which brought in the second
verdict was not an impartial one, as guaranteed by the Sixth Amend
ment, were based on the facts that some of the prospective jurors
were present at preliminary proceedings at which statements preju
dicial to the defendant were made and that the trial court refused
to transfer the case to another division of the district. Jurors from
the immediate vicinity were, however, excluded from the panel, and
Mr. Justice Day said that "matters of this sort are addressed to the
discretion of the trial judge, and we see nothing in the record to
amount to abuse of discretion such as would authorize an appellate
court to interfere with the judgment." The complaint of selfincrimination was founded on the refusal of the trial court to grant
. an application for a return to the defendant of letters written by
him in prison and turned over by the warden to the district attor
ney. The court answered that the letters were voluntarily written,
that no threat or coercion was used to obtain them, nor were they
seized without process, and that having come into the possession of
the prison officials "under established practice, reasonably designed
to promote the discipline of the institution * * * there was neither
testimony required of the accused, nor unreasonable search and
seizure in violation of his constitutional rights."
"251 U. S. 15, 4o Sup. Ct. 5o (1919). See 5 Va. L. Reg. n. J. 882, and
6 Va. L. Rev. 457. For a rehearing on the question of challenge under the
statute, see Stroud v. United States, 251 U. S. 38o, 4o Sup. Ct. 176 (192o).
"For discussions of double jeopardy, see 68 U. Pa. L. Rev. 7o, on former
conviction for robbery as a bar to prosecution for murder, and 6 Va. T.,. Rev.
372, on the same act as an offense against the state and a municipality.
299
A different result was reached in Silverthorne Lumber Co. v.

United States. Governmental officials raided the offices of a cor
poration after arresting its officers, took away papers without any
search warrant, photographed them, retained photographs and
copies after returning the originals by order of the court upon appli
cation by the defendants, framed a new indictment on the basis of
the knowledge thus gained, and then obtained a subpoena to pro
duce the originals. For refusing to obey the subpoena the corpora
tion and one of its officers were found guilty of contempt. The
Supreme Court held the subpoena unlawful as a violation of the
constitutional prohibition against unreasonable searches and seizures.
As Mr. Justice Holmes puts it:
"The proposition could not be presented more nakedly.
It is that, although of course its seizure was an outrage
which the Government now regrets, it may study the papers
before it returns them, copy them, and may then use the
knowledge that it has gained to call upon the owners in
more regular form to produce them; that the protection of
the Constitution covers the physical possession but not any
advantages that the Government can gain over the object of
its pursuit by doing the forbidden act."
It had already been held that papers so seized could not, after proper
objection, be laid directly before the grand jury. The idea that this
means only that two steps are required instead of one was said to
reduce the Fourth Amendment to a form of words. Mr. Justice
Holmes then continues:
"The essence of a provision forbidding the acquisition of
evidence in a certain way is that not merely evidence so
acquired shall not be used before the court, but that it shall
not be used at all. Of course, this does not mean that the facts
thus obtained become sacred and inaccessible. If knowledge
of them is gained from an independent source they may be
proved like any others, but the knowledge gained by the
"252 U. S. 385, 4o Sup. Ct. 182 (192o). See 8 Cal1f. L. Rev. 347, 2o
Col. L. Rev. 484, 33 Harv. L. Rev. 869, 4 M1nn. L. Rev. 447, 6 Va. L. Reg.
n. s. 223, and 29 Yale L. J. 553.
3o
MICHIGAN LAW REVIEW

Government's own wrong cannot be used by it in the way
proposed."
The protection of the decision was accorded to the corporation as

well as to the aggrieved individual. While corporations are not
privileged to refuse to produce self-incriminating books and papers,
as individuals are, under a judicial blending of the search-andseizure and self-incrimination clauses of the Fourth and Fifth
Amendments, "the rights of a corporation against unlawful search
and seizure are to be protected even if the same result might have
been achieved in another way." The case is rested on the Fourth
Amendment without any admixture of the Fifth with its privilege
against self-incrimination. Chief Justice White and Mr. Justice
Pitney dissented, but without opinion.2'
The clause of the Sixth Amendment entitling persons accused of
crime against the federal government to trial "by an impartial jury
of the state and district wherein the crime shall have been committed"
is involved in Gayon v. McCarthy, though the issue does not
appear to have been raised by the accused. Gayon while in New
York conspired with persons in Texas, and the acts of his fellow
conspirators in Texas were declared to establish the jurisdiction of
the federal district court in Texas to indict Gayon." This case and
another30 passed on procedural questions relating to removal of the
accused from one federal district to another. A third case31
involved similar questions of procedure in arrest for extradition
to a foreign country.32
"For discussions of self-incrimination, see A. M. Kidd, "The Right to
Take Finger-prints, Measurements and Photographs", 8 Cal1f. L. Rev. 25,
D. O. McGovney, "Self-Criminating and Self-Disgracing Testimony", 5 Iowa
L. Bull. 175, Roy Cleasey Merrick, "The Privilege Against Self-incrimina
tion as to Charges of Contempt", 14 IIl. L. Rev. 171, a note in 8 Cal1f. L.
Rev. 241 on powers exercised under the federal Trade Commission Act, and
a note in 14 IIl. L. Rev. 644 on self-incrimination under the National Prohi
bition Act.
"252 U. S. 171, 4o Sup. C1. 244 (192o).
" For question of venue for trial when blow is in one county and death
in another, see 2o Colum. L. Rev. 619, and 33 Harv. L. Rev. 843, 863.
"Stallings v. Splain, 253 U. S. 339, 4o Sup. Ct. 537 (192o).
Collins v. Miller, 252 U. S. 364, 4o Sup. Ct. 347 (192o).
"Caldwell v. Parker, 252 U. S. 376, 4o Sup. Ct. 388 (192o), held that a
301
VIII. Jur1sd1ct1on and Procedure of Courts

1. The Extent of Federal Judicial Power
An attempt by a citizen of New Jersey to sue that state in an
original proceeding in the Supreme Court of the United States was
readily frustrated in Duhne v. Neu< Jersey." The bill was brought
to enjoin the enforcement of the Eighteenth Amendment. The only
possible ground for starting such a proceeding in the Supreme
Court was that the suit was one in which a state is a party. But
the court pointed out through the Chief Justice that the third sec
tion of Article III, which describes the original jurisdiction of the
Supreme Court, "relates solely to the grounds of federal jurisdic
tion" conferred in the preceding section, "and hence solely deals
with cases in which the original jurisdiction of this court may be
resorted to in the exercise of the judicial power as previously
given." Since it is well settled that the federal judicial power does
not embrace a suit brought by a citizen against a state without its
consent, the contention of the plaintiff was said to come "to the
proposition that the clause relied upon provides for the exercise by
this court of original jurisdiction in a case where no federal judicial
power is conferred." Permission to file the bill was therefore refused.
Whether the action was one against the federal government, in so
far as it sought to enjoin federal officers, was not considered, inas
much as the action against those officers had no claim to be brought
originally in the Supreme Court, and the effort necessarily fell flat
soldier in the army charged with the murder of a civilian is within the juris
diction of state courts even in time of war, since the Articles of War do not
clearly make the jurisdiction of courts martial exclusive.
For discussions of the Court-martial system, see S. T. Ansell, "Military
Justice", 5 Cornell L. Q. 1, George Gleason Bogert, "Courts-Martial: Criti
cisms and Proposed Reform", 5 Cornell L. Q. 18, and Edmund M. Morgan,
"Court-Martial Jurisdiction over Non-Military Persons Under the Articles of
War", 4 M1nn. L. Rev. 79, and "The Existing Court-Martial System and the
Ansell Army Articles", 29 Yale L,. J. 52.
See 18 M1ch. L. Rev. 81o for discussion of question whether a criminal
statute is void for indefiniteness ; 33 Harv. L. Rev. 449, 473, for differing
penalties for men and women under equal protection of the laws; and 6 Va.
L. Rev. for imprisonment for non-payment of alimony.
"251 U. S. 311, 4o Sup. Ct. 154 (192o)- See 5 Va. L. Reg. n. *. 881, and
29 Yale L. J. 471-
3o2
MICHIGAN LAW REVIEW
when it was determined that the plaintiff could not hale the state
before that court.3*
An effort by the Secretary of the Treasury to resist proceedings
brought against him in the Supreme Court of the District of
Columbia, on the ground that the suit was one against the United
States, met with defeat in Houston v. Ormes.*3 The proceeding
was one by an attorney to establish an equitable lien for her fees in
a fund in the treasury of the United States appropriated to pay a
claim found by the Court of Claims to be due her client. The client
had been made a party and had appeared and unsuccessfully
defended. This was held to get rid of the objection <hat debts due
from the United States have no situs at the seat of government and
that therefore the decree against the secretary in favor of the attor
ney could not protect the government from subsequent suit by the
client. The federal statute forbidding the assignment of claims
against the government was put to one side as not standing in the
way of assignment by operation of law after the claim has been
allowed. This left only the question whether the suit to establish
a lien on the fund was a suit against the United States. As to this,
Mr. Justice Pitney said:
"But since the fund in question has been appropriated by
act of Congress for payment to a specified person in satis
faction of a finding of the Court of Claims, it is clear that
the officials of the Treasury are charged with the ministerial
duty to make payment on demand to the person designated.
It is settled that in such a case a suit brought by the person
entitled to the performance of the duty against the official
charged with its performance is not a suit against the gov
ernment."89
The extent of the admiralty jurisdiction was involved in two
cases already dealt with. In Peters v. Veasey," a longshoreman
14 See 4 M1nn L. Rev. 364 for a discussion of a provision in the Virginia
constitution held to be self-executing and to give the right to sue the state
and its subdivisions without further legislative action.
"252 U. S. 469, 4 Sup. Ct. 369 (192o).
"For consideration of other instances in which suit was resisted as one
against the United States, see 8 Cal1f. L. Rev. 342, 2o Colum. L. Rev. 217, 5
Cornell L. Q. 2o3, and 33 Harv. L. Rev. 322.
"251 U. S. 121, 4o Sup. Ct. 65 (1919)-
3o3
injured on a ship by falling through a hatchway, and in Knicker

bocker Ice Co. v. Stewart,36 a bargeman injured when doing unnamed
work said to be of a maritime nature, were held not entitled to the
remedies of state compensation laws. There appeared to be no
dispute in either case that the injury was within the admiralty juris
diction. The decision that Congress could not permit the applica
tion of state compensation laws has already been reviewed.30
The question whether a case is within the federal jurisdiction
because one arising under the Constitution of the United States
necessarily involves an interpretation of the clause of the Consti
tution relied on by the party who seeks to get into the federal courts.
The Supreme Court has develepod the practice of saying that it
has no jurisdiction to answer frivolous questions or questions already
completely disposed of. So it turns down preposterous objections
by dismissing them for want of jurisdiction. There is, of course,
only a formal difference between such procedure and the alternative
one of entertaining jurisdiction and holding the objection one worth
making but nevertheless ill-founded. Cases in which substantive
federal questions have actually been disposed of have been treated
together in this review, whether or not objection was raised to the
exercise of jurisdiction.
The question whether the suit arose under a law of the United
States was the issue in Pell v. McCabe.*0 This was a bill brought
in the district court to enjoin a suit for fraud against the petitioner
who in previous bankruptcy proceedings brought primarily against
others had been determined not to be a general partner and there
fore not subject to having his assets administered in the bankruptcy
proceedings. The later suit against him for fraud was held to be
quite independent of anything adjudicated in the bankruptcy pro
ceedings and therefore one properly within the jurisdiction of the
staje court and not to be enjoined by the federal court by reason of
its jurisdiction over bankruptcy matters. In First National Bank
v. Williams*1 however, a suit by a national bank against the comp
troller of the currency to enjoin alleged harassing actions on his
"253 U. S. 149, 4 Sup. Ct. 438 (192o).
" 19 M1ch. L. Rev. 13-14.
"25o U. S. 573. 4o Sup. Ct. 43 (1919)"252 U. S. 5o4, 4o Sup. Ct. 372 (192o).
34
MICHIGAN LAW REVIEW
part was held to be one in which the right to recover turns on the
construction and application of the National Banking Act, and
therefore one arising under that act, even though not expressly
authorized by it to be brought. It followed from this that under
another statute the comptroller might be sued in the district where
the bank is located.
In such cases as the foregoing it is often difficult to tell whether
the issue is constitutional or merely one of statutory construction.
When jurisdiction is entertained, the case is of course within the
federal judicial power. But jurisdiction may be denied solely for
want of statutory warrant for entertaining it. Sometimes the stat
utory limits are coterminous with the constitutional limits and
sometimes not. Clearly questions whether the judgment below is
a final one,42 whether the federal issue is raised in season,43 whether
a Ex parte Tiffany, 252 U. S. 32, 4o Sup. Ct. 239 (192o), held final an
order of the district court denying an application to require a receiver to
turn over property to a receiver appointed by a state court. United States v.
Thompson, 251 U. S. 4o7, 4o Sup Ct. 289 (192o), held a ruling sustaining a
motion to quash an indictment to be a "decision or judgment sustaining a
special plea in bar" so as to authorize the government to take a direct writ
of error from the district court to the Supreme Court under the Criminal
Appeals Act. The case held also that the Pennsylvania rule that a grand jury
may not, without leave of court, bring in a new bill on matters previously sub
mitted to another grand jury, is not the common law, as rightly perceived,
and therefore not the rule for federal courts. The federal rule is not statu
tory, but is the product of the federal court's superior conception of the
common law. The Pennsylvania rule is not adopted as the rule for federal
courts by section 722 of the Revised Statutes, for that applies only in the
absence of a federal rule on the subject. Collins v. Miller, 252 U. S. 364, 4o
Sup. Ct. 347 (192o), held a decision of the district court not final because it
disposed finally of only a part of the case. The Supreme Court raised of its
own motion the question of the lack of finality. It remarked obiter that the
construction of a treaty by the district court in a final decision is subject to
direct review by the Supreme Court. Oneida Navigation Corporation v. W.
&. S. Job & Co., 252 U. S. 521, 4o Sup. Ct. 357 (1o2o) held not final the dis
missal by the district court of a petition to bring in another defendant alleged
to be liable for a collision. Here again the Supreme Court raised the ques
tion of finality of its own motion. See 33 Harv. L. Rev. 1o76 for a note on
finality of decision for purposes of appeal.
"Godchaux Co. v. Estinople, 251 U. S. 179, 4 Sup. Ct. 116 (192o) held
it too late to raise a federal question for the first time on a petition for a re
hearing in the state supreme court, where that court does not actually enter

the suit involves the requisite amount to be brought in the federal
courts,44 and whether the complaint goes to the validity of some
authority exercised or only to some other right, title or interest
under the federal Constitution or laws,45 are questions solely of
statutory construction. No constitutional issue seems to be involved
in decisions dismissing a bill because the question raised has become
tain the petition and pass on the objection. Mergenthaler Linotype Co. v.
Davis, 251 U. S. 256, 4o Sup. Ct. 133 (192o), affirms the same point, and also
decides that the state decision was final. Hiawassee River Power Co. v.
Carolina-Tennessee Power Co., 252 U. S. 341, 4o Sup. Ct. 331 (192o), holds
the federal question presented too late when first raised on petition for writ
of error filed in the federal Supreme Court. Objection was seasonably raised
to introducing in evidence a charter, but its reception in evidence was held to
violate no federal right.
"Chesbrough v. Northern Trust Co., 252 U. S. 83, 4o Sup. Ct. 237 (192o),
refused to order the district court to dismiss for want of jurisdiction an
action for tort in which the alleged damages exceeded the prescribed amount
and there was nothing to show that such a recovery was impossible or that
there was bad faith. Scott v. Frazier, 253 U. S. 243, 4o Sup .Ct 5o3 (192o),
ordered a bill dismissed for want of allegation that the amount in controversy
equals that required by the statute. See 33 Harv. L. Rev. 477 for a note on
good faith in alleging the amount in controversy.
"Mergenthaler Linotype Co. v. Davis, 251 U. S. 256, 4o Sup. Ct. 133
(192o), note 43, supra, held that the claim that a lease contract was an inter
state-commerce contract and therefore not subject to state statutes does not
challenge the validity of the statute so as to justify a writ of error from the
state court, but at most asserts a right, title, or interest under the federal
Constitution which might be the basis for a writ of certiorari. Jett Bros. Co.
v. City of Carrollton, 252 U. S. I, 4o Sup Ct. 255 (192o), held that a com
plaint that petitioner's property was assessed at full value while other
property was assessed at thirty or forty per cent of its value does not ques
tion the validity of a statute or an authority exercised under it as against the
Constitution of the United States so as to warrant a writ of error. Mr.
Justice Day says that "the mere objection to an exercise of authority under a
statute whose validity is not attacked cannot be made the basis of a writ of
error to this court." This case repeats that it is too late to raise the federal
question on petition for a rehearing in the state court when that court does
not give it consideration. For an extensive note on the considerations deter
mining whether writ of error or certiorari is the proper device to bring a
case from the state court to the United States Supreme Court, see 33 Harv.
L. Rev. 1o2. The cases outlined in the present note and in the two preceding
do not exhaust the list of those in which the Supreme Court considered
similar issues during the past term, but are given merely to illustrate the
blunders that occur in matters of practice.
306
MICHIGAN LAW REVIEW
moot by the amendment of a statute,40 or allowing an alien enemy

to proceed as party plaintiff where adequate precautions are taken
against paying a judgment to him personally,47 or holding that a
soldier in the army charged with the murder of a civilian is within
the jurisdiction of a state court even in time of war, since the Arti
cles of War do not clearly make the jurisdiction of the courts mar
tial exclusive.48 The reports of the decisions of each term are
crowded with disputes on questions of federal practice. The igno
rance and/or the perversity of attorneys impose on the Supreme
Court an excess of unnecessary burden. The burden appears not
only in the cases in which opinions are written but still more in the
many instances in which decisions are disposed of in a memoran
dum. Cases of this latter character are not included in this review.
Needless to say, they frequently represent the determination of a
constitutional question. If the question is not regarded by the
Supreme Court as one worth discussing, the reviewer may perhaps
be pardoned for emulating its example.49
"United States v. Alaska S. S. Co., 253 U. S. 113, 4o Sup. Ct 448 (192o).
*' Birge-Forbes Co. v. Heye, 251 U. S. 317, 4o Sup. Ct. 16o (192o).
"Caldwell v. Parker, 252 U. S. 376, 4o Sup. Ct. 388 (192o).
"For other discussions of the jurisdiction of the federal courts see
Armistead M. Dobie, "Jurisdiction of the United States District Court as
Affected by Assignment", 6 Va. L. Rev. 553, and notes in 33 Harv. L. Rev.
97o, o85, and 6 Va. L. Rev. 124.
Discussions of various aspects of the judicial interpretation of constitu
tional limitations will be found in George J. Danforth, "The Influence of the
Lawyer upon the Trend of Modern Legislation", 89 Cent. L. J. 392, W. F.
Dodd, "The Problem of State Constitutional Construction", 2o Colum. L.
Rev. 635, "Implied Powers and Implied Limitations in Constitutional Law",
29 Yale L. J. 137. W. L. Jenks, "Judicial System of Michigan Under the
Governor and Judges", 18 M1ch. L. Rev. 16; Shippen Lewis, "Revising the
Constitution of Pennsylvania", 68 U. Pa. L. Rev. 12o, Fred A. Maynard,
"Five to Four Decisions of the Supreme Court of the United States", 89
Cent. L. J. 2o6, William Renwick Riddell, "The Constitutions of the United
States and Canada", 4 M1nn. L. Rev. 165, and G. Sweetman Smith, "Judicial
Encroachment upon the Legislative Prerogative", 3 B1. Mon. L. Rev. 1.
The practice of foreign countries in respect to declaring laws unconsti
tutional is considered in 8 Cal1f. L. Rev. 91. In 5 Cornell L. Q. is a note on
the right of a legislature to validate an act previously declared invalid by
the courts. The duty of federal courts to follow the law of the state in cases
where jurisdiction is obtained' by diversity of citizenship is treated in 20
3o7
2. Requisites of Jurisdiction over Defendants

The question in Chipman v. Thomas B. Jeffrey Co.M was whether
a Wisconsin corporation formerly doing business in New York,
which had complied with the New York statute and designated a
New York agent on whom process against it might be served, is
subject to suit in New York on an extra-New-York cause of action
after it has ceased to do business in New York but before it has
revoked the designation of its New York agent. The case was
started in the New York court and removed to the federal district
court on motion of the defendant. In that court a motion was made
to have the service set aside for lack of jurisdiction over the so-called
person of the defendant. The district judge granted the motion
and his action was affirmed by the Supreme Court. But the reason
given was that the New York courts had said that "unless a foreign
corporation is engaged in business within the state, it is not brought
within the state by the presence of its agents." Of course the
validity of the service depended primarily upon the statute. If the
statute did not authorize service in the case in question there was
no constitutional issue. The Supreme Court, however, was careful
to guard against any inference that it would have approved of such
an exercise of jurisdiction had it been found warranted by the stat
ute. For Mr. Justice McKenna says that "in resting the case on
the New York decisions we do not wish to be understood that the
validity of such service as here involved would not be of federal
cognizance." Perhaps a hint of what the Supreme Court thinks
about the constitutional issue may be gathered from the comment
that the state court in sustaining service in a case in which the cor
poration was doing business within the state showed a conscious
solicitude of the necessity of making that the ground of its decision.5'
Colum. L. Rev. 612. The requirement that state courts must follow the
federal rule of burden of proof in cases under the federal Employers' Lia
bility Law is discussed in 33 Harv. L. Rev. 861.
8251 U. S. 373, 4o Sup. Ct. 172 (192o). See 2o Colum. L. Rev. 618, 33
Harv. L. Rev. 73o, and 29 Yale L. J. 554.
" For notes on jurisdiction over foreign corporations, see 2o Colum. L.
Rev. 2o5, 33 Harv. L. Rev. 114, 14 IIl. L. Rev. 653, and 29 Yale L. J. 567.
Jurisdiction for divorce or annulment of marriage is treated in 2o Colum.
L. Rev. 479, and 5 Cornell L. Q. 174; service of process on a person in the
MICHIGAN LAW REVIEW

J. Procedural Requirements
An interesting question touching the inherent powers of federal
courts and the restriction on those powers by the guarantee of trial
by jury contained in the Seventh Amendment arose in In re Peter
son.*2 Judge A. N. Hand of the district court appointed an auditor
in an action at law on a contract, instructed him to examine the
accounts of the parties, gave him power to take testimony and com
pel the attendance of witnesses, and ordered him to file a report
with the clerk with a view to simplifying the issues for the jury.
The auditor was to make no final determination and his report was to
be merely evidence to submit to the jury, which was to retain the
power of final determination of all issues of fact in the case. An
original petition was brought in the Supreme Court for writs of
mandamus and/or prohibition directed to Judge Hand to restrain
him from proceeding in this manner and to direct him to restore
the case to the calendar for trial in the usual way. Leave to file the
petition was granted;53 but, after hearing, the petition was denied.
The Seventh Amendment was held not to forbid changes in practice
or procedure or new methods of determining what facts are in issue.
The auditor's task of simplifying the issues was called a function
in essence the same as that of pleading. The proposed admission
of his report as evidence was likened to statutory provisions making
the findings of administrative commissions prima facie evidence.
As the jury was to be free to deal with this report as with any
other evidence and the parties were not restricted in the introduc
tion of other evidence, the constitutional right to trial by jury was
not impaired. It was recognized that the Seventh Amendment
would forbid a compulsory reference to the auditor with power to
determine any of the issues. As for the source of the power exer
cised by Judge Hand, the Supreme Court found it in the inherent
powers of courts to take action, not forbidden by statute or Con
stitution, that will aid them in the performance of their duties.
state on public duty, in 33 Harv. L. Rev. 721, 734. See also Emil W. Colombo,
"Service on Parties Fraudulently Brought Within the Jurisdiction", 3 Bl
Month. L. Rev. 23.
"253 U. S. 543, 4o Sup. Ct. 543 (192o). See Thomas W. Shelton, "A
Useful Procedural InnovationAuditors in Law Cases", 91 Cent. L. J. 59.
"In re Peterson,
U. S.
, 4o Sup. Ct. 178 (192o).
CONSTITUTIONAL LA W IN 1919-192o
309
This inherent power was said to be the same whether the court sits
in law or in equity. Owing to provisions in the federal statutes, a
discretion reserved by the trial judge as to apportioning the costs
of the enterprise was negatived and it was declared that the expense
must be borne by the losing party. Mr. Justice Brandeis wrote the
opinion of the court. Justices McKenna, Pitney and McReynolds
dissented, without opinion.
Several cases involved questions of procedure in the state courts.
Chicago, R. I. & P. R. Co. v. Cole*4 found it proper for a state to
provide that the defenses of contributory negligence and assump
tion of risk shall in all cases be a question of fact for the jury, since
those defenses might be abolished altogether. Mr. Justice Holmes
declared that a state may do away with the jury altogether, or modify
its constitution, the procedure before it, or the requirements of a
verdict, "as it may confer legislative and judicial powers upon a
commission not known to the common law." So, he continued, the
state may confer upon a jury larger powers than those that gener
ally prevail. The cases cited for a number of these propositions
were civil actions, but Mr. Justice Holmes does not include this
qualification in his recital. The actual decision is of course restricted
to civil actions and is limited by the concluding statement that "in
the present instance the plaintiff in error cannot complain that its
chance to prevail upon a certain ground is diminished when the
ground might have been altogether removed." It seemed to be con
ceded that the plaintiff's intestate had been guilty of what was con
tributory negligence at common law.90
Minor complaints met with short answers in two cases. In Gold
smith v. Prendergast Construction Co. Mr. Justice Day declared
brusquely: "We find no merit in the contention that a federal con
stitutional right was violated because of the refusal to transfer the
cause from the division of the Supreme Court of Missouri which
heard it to the court in banc." In Lee v. Central of Georgia Ry.
"251 U. S. 54, 4o Sup. Ct. 68 (1919). See 9o Cent. L. J. 167 and 5 Va.
L. Reg. n. s. 799.
" The question whether the acquisition of the privilege of voting entitles
women to sit on juries is considered in 9o Cent. L. J. 2o5 and 68 U. Pa. L.
Rev. 398. In 68 U. Pa. L. Rev. 369 is a note on the right to trial by jury in
will cases under the Pennsylvania constitution.
31o
MICHIGAN LAW REVIEW
Co.*1 a plaintiff suing in the state court under the federal Employ1
ers' Liability Law complained because the state practice did not
allow him to sue the company and the negligent engineer jointly
in a single count. Mr. Justice Brandeis told him that such questions
are normally matters of pleading and practice relating solely to the
form of remedy and therefore wholly questions of state law. Only
when they become matters of substance which affect a federal right,
as in the case of the burden of proof in actions under the Employ
ers' Liability Law,58 does the state decision become subject to fed
eral review.
Such questions as that involved in the preceding case might appro
priately be classified together under the head of substantive ele
ments in rights of action, and dealt with under the police power
rather than in the section on judicial procedure. Such a group of
cases would embrace also Canadian Northern Ry. Co. v. Eggen,
which sustained a Minnesota statute providing that "when a cause of
action has arisen outside of this state, and, by the laws of the place
where it arose, an action thereon is there barred by lapse of time,
no such action shall be maintained in this state unless the plaintiff
be a citizen of this state who has owned the cause of action ever
since it accrued." A North Dakota citizen injured in Canada was
barred from suing in Canada by the Canadian statute of limitations.
He brought his action in Minnesota within the time available for a
Minnesota citizen. He complained that the Minnesota statute which
barred him but did not bar citizens of Minnesota violated the pro
vision in the federal Constitution that "the citizens of each state
shall be entitled to all privileges and immunities of citizens in the
several states." The Circuit Court of Appeals agreed with him.
But the Supreme Court said that the provision does not guarantee
citizens of other states absolute equality with citizens of the state
whose action is questioned, and that the plaintiff had all that he
deserved if he had as long to sue in Minnesota as in the country
where he worked and got hurt. For a year he is on an equality with
"252 U. S. 1o9, 4o Sup. Ct. 254 (192o).
M See Central Vermont Railway Co. v. White, 238 U. S. 5o7, 35 Sup. Ct.
865 (1o15), and New Orleans & N. E. R. Co. v. Harris, 247 U. S. 367, 38
Sup. Ct. 535 (1918)"252 U. S. 553. 4o Sup. Ct. 4o2 (192o).
3H
citizens of Minnesota; if he does not avail himself of this equality

when he has it, he cannot complain that it does not continue longer,
when the restriction as to him is reasonable in itself. It may be
observed that Mr. Justice Clarke adduces no reasons why a distinc
tion should be made between citizens of Minnesota and those of her
sister states, as the court has done in the other cases when a dis
crimination has been sanctioned. The case, therefore, seems to stand
for a principle that if citizens of other states have treatment which
is fair intrinsically, and if they are in no way prejudiced by what is
allowed to citizens of the state whose favor they are seeking, they
cannot complain that a state is kinder to its own citizens than to
others.00
4. Faith and Credit to Proceedings of Sister States
An important question was settled in Kenny v. Supreme Lodge,91
in which Illinois was told that it could not refuse to allow suit in
its courts on a judgment obtained in a sister state, although the
original cause of action could not have been sued on in Illinois. The
Illinois statute provided that no action should be brought in that
state for damages occasioned by death in another state in conse
quence of wrongful action. The Illinois court construed this to
forbid suit in Illinois on an Alabama judgment for an Alabama
death, and sustained the statute as constitutional. But the Supreme
Court distinguished the earlier cases allowing a state to refuse suit
on a foreign judgment obtained by one foreign corporation against
another02 and on a judgment for a penalty for violation of the law
of a sister state,03 and held the case before it governed by an earlier
decision that Mississippi was bound to recognize a Missouri judg
ment on a Mississippi transaction that was void by the law of Miss**On the power of a state to close its courts to actions for wrongful
death in other jurisdictions, see 33 Harv. L. Rev. 727; on closing the courts
to suits between foreign corporations on a foreign cause of action, see 29
Yale L. J. 457"252 U. S. 411, 4o Sup. Ct. 371 (192o). See 29 Yale L. J. 812. For notes
on the contrary decision of the state court, see 2 IIl. L. Bull. 361 and 28
Yale L. J. 264.
" Anglo-American Provision Co. v. Davis Provision Co., 191 U. S. 373,
24 Sup. Ct. 92 (19o3).
"Wisconsin v. Pelican Insurance Co., 127 U. S. 265, 8 Sup. Ct. 137o
(1888).
MICHIGAN LAW REVIEW

issippi." Mr. Justice Holmes recognized that "there is truth in the
proposition that the Constitution does not require the state to fur
nish a court," but he declared that "it also is true that there are lim
its to the power of exclusion and to the power to consider the nature
of the cause of action before the foreign judgment based upon it is
given effect," and that "it is plain that a state cannot escape its
constitutional obligations by the simple device of denying jurisdic
tion in such cases to courts otherwise competent." An argument
that suit was foreclosed in Illinois because Alabama provided that
the action could be maintained in a court of competent jurisdiction
within the state "and not elsewhere" was dealt with by saying that
"when the cause of action is created the invalidity of attempts to
limit the jurisdiction of other states to enforce it has been estab
lished by the decisions of this court," and further that "had these
decisions been otherwise they would not have imported that a judg
ment rendered exactly as required by the Alabama statute was not
to have the respect due to other judgments of a sister state."
A question of res adjudicate was decided in Napa Valley Electric
Co. v. California,09 but as the case involved the credit to be given
to a state judgment in a federal court, it is not technically an appli
cation of the full-faith-and-credit clause. Yet the case is a prece
dent that would be followed when the second action is brought in
the court of a sister state. Constitutional questions are frequently
questions of common law which constitutional clauses make matters
of adjudication in the Supreme Court. The Constitution brings the
question before the Supreme Court, but does not direct how it shall
be decided. The quarrel in the instant case was whether the refusal
of the California Supreme Court to entertain an appeal from the
state railroad commission or to order the record to be certified by
the commission for review in the court was a final adjudication or
merely a refusal to adjudicate. In holding it to be the former, Mr.
Justice McKenna referred to the "common, and at times necessary,
practice of courts to determine upon the face of a pleading what
action should be taken upon it." It was for the state court to decide
what was proper practice under the statutewhether it might act
without having the record of the commission before it. The Cali" Fauntleroy v. Lum, 21o U. S. 23o, 28 Sup. Ct. 641 (19o8).
"251 U. S. 366, 4o Sup. Ct. 174 (192o).

fornia cases were thought to show that the state court regarded the
refusal of applications for certiorari to review the orders of the
commission as decisions that those orders are lawful. The refusal
in question was therefore held to be an exercise of judicial power,
and as the refusal was not appealed from, it was held a final judg
ment which precluded a reexamination of the same issues in a sub
sequent proceeding.89
IX. Adm1n1strat1ve Power and Procedure
Underlying all questions as to the propriety or the effect of admin
istrative action are the constitutional issues whether the delegation
of power to the administrative officer is within the restrictions set
by what is left of the principle of the separation of powers, whether
the general regulations or the specific findings of the administration
can be accepted as final, and whether the procedure indulged in by
the administration is proper. These questions are frequently inter
related. The finality of administrative adjudications may depend
upon whether they were reached by appropriate methods. The valid
ity of the regulation or order may depend upon the scope of the
power that may be delegated. The requisites of the procedure may
vary with the effect to be ascribed to the action taken. Summary
proceedings may be sanctioned where the action taken is necessarily
0* As the Supreme Court's decision of constitutional issues involving
questions of jurisdiction and of res adjudkata depends often upon its con
ception of the proper principles of conflict of laws, the following notes and
articles may be of interest to students of constitutional law: on domicil, 2o
Colum. L. Rev. 87, 33 Harv. L. Rev. 863, 18 M1ch. L. Rev. 331, 332; on law
governing question of capacity, 5 Cornell L. Q. 312, 33 Harv. L. Rev. 612,
726, and Ernest G. Lorenzen, "The Theory of Qualifications and the Conflict
of Laws", 2o Colum. L. Rev. 247; on jurisdiction for divorce and effect of
decree in other states, 2o Colum. L. Rev. 491, 617, 33 Harv. L. Rev. 729, 4
M1nn. L. Rev. 456, 29 Yale L. J. 119; on foreign judgments, 33 Harv. L. Rev.
984, 18 M1ch. L. Rev. 142, 4 M1nn. L. Rev. 546, Herbert F. Goodrich, "En
forcement of a Foreign Equitable Decree", 5 Iowa L. Bull. 23o, and Ernest
G. Lorenzen, "The Enforcement of American Judgments Abroad", 29 Yale
L. J. 188, 268; on injunction to restrain foreign proceedings, 33 Harv. L. Rev.
92; on service of process at request of a foreign court, 33 Harv. L. Rev.
978; on construction or enforcement of foreign statutes, 29 Yale L. J. 230,
329, 798; on proof of foreign law, 33 Harv. L. Rev. 315; on "renvoi", 29
Yale L. J. 214.
MICHIGAN LAW REVIEW

subject to judicial review, while more careful investigation is
required for determinations that may be conclusive. Above all, the
extent of possible delegation and the propriety of modes of action
vary with the nature of the interests with which the administration
is dealing. Wide delegation and drastic procedure may be proper
when the administration is running public business or dispensing
public bounty, but improper when it is directly interfering with indi
vidual liberty. Indeed, there are few, if any, general principles of
/^administrative law under our Constitution. Instead we have one
set of rules for police interferences and other sets of rules for
administrative action in the exercise of the powers of taxation or
of eminent domain, the conduct of public business or the bestowal
of public privileges.07
The cases involving administrative action in the fields of taxation
and of eminent domain have already been reviewed. The wide scope
allowed to administrative authorities in determining the area to be
subjected to a special assessment is illustrated by Branson v. Bush"
and Goldsmith v. Prendergast Construction Co." The hearing
afforded the taxpayer on the question of his proportion of benefit
was held adequate in Farncomb v. Denver but found doubtful in
Oklahoma Ry. Co. v. Se1'erns Paving Co.'1 Other questions as to
the relief open to taxpayers against alleged unconstitutional levies
" See John A. Fairlie, "Administrative Legislation", 2 IIl. L. Bull. 373,
and Frederick Green, "Separation of Governmental Powers", 2 IIl. L. Bull.
373, and 29 Yale L. J. 369. Questions of the delegation of power are con
sidered in 15 IIl. L. Rev. 1o8, 18 M1ch. L. Rev. 328, and 6 Va. L. Rev. 441.
Various phases of judicial control over administrative action are discussed
in 2o Colum. L. Rev. 97, 33 Harv. L. Rev. 462, 478, and 29 Yale L. J. 358,
361. Cases on the liability of officers are dealt with in 19 Colum. L. Rev.
418, 2o Colum. L. Rev. 94, 21o, 227, and 29 Yale L. J. 361. On the power of
equity over public elections, see 29 Yale L. J. 655 ; on eligibility of women for
public office, 33 Harv. L. Rev. 295 ; on effect of Nineteenth Amendment on
exclusion of women from juries, 8 Va. L. Rev. 589, on right of de jure officer
to salary after payment to de facto officer, 18 M1ch. L. Rev. 434 ; on expiration
of term of office, 29 Yale L. J. 118.
"251 U. S. 182, 4o Sup. Ct. 113 (1919), 19 M1ch. L. Rev. 127.
"252 U. S. 12, 4o Sup. Ct 273 (192o), 19 M1ch. L. Rev. 129.
"251 U. S. 1o4, 4o Sup. Ct. 73 (1919), 19 M1ch. L. Rev. 129.
315
are considered in Wallace v. Hines,1- Shaffer v. Carter/3 Ward v.

Love County,1* and Bradwell v. Carter County though these cases
relate only indirectly to administrative action. Administrative power
and procedure in taking property by eminent domain is considered
in Hays v. Port of Seattle1" and Bragg v. Weaver11 which show
that administrative officers may determine the necessity and expe
diency of the taking, that the taking may precede the determination
of compensation where adequate provision is made for getting
compensation later, and that the property owner is not entitled to a
hearing before the administration on the question of compensation
where the statute allows him to appeal from its award and get a
judicial hearing of the question of what is due him.
Administrative exercise of the police power was involved in a
number of the cases reviewed under that head, and under miscel
laneous federal powers and the regulation of commerce. In Penn
sylvania R. Co. v. Pennsylvania1* it was declared that a state cannot
give a public service commission power to do what the laws of the
United States forbid, whether its action' be called administrative
or judicial. Several of the cases dealing with public utilities show
that an administrative order is subject to all the judicial scrutiny
that would be visited on a direct legislative prescription. The
requirement that administrative action regulating rates must be so
exercised as to afford to the victim a fair opportunity to contest the
reasonableness of the rates before a judicial tribunal was passed
upon in St. Louis, I. M. & S. Ry. Co. v. Williams19 Ohio Valley
Water Co. v. Ben Avon Borough/0 Oklahoma Operating Co. v.
Love,*1 and Oklahoma Gin Co. v. Oklahoma.*2 The reasonableness
of rates prescribed by a commission was reviewed in Grosbcck v.
"253
"252
"253
"253
"251
"251
"25o
"251
"253
n2S2
"252
U.
U.
U.
U.
U.
U.
U.
U.
U.
U.
U.
S.
S.
S.
S.
S.
S.
S.
S.
S.
S.
S.
66, 4o Sup. Ct. 435 (192o), 19 M1ch. L. Rev. 3o, 121.

37, 4o Sup. Ct. 221 (192o), 19 M1ch. L. Rev. 124.
17, 4o Sup. Ct. 419 (192o), 19 M1ch. L. Rev. 133.
25, 4o Sup. Ct. 422 (192o), 19 M1ch. L. Rev. 133.
233, 4o Sup. Ct. 125 (192o), 19 M1ch. L. Rev. 149.
57, 4o Sup. Ct. 63 (1919), 19 M1ch. L. Rev. 149.
566, 4o Sup. Ct. 36 (1919), 19 M1ch. L. Rev. 27.
63, 4o Sup. Ct. 71 (1919), 19 M1ch. L. Rev. 141.
287, 4o Sup. Ct. 527 (192o), 19 M1ch. L. Rev. 142.
331, 4o Sup. Ct. 338 (192o), 19 M1ch. L. Rev. 143.
339. 4o Sup. Ct. 341 (192o), 19 M1ch. L. Rev. 143.
316
MICHIGAN LAW REVIEW
Duluth, S. S. & A. Ry. Co.*3 An industrial commission's award of

damages for permanent facial disfigurement was sustained in New
York Central Ry. Co. v. Bianc.** The jurisdiction and procedure of
the Federal Trade Commission was considered in Federal Trade
Commission v. Grate.85 The internal law of administration was
involved in Burnap v. United States,sc which dealt with the removal
of federal officers. In Houston v. Ormes*1 a suit against the Secre
tary of the Treasury was held not to be a suit against the United
States.88
While the federal government has no police power as such, it
often uses its recognized powers for police purposes. Indeed, the
term federal police power has now won recognition even from the
Supreme Court. Several administrative exercises of this so-called
federal police power were questioned in cases decided during the
past term. In United States v. Standard Brewery*9 which held
that the War Prohibition Act of 1918 applied only to intox1cating
liquors, it was laid down that contrary rulings of the internal rev
enue department could not alter the terms of the statute and make
conduct criminal which the statute does not. In Chicago, M. & St.
P. Ry. Co. v. McCoull-Dinsmore Co.90 it was declared that the ques
tion whether a stipulation in an interstate bill of lading violates the
federal statute against limiting liability for loss is a question of lav
"25o U. S. 6o7, 4o Sup. Ct. 38 (1919), 19 M1ch. L. Rev. 14o.
"25o U. S. 596, 4o Sup. Ct. 45 (1919), 19 M1ch. L. Rev 145.
"253 U. S. 421, 4o Sup. Ct. 572 (192o), 19 M1ch. L. Rev. 23, note 39.
"252 U. S. 469, 4o Sup. Ct. 369 (192o), supra, p. 3o2.
" For a note on Ball Engineering Co. v. J. G. White Co., 25o U. S. 45, 39
Sup. Ct. 393 (1919), on the subject of suits against the United States under
the Tucker Act, see 29 Yale L. J. 125. For other discussions of the liability
of a government for the acts of its officers, see 19 Comjm. L. Rev. 4o7, 5
Cornell L. Q. 78, 338, 33 Harv. L. Rev. 713, 735, 18 M1ch. L. Rev. 433, and
George DeForest Lord, "Admiralty Claims Against the Government", 19
Colum. L. Rev. 465. For comment on the tort liability of municipal corpora
tions see 2o Colum. L. Rev. 619, 62o, 5 Cornell L. Q. 9o, 18 M1ch. L. Rev.
7o8, 29 Yale L. J. 117, 911. The contractual powers and liabilities of munic
ipal corporations are treated in 2o Colum. L. Rev. 336, 349, and 29 Yale L. J.
364. On another phase of the law of municipal corporations, see Richard W.
Montague, "Law of Municipal Home Rule in Oregon", 8 Cal1f. L. Rev. 151.
"251 U. S. 21o, 4o Sup. Ct. 139 (192o).
"253 U. S. 97, 4o Sup. Ct. 5o4 (192o).
317
which the courts must decide for themselves, regardless of any

determination by the Interstate Commerce Commission that the
stipulation in question is reasonable.
The effect to be given to a reparation order of the Interstate Com
merce Commission was considered in Spiller v. Atchison, T. & S.
F. R. Co."1 The statute provided that the order of the commission
that reparation is due the shipper should be prima facte evidence in
actions brought by him against the carrier in courts. The carrier
based his objections to such weight being accorded to the commis
sion's findings on the ground that its procedure was unduly lax.
Its reception of hearsay evidence was overlooked, not on the ground
that it was entitled to accept such evidence, but for the reason that
the carrier had failed to object to its reception on the ground of
hearsay during the hearing before the commissioner. Yet the opin
ion hints that the commission has wide latitude in the matter of
evidence, especially when its findings are made only prima facie
evidence. It was explicitly declared that where the essential facts
found by the commission are based on substantial evidence, and
there has been no denial of the right to a fair hearing, its findings
and order will not be rejected because improper evidence was admit
ted or the best possible available evidence was not produced or
because a different conclusion might have been reached.
Two more important cases protected Chinamen from deportation
orders of immigration officials. Both involved Chinamen who had
previously been in the United States and were returning to the
United States after a temporary visit to China. White v. Ching
Fong9* involved an alien who was conceded by the administrative
authorities to have been previously in this country, but who was
ordered deported on the strength of an administrative finding that
his original entry was unlawful. A writ of habeas corpus was
awarded on the ground that under the statute a Chinese person
already in the United States is entitled to a judicial determination
of his right to remain and that this right is not lost by a temporary
visit to China. His situation upon his return is not that of one first
seeking to enter.
"253 U. S. 117, 4o Sup. Ct. 466 (192o).
"253 U. S. 9o, 4o Sup. Ct. 449 (192o).
MICHIGAN LAW REVIEW
Kwock Jan Fat v. White93 had to do with a claim to citizenship.

Here the petitioner while in this country and intending to visit
China filed an application as provided by law for a "preinvestigation of his claimed status as an American citizen." The investiga
tion resulted in an official determination that he was an American
citizen. During his absence in China anonymous communications
to the commissioner of immigration started a new investigation, and
upon his return he was denied entry. Objections to the hearing
accorded on this occasion included the facts that the examining
inspector submitted to the commissioner as evidence statements
reported to be made by unnamed persons, that a demand by the
petitioner for the names was refused, and that the examining inspec
tor failed to record in the testimony taken the fact that th" three
white persons of reputable character who testified to the petitioner's
American citizenship were confronted with him and recognized hin1
as the boy they had known in his youth. These allegations were
admitted by demurrer. While the court indicated disapproval of
the reception in evidence of unsworn statements by unnamed per
sons, it stated that in view of the declaration by the commissioner
that this report did not influence his decision, it might not say that
this "rendered the hearing so manifestly unfair as to require rever
sal, if there were nothing else objectionable in the record." But the
failure to record the fact that there was mutual recognition between
the petitioner and the three white witnesses was held enough to
entitle the petitioner to a writ of habeas corpus. While the decision
goes on the ground that the hearing did not fulfil the requirements
of the statute, it is likely that the court would hold, if necessary,
that a fair hearing on the question of citizenship is essential to due
process of law. Having found the administrative hearing unfair,
the Supreme Court ordered the district court to hear and determine
the question of citizenship on its merits, after the practice approved
in an earlier case.94 It would seem that under the Chin Fonq case,
just considered, the petitioner was also entitled to a judicial hearing
"253 U. S. 454, 4o Sup. Ct. 566 (192o).
"Chin How v. United States, 2o8 U. S. 8, 28 Sup. Ct. 2o1 (19o8). For
a discussion of this procedure see "Judicial Review of Administrative Action
in Immigration Proceedings", 32 Harv. L. Rev. 36o.
319
because he had concededly been a long-time resident prior to his

recent visit to China.
Plainly greater latitude is allowed administrative officers in action
which decides only whether individuals are entitled to the benefits
conferred by statutes. Thus, in United States v. Lane the court
accepted without question the finding of the land department that
work done by a prospector was not enough to entitle him to privi
leges open to those who have "opened or improved" a coal mine.
Mr. Justice McKenna said that, where there is discretion, the find
ing of the land department, though disputable, is impregnable to
mandamus. So, in Cameron v. United States it was held that the
findings of the Secretary of the Interior that a tract covered by a
mineral location is not mineral land, and that there had been no
sufficient discovery, are conclusive, in the absence of fraud or impo
sition. United States v.- Poland''7 held that where a land patent was
issued by land officers in violation of the statute the government is
entitled to have it canceled unless a successor of the patentee is a
bona fide purchaser. A patent was also canceled in United States
v. Southern Pacific Co.98 In this same group may be put National
Lead Co. v. United States,0" which accepted the interpretation of
the Treasury Department that the drawback allowed on exportation
of products from raw materials previously imported should, when
more than one product is derived from those materials, be appor
tioned according to the relative value of the respective products and
not according to their relative weight. This was an instance where
the administration had to fill in a gap in the statute. Though in
the particular case the court plainly thought the administrative
ruling right in itself, it often shows an inclination not to substitute
its opinion for that of the administration, particularly when the
complainant is in the position of looking a gift horse in the mouth.
Several cases involved administrative determinations in the course
of carryipg on government business. Grand Trunk Western Ry.
"25o U.
"252 U.
"251 U.
"251 U.
"252 U.
S. 549, 4o Sup. Ct. 33 (1919).

S. 45o, 4o Sup. Ct. 41o (192o).
S. 221, 4o Sup. Ct. 127 (192o).
S. 1, 4o Sup. Ct. 47 (1919). See 2o Cowjm. L. Rev. 228.
S. 14o, 4o Sup. Ct. 237 (192o).
32o
MICHIGAN LAW REVIEW
Co. v. United States100 refused to give weight to a long-continued

administrative construction that a certain statute relating to over
payments for carrying the mails does not apply to a certain railroad,
where this construction was due to a mistake of fact as to whether
the road in question was in the class of the land-aided roads. In
Kansas City So. Ry. Co. v. United States101 it was held that the fail
ure of the Postmaster General to fine companies for less than twentyfour hours' delay in delivery of the mails is not to be taken as an
administrative construction that the statute empowered him to
impose fines only when the delay exceeds twenty-four hours. hrcw
York; N. H. & H. R. Co. v. United States102 accepted the adminis
trative practice of weighing the mails only once in four years, as
warranted by the letter of the statute. The Mail Divisor Cases10*
held railroads bound by the average weight of mails determined by
the administration. Only four of the judges thought that the
method employed was warranted by the statute, but two others held
the statute directory only and not mandatory, and thought that, since
the Postmaster General had discretion as to the rate of pay and
as the companies had carried the mails on his terms when they were
not by law obliged to, they were bound by the conditions under
which they undertook the service. In Eastern Extension, Austral
asia & China Tel. Co. v. United States10* and E. W. Bliss Co. v.
United States10* the court had to consider whether the action of
administrative officers had been such as to create a claim against
the government on which it would be subject to suit in the court of
claims.10*
Two cases involved administrative dealings with the Indian tribes.
United States v. Omaha Tribe of Indians107 denied recovery against
""252 U. S. 112, 4o Sup. Ct. 3o9 (192o).
m 252 U. S. 147, 4o Sup. Ct. 257 (192o).
""251 U. S. 123, 4o Sup. Ct. 67 (1919). Mr. Justice Brandeis dissents.
See 29 Yale L. J. 666.
"251 U. S. 326, 4o Sup. Ct. 162 (192o). Justices Day and Van Devanter
dissent. Mr. Justice McReynolds did not sit.
"251 U. S. 355, 4o Sup. Ct. 168 (192o).
""253 U. S. 187, 4o Sup. Ct. 455 (192o).
""For references to discussions of claims against governments see note
88, supra.
wr2S3 U. S. 275, 4o Sup. Ct. 522 (192o).

the 'United States for depredations committed by a hostile tribe, and
held that the agreement in a treaty to give protection so long as the
President may deem it necessary imposed no liability in the absence
of a finding that there was failure to provide such protection as the
President deemed necessary. The case illustrates the principle that
a right dependent upon administrative action cannot arise unless
the requisite action is taken. United States v. Payne* held that
the Secretary of the Interior is the final judge of whether names
shall be enrolled as members of the Creek Nation and that until he
has taken final action he may abandon his preliminary conclusions.
The Secretary had written the commissioner approving his report,
but he was allowed to rescind this without giving any hearing or
adducing any reasons. Such action prior to any actual enrollment
was held not to deny due process of law.
Two other cases accepted long-continued administrative construc
tions of statutes. Ash Sheep Co. v. Uniled States1 adopted the
administrative conclusion that "cattle" includes sheep, in view of
warrant in the dictionaries aided by the presumption that Congress
would have amended the statute had it disliked the administrative
interpretation of its scope. In Corsicana National Bank v. John
son110 Mr. Justice Pitney declared:
"Whatever view we might entertain, were the matter res
nova, we are advised that by the practice and administrative
rulings of the Comptroller of the Currency during a long
period, if not from the beginning of national banking, liabili
ties which are incurred by one person avowedly and in fact
as surety or as indorser for money borrowed by another are
not included in the computation. We feel constrained to
accept this as a practical construction of the section. * * *"
The question arose in a suit by a national bank against one of its
officers for loaning amounts in excess of that permitted by the
statute to a single borrower.
"253 U. S. 2o9, 4o Sup. Ct. 513 (192o).
"252 U. S. 159, 4o Sup. Ct. 241 (192o).
"251 U. S. 68, 4o Sup. Ct. 82 (1919).
332
MICHIGAN LAW REVIEW

X. Intergovernmental Relat1ons
Several of the cases already reviewed involve relations between

the states and the United States. In Hawke v. Smith111 and National
Prohibition Cases112 it was settled that a state legislature acts as a
federal agency in passing upon proposed amendments to the federal
Constitution, and that therefore a state cannot subject the action
of the legislature to a referendum. Evans v. National Bank of
Savannah113 illustrates the familiar rule that national banks are sub
ject to state control only to the extent permitted by Congress. Ervien
v. United States11* shows that a stipulation in an enabling act as to
the use to be made of lands therein granted to the thereby newlycreated state is binding on the state after it attains a full-fledged
status and will be enforced by the federal courts. United States v.
Osage County1 lets the United States as guardian of Indians sue
in a federal court to protect its wards from wrongful state taxa
tion. Duhne v. New Jersey110 holds that the original jurisdiction
of the Supreme Court in controversies to which a state is a party
is confined to cases in which the federal judicial power extends to
suits against a state, and therefore does not include a suit sought
to be brought against a state by one of its citizens.117
Relations between states brought several cases to the Supreme
Court. Questions of fact with regard to boundaries were adjudi
cated in Minnesota v. Wisconsin11* and Arkansas v. Mississippi.11'
In Ohio v. West Virginia1'10 and Pennsylvan1a v. West Virginia121
""253 U. S. 221, 4o Sup. Ct. 495 (192o), 19 M1ch. L Rev. 2.
"'253 U. S. 35o, 4o Sup. Ct. 486 (192o), 19 M1ch. L. Rev. 4.
"251 U. S. 1o8, 4o Sup. Ct. 58 (1919), 19 M1ch. L. Rev. 18.
114 251 U. S. 41, 4o Sup. Ct. 75 (1919), 19 M1ch. L. Rev. 16.
"251 U. S. 128, 4o Sup. Ct. 1oo (1919), 19 M1ch. L. Rev. 17.
*"251 U. S. 311, 4o Sup. Ct. 154 (192o), supra, p. 3o1.
u* A question of intergovernmental relations is considered in M. G. Wal
lace, "Taxation by the States of United States Bonds Held by Corporations",
6 Va. L. Rev. 2o.
"252 U. S. 273, 4o Sup. Ct. 314 (192o).
"252 U. S. 344, 4o Sup. Ct. 333 (192o).
On such questions of fact as those involved in this and in the preceding
case, see Harvey Hoshour, "Boundary Controversies Between States Border
ing on a Navigable River", 4 M1nn. L. Rev. 463.
"252 U. S. 563, 4o Sup. Ct. 357 (192o).
"252 U. S. 563, 4o Sup. Ct. 3S7 (192o).
323
the court granted motions to consolidate the cases for the purpose
of taking testimony, and appointed a commissioner for that pur
pose. Four cases each styled Oklahoma v. Texas112 dealt with
petitions to intervene or granted leave to file them. One issued an
order granting an injunction and appointing a receiver, and another
issued an order instructing the receiver.
Thomas Reed Powell.
"252 U. S. 372, 4o Sup. Ct. 353 (192o) ; 253 U. S. 465, 4o Sup. Ct. 58o,
58o, 582 (192o).
M1ch1gan
Law
Rev1ew
PUBLISHED MONTHLY DURING THE ACADEMIC YEAR, EXCLUSIVE OF OCTOBER, BY

LAW SOHOOL OF THE UNIVERSITY OF MICHICAN
INSCRIPTION PRICE B2.80 PER YEAR.
ASSOCIATE EDITORS
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Edson R. Sunderland
E. C. Goddard
Joseph H. Drake
John B. Watte
Harold M. Skapero, of Michigan
NOTE AND COMMENT
Mar1t1me L1ensPersonal1ty of Sh1p.In Coal Company v. Fisheries

Company (Advanced Sheets, Nov. 15, 102o), the Supreme Court denies a lien
for supplies of coal furnished the owner of a fleet of vessels for use thereon
and, incidentally, brings into stronger relief the admiralty doctrine of the
personality of the ship as distinguished from that of the owner. At the time
the arrangement was made, the shipowner was without money or credit and
could not enter upon its operations without a supply of coal for its ships and
factories. The Coal Company agreed to supply its requirements on the under
standing that, while some of the fuel would be used on shore, the greater
part would be consumed by the vessels and that it would have a maritime lien
therefor. All deliveries were made at the shipowner's factories and the ships
were fueled from its bins in quantities of which accurate accounts were kept.
Towards the close of the season of navigation, the vessels were sold under a
foreclosure of mortgage and the Coal Company asserted its lien by proceed
ings in rem against them. In affirming the decree of the Court of Appeals
dismissing the libels, the Supreme Court points out that the maritime lien
provided by the Act of June 23, 191o, rests upon a furnishing of supplies to
the vessel and not to the owner for such appropriation to the vessel as he
NOTE AND COMMENT
325
may subsequently make. The implication is that the relations requisite for
such liens as the statute mentions must be between the creditor and the ship,
not between the creditor and the shipowner, since the ship is "an entity
capable of entering into relations with others, of acting independently, and
of becoming responsible for her acts." Here the material man had furnished
coal to the shipowner but it was the shipowner which had furnished the ship,
so that no maritime lien was created.
Detroit Mich.
G. L. Canf1e1.d.
The R1ght of a Jury 1n a Cr1m1nal Case to Render a Verd1ct Aga1nst

the Law and the Ev1dence.One George D. Horning was convicted of the
criminal offense of doing business as a pawnbroker in the District of Co
lumbia without a license. The jury, which rendered the verdict of guilty, were
told by the court, in the course of the charge, that there really was no issue
of fact for them to decide; that the evidence showed a course of dealing con
stituting a breach of the law, and that they were not warranted in capriciously
saying that the witnesses for the government and for the defendant were not
telling the truth ; that it was their duty to accept the exposition of the law
given them by the court; and that while, in a criminal case, the court could
not peremptorily instruct them to find the defendant guilty, if the law per
mitted it he would do so in this case. The judge concluded his charge as
follows :
"In conclusion I will say that a failure to bring in a verdict in this case
can arise only from a wilful and flagrant disregard of the evidence and the
law as I have given it to you and a violation of your obligation as jurors.
Of course, gentlemen, I cannot tell you in so many words to find defendant
guilty, but what I say amounts to that."
On a writ of certiorari to the Supreme Court of the United States, it
was held by Justices Holmes and four concurring judges that there was no
error in these instructions. Justice Brandeis and three other judges dis
sented. This was the case of Horning v. District of Columbia, 41 Sup. Ct.
Rep. S3, decided November 22, 192o.
Justice Holmes said that the judge could not direct a verdict of guilty,
for "the Jury has the power to bring in a verdict in the teeth of both law and
facts", but that he had not really done so in this case, for "the jury were
allowed the technical right, if it can be so called, to decide against the law
and the facts."
Justice Brandeis said that in his opinion the charge of the court amounted
to a "moral command", and was as much the direction of a verdict as though
made "in so many words."
What the trial judge did in this case was, in effect, to inform the jury
that it was their duty as jurors, under the oath which they had taken, to find
the defendant guilty on the undisputed facts and on the law which he had
laid down, but that he could not take any steps to compel them to do their
duty further than to urge them to do it. Here was a duty, then, which could
not be enforced, and a breach of which could not be punished. Did it fol
326
MICHIGAN LAW REVIEW
low that the duty to find the defendant guilty was only a moral, not a legal,
duty, and that therefore the jury, while morally bound, were legally free?
In the leading case of Sparf and Hanstn v. United Slates, 156 U. S. 51,
it was admitted by all the judges that the jury had the power to go against
the law as laid down by the court, but the majority held that they had no
legal right to do this, while the minority argued with great skill and learning
that they had both the power and the legal right. In the Horning case the
majority held that the jury had the power and were allowed the technical
right to go against the law and the evidence, and therefore there was no error.
Is it to be concluded from this that the court has shifted away from the rule
so laboriously worked out in the Sparf and Hansen case, and has come to
recognize the right of the jury to decide the law?
If Justice Holmes meant by "technical right" a real legal right, his view
is not in accord with the Sparf and Hansen case. But he does not seem to
have meant this. He says "the jury were allowed the technical right, if it can
be so called, to decide against the law and the facts." What happened was
that the jury were given the opportunity to use their power to do this, but
were told that they ought not to do it. They were not told that they could not
do it. The judge made it clear that while their duty was to convict, there was
no agency for enforcing that duty except their own consciences. This might
seem to indicate that the duty was a merely moral duty, and that while they
had a legal right to ignore the judge's instructions they had no moral right
to do so. But the law deals with legal, not moral concepts, and if the court,
as a court of law, could properly say that it was their duty to follow his
views, that duty must have been a legal duty. There is nothing incongruous
in a legal duty which the law does not or cannot enforce. Its unenforceable
character does not relegate it to the realm of morality. There are many
instances of imperfect legal rights, where the customary union between the
right and its enforcement by legal action has been for some special reason
severed, and where the maxim ubi jus ibi rcmedium does not apply. Salmond,
Jur1sprudence, Sec. 78. Claims against sovereign states are outstanding ex
amples. One may perhaps get a judgment against the state, but there is
usually no means of positive enforcement of that judgment. But the claims
should properly be deemed legal, not merely moral.
Holland says that jurisprudence is specifically concerned only with such
rights as are recognized by law and enforced by the power of the state.
Jur1sprudence [12th ed.], 82. But this is too broad a statement. As Dicey
points out, "The distinction between the recognition and the enforcement of
a right deserves notice. A court recognizes a right when for any purpose the
court treats the right as existing. * * * But our courts constantly recognize
rights which they do not enforce." Confl1ct of Laws [2nd ed.], 31. 32. The
statute of limitations, as shown by Salmond, does not extinguish a debt,
thereby destroying the right, but merely prevents an action for its recovery.
The right remains "for all purposes save that of enforcement." Jur1s
prudence. Sec. 78.
Now, the court held in the Sparf and Hansen case that the legal right to
NOTE AND COMMENT

determine the law was in the court. But while the judiciary recognizes this
right it does not enforce it. It recognizes it as a means for influencing, not
for controlling, the action of the jury. The right exists for a legitimate legal
purpose, but that purpose is not enforcement. The right is therefore an im
perfect legal right, or a right subject to a procedural limitation. And when
Justice Holmes, in Homing's case, says that the jury have a "technical right"
to go against the law and the facts, he seems to be merely pointing out this
imperfection which the law recognizes in the right of the court to determine
the law. The "technical right" of the jury is only the restriction placed upon
the right of the court. To say that the court has the right to determine the
law but that the jury have the technical right to disregard it, appears to be
only another way of saying that the court has the right to determine the law
but has no means of enforcing its right against the jury.
If this was the situation in which the law placed the judge and the jury,
it was incumbent upon the trial judge to explain it to the jury and not to
mislead them by claiming not only the right to determine the law, which he
had, but also the right of enforcement, which he did not have. The judge
did explain this to the jury. He told them that it was their legal duty to find
the defendant guilty, but that he was not permitted by the law to compel them
to perform that duty. He made it sufficiently clear that their duty was im
perfect in its obligation and was unenforceable by the court. This was
entirely consistent with the case of Sparf and Hansen.
Justice Brandeis disapproved of the action of the trial court because he
believed it amounted to a moral command to convict the defendant. If there
was error here, the fault lay, not in telling the jury that they ought to con' vict, but in failing to make it perfectly clear that the law left the perform
ance or non-performance of this legal duty wholly to the conscience of the
jury. In other words, the moral command, if there was one, consisted in the
failure to disclose the unenforceable and imperfect character of the duty to
follow the law as given by the court. It was at most a moral advantage
taken by the court resulting from an incomplete and misleading statement
of the nature of the legal duty resting upon the jury,the same sort of
moral compulsion which frequently flows from incomplete instructions. But
there is nothing in this dissenting opinion, any more than in the prevailing
opinion, which conflicts with the Sparf and Hansen case.
E. R. S.
C1ty Plann1ngLocat1on of Streets and Establ1shment of Bu1ld1nc.
L1nes.In 1917, Connecticut, by law authorized Windsor to create a town
planning commission "to make surveys and maps, section by section * * *
showing locations for any public buildings, highways, or streets, including
street building and veranda lines." Such map was to be filed in the town
clerk's office, and notice given to the owners for a hearing ; after such hear
ing, the commission was to decide, and file a map in accord with its decision ;
a right of appeal to court was reserved to an aggrieved party; and no street
was to be opened until the land necessary was appropriated under eminent
domain proceedings. A town planning commission was appointed, and made
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MICHIGAN LAW REVIEW
plans, under this statute. The defendant, in developing a tract of land for
residential purposes, in Windsor, laid out streets, fixed building lines, and
began selling lots, without conforming to the commission plans. The city
sued to restrain him from proceeding according to his own plans. He de
murred on the ground that the act authorized a taking of his property without
due process of law. The trial court so held. On appeal, reversed. Town
of Windsor v. Whitney, (Conn., Aug. 5, 192o), 111 Atl. 354.
Wheeler, J., speaking for the majority, says: "This does not physically
take the land, but it regulates its use, and hence deprives the owner of a part
of his dominion over his land. The owner may not lay out streets through
this land where he chooses and of the width he chooses. Nor may he estab
lish the building lines where he wills. There is no provision in the act for
compensation. * * * Unless this regulation can be supported as a legitimate
exercise of the police power the act must fall. A town commission plan * * *
is distinctly for the public welfare. * * * In such a plan each street will be
properly related to every other street. Building lines will be established where
the demands of the public require. Adequate space for light and air will be
given. Such a plan is a wise provision for the future. It betters the safety
and health of the community; it betters the transportation facilities; and it
adds to the appearance and wholesomeness of the place, and as a consequence
it reacts upon the morals and spiritual power of the people who live under
such surroundings."
Gager, J., dissented, holding that the establishment of a building line was
a taking of property for which compensation must be made, relying on and
citing City of St. Louis v. Hill, 116 Mo. 527; Northrop v. Waterbury, 81
Conn. 3o9; Benedict v. Pettes, 85 Conn. 537. And this seems to be according
to the weight of authority: Eubank v. Richmond, (1912), 226 U. S. 137, Ann.
Cas. 1914B, 192, with note; Fruth v. Board of Affairs, (1915), 75 W. Va. 456.
It was only in reference to the building line provisions that Judge Gager
dissented. The case therefore stands for the rule that a city may lay out
streets over or across the land of another, and the land owner must con
form to such lay-out, in disposing of his lots, although the city has not opened
the street, and may not do so for a long time. In this particular it resembles
the early case of In the Matter of Furman Street (1836), 17 Wend., N. Y.,
649. Here the legislature of New York authorized the village of Brooklyn
to lay out streets and file a map thereof. It did so in 1819. In 1833, one of
the streets so laid out was first opened ; in the meantime buildings had been
erected within the street as originally mapped, and it was held the owner was
not entitled to any compensation for the destruction of his building when the
street was actually opened seventeen years after its location. This case, how
ever, was overruled by the Court of Appeals, in Forster v. Scott, (1882) 136
N. Y. 577, 583, and this was followed on a similar state of facts in Edwards
v. Bruorton, (19o4), 184 Mass. 529, 532.
Pennsylvania, on the other hand, early followed the Furman St. case,
and continues to do so: In Forbes Street, (1871), 7o Pa. St. 125, 137; Bush
v. McKeesport, (1895), 166 Pa. 57; Harrison's Estate, (1915), 25o Pa. 129;
NOTE AND COMMENT
329
Philadelphia Parkway, (1915). 25o Pa. 257; Dintman v. City of Harrisburg,

(1919),
Pa.
, 1o8 Atl. 724, 725.
See for full discussion of recent cases on zoning, 19 M1ch. L. Rev. 191.
H. L. W,
Concurrent Power Under the E1ghteenth Amendment.The two

main questions which have been considered in making the decisions under the
Eighteenth Amendment are whether or not state provisions for referendum of
legislative action can be applied to ratification of proposed amendments to
the Federal Constitution, Hawke v. Smith, (192o), 251 U. S.
, 4o Sup.
Ct. 495, and what the interpretation of the second section of the amendment
is to be, in giving the states 'concurrent power' to enforce the Amendment by
legislation, along with Congress. State of Rhode Island v. Palmer, (192o),
4o Sup. Ct. 486. Hawke v. Smith reversed the decision (below) in the Ohio
Supreme Court, 126 N. E. 4oo, which had held that the referendum applied.
See note on the decision in the Ohio court in 18 M1ch. L. Rev. 698. The
Supreme Court decided that the fifth Article of the Constitution, providing
for methods of amendment, is a grant of authority by the people to Congress;
hence, the authority given to the state legislatures to ratify is given to specific
bodies as an expression of assent, rather than legislative action, so that the
referendum cannot apply. See a forecast of this view in a Note and Comment
in 18 M1ch. L. Rev. 51. Davis v. Hildebrant, 241 U. S. 565, which held that
the referendum provision of the state constitution applied to a law redistricting the state with a view to representation in Congress was distinguished on
the ground that that was legislative action by the state, to which the referundum properly applied. For an exposition of the cases of Hawke v. Smith
and Rhode Island v. Palmer, supra, see article by Thomas R. Powell, "Con
stitutional Law in 1919-192o," 19 M1ch. L. Rev., pp. 2-8. On the Eighteenth
Amendment as a whole, see article by George D. Skinner, "Intrinsic Limita
tions on the Power of Constitutional Amendment," 18 M1ch. L. Rev. 213.
In Rhode Island v. Palmer, the opinion of the Court gave no reasons for
the decision, setting a new precedent in giving practically a memorandum
opinion in a case of wide importance. It held that the words 'concurrent
power' do not mean joint power, nor that legislation by Congress must be
approved by the states, nor that the power should be divided between Con
gress and the several states along the lines of activity in inter and intra-state
commerce regulations.
Justice McKenna, in a separate opinion, interprets section 2 of the Amend
ment to mean 'coincident or united action'; there must be concordant action
in Congress and the states, and he looks hopefully to the sentiment which
produced the Amendment to give harmonious legislation in Congress and the
states. The giving of concurrent power to both Congress and the states ex
pressly is entirely new in the Constitution. Any argument -must necessarily
be based on more or less remote analogy. Perhaps concordant action as
demanded by Justice McKenna is possible. In Ex parte Siebold, 1oo U. S.
371, at page 391, Justice Bradley, in discussing the power given to the states
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MICHIGAN LAW REVIEW
to prescribe election laws, and that of Congress to make or alter them, says
"the more general reason assigned, to-wit, that the nature of sovereignty is
such as to preclude the joint cooperation of two sovereigns even in a matter
in which they are mutually concerned, is not, in our judgment, of sufficient
force to prevent concurrent and harmonious action on the part of the national
and state governments in the election of representatives. It is at most an
argument ab inconveniente." Of course, the provision that Congress can
alter regulations makes it paramount over the states. And see Sowles v.
Witters, 46 Fed. 499, where a United States statute authorized Federal Courts
to adopt judgment remedies of the state in which it is located, and that such
then become United States Laws. A difficulty of adjustment, however, if
concordant action is required, is indicated in Boston & M. R. R. v. U. S.,
265 Fed. 578, in which it was contended that a Federal statute on taxing of
corporations should get its interpretation of certain words from the state
statute on the subject. It was said that if this principle were accepted, "the
general government would be forced 1o adopt different standards and differing
rules of taxation among the states, varying in accordance with the differing
statutes." The objection of Justice White, however, that to require concur
rent action is to practically nullify the Amendment, since until such action is
taken prohibition is a dead letter, seems unanswerable.
The Chief Justice, objecting both to a requirement of concordant action
and to Congress' being paramount, where they both act, seems to hold that
Congress and the states have independent powers. The cases before the Court
in the Rhode Island decision were cases of injunctions against the enforce
ment of the Volstead Act, passed by Con(?ress in accordance with section 2.
Two cases came up subsequently to the Rhode Island decision, one in a
Federal District Court, Ex parte Ramsay, 265 Fed. 95o (Fla.) ; and Common
wealth v. Nickerson, 128 N. E. 273 (Mass.), on indictments under state
statutes which had been passed before the Volstead Act. In both cases it
was held that the fact that the state statutes antedated the Volstead Act made
no difference in the situation, and in both cases the indictments were sus
tained. In Ex parte Ramsay, supra, the indictments were under a statute
passed to enforce a state constitutional prohibition provision. It was held
that since the state statute made substantially the same thing unlawful that
the Volstead Act did. there was no conflict, although the penalties provided
by the state act were more severe than those provided by the Federal Act.
"Surely a state could pass legislation for the purpose of carrying out the
Amendment under the authority given in the Amendment itself, which was not
in violation of any provisions of the Volstead Act." It would seem to follow
that if the statute had been in violation of the Volstead Act, it would have
fallen. In Commonwealth v. Nicketson, supra, Chief Justice Rugg gives an
exhaustive discussion of the possibil1ties of concurrent action. The defendant
was charged with selling liquor without a license, contrary to the provisions
of the state statute. The question was as to the validity of the statute since
the Eighteenth Amendment and the Volstead Act. It was held that so much
of it as allowed sales under a license fell after the Amendment, but that the
rest of the statute was enforceable, since it did not conflict with the Volstead
NOTE AND COMMENT

Act; that powers of the state and of Congress may be given different mani
festations if not in collision with one another, in which case state legislation
must yield ; and a state statute could not authorize what Congress forbids.
These decisions seem sound, and seem to avoid any suggestion of a 'states'
rights' interpretation. Justice Rugg discards the meaning of 'concurrent' as
given in cases between states exercising concurrent jurisdiction over the river
running between them; Wedding v. Meyler, 192 U. S. 573; Neilson v. Oregon,
212 U. S. 315. The latter case held that an act done on the river within the
boundaries of one state and allowed by that state cannot be prosecuted by the
other state. Justice McKenna found an analogy here for action under the
Eighteenth Amendment ; but one outstanding difficulty seems to be that states
are equal powers, while the United States and any one state can scarcely be
held to be equal sovereignties. Moreover, Justice Brewer in the latter case
said that the object of giving concurrent jurisdiction was to avoid nice ques
tions as to whether a criminal act sought to be prosecuted was committed on
one side or the other of the river; it was expressly not decided whether, in
the entire absence of legislation by one state the other could enforce its statute
anywhere on the river, nor whether prosecution must be by both states jointly.
The Rhode Island decision expressly held that 'concurrent power' did not
mean that power divided between Congress and the states along lines which
separate interstate commerce from intrastate affairs ; yet cases concerning this
division furnish a helpful analogy, in concurrent power. Chicago, Milwaukee
&- St. Paul R. Co. v. Solan, 169 U. S. 133 ; Lake Shore & Mich. Southern R.
Co. v. Ohio, 173 U. S. 285; see Richmond & A. R. Co. v. R. A. Patterson
Tobacco Co., 169 U. S. 311. In Lake Shore & M. S. R. Co. v. Ohio, supra,
Justice Harlan said, "This power in the states is entirely distinct from any
power granted to the general government, although, when exercised, it may
sometimes reach subjects over which national legislation can be constitution
ally extended." Gilman v. Philadelphia, 3 Wall. 713, recognizes concurrent
power in the states in all cases except where power is exclusively in the
Federal Constitution, expressly prohibited to the states, and where in the
nature of things it must be exercised by the national government exclusively.
The building of a bridge across a navigable river was held to be within this
reserved power of the state. Where Congress has not controlled state legisla
tion in this field, the state, within certain limits, is supreme. IVillson v. Black
bird Creek Marsh Co.. 2 Pet. 245. Where the powers clash, Congress is para
mount, Sinnot v. Davenport, 22 How. 227. It would seem that the Eighteenth
amendment has given the states further power than they have in their re
served police powers touching interstate commerce ; in that they have power
over importations. But this seems to be more a difference of degree than
of kind, and an analogy seems possible.
One difficulty seems to lie in the fact that 'concurrent' is assumed to mean
the same thing as 'equal.' That it does not mean that is tacitly recognized in
Ex parte Ramsay and Commonwealth v. Nickerson, supra. To waive com
pletely the analogy found in the cases where states have exercised their re
serve powers, 'concurrent' at least in a sense, simply because the analogy is
not perfect, seems a species of legalistic reasoning. It was undoubtedly meant
332
MICHIGAN LAW REVIEW
by the second section of the Amendment to make the enforcement of it as

effective as possible, by giving the states concurrent power. It is not con
ceivable that it was intended to assert anew a 'states' rights' doctrine. In
cases -in which, heretofore, the states have had reserved powers, Congress,
where it invades those powers, where permitted to enter the field, has been
considered paramount, and it is doubtful if the framers of the Amendment
intended to break away from this precedent and make the power of the
states equal to that of Congress, although independent. It would seem that
there must be a clear repugnancy where the principle of supremacy is applied;
see Sinnon v. Davenport, supra, at page 243. Not to hold Congress supreme
in case of a clash would certainly nullify the amendment. The two decisions
supra of Ex parte Ramsey and Commonwealth v. Nickerson seem to have
pointed the way which interpretation is bound to take.
G. D. C.

Automob1lesConst1tut1onal1ty of Statute Mak1ng Owner L1ablx
for Injury Caused by Another's Negl1cent Dr1v1ng.The automobile of
' D, driven negligently by his fifteen-year-old son. injured P. In an action
for damages, D offered evidence that his son took and was driving the auto
mobile against his express orders. Held, such evidence is not admissible in
view of Publ1c Acts of 1915, No. 3o2, Sec. 29, providing that if the motor
vehicle is being driven at the time of the injury by an immediate member
of the owner's family it shall be conclusively presumed that it was with the
owner's consent and knowledge. (Affirmed by a divided court.) Hawkim
v. Brmatinger (Mich., 1920), 179 N. W. 249.
The aim of this statute is to place upon the owner liability for damage
caused by his automobile's negligent operation by an immediate member of
his family. This is in effect a substantive rule of law, not a mere rule of
evidence. W1gmore's Ev1dence, Vol. 2, p. 1665. The statute making the
owner liable without fault on his part, if within the power of the legislature,
must be within their police power. The police power of a state embraces
all regulations designed to promote the general welfare or prosperity. Chi
cago Ry. Co. v. Drainage Comm.. 2oo U. S. 561 ; Noble State Bank v. Has
kell, 219 U. S. 1o4; Eubank v. City of Richmond, 226 U. S. 137. The legis
lature in the exercise of this power may regulate the use of vehicles on the
streets and highways. Radnor v. Bell, 27 Pa. Super. Ct. 1 ; People v. Schnei
der, 139 Mich. 673. To justify the state in thus interposing its police power
in behalf of the public, it must appear, first, that the interest of the public
generally, as distinguished from those of a particular class, require such
interference; and second, that the means are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon the indi
vidual. Lawton v. Steele, 152 U. S. 133. Such legislation will not be over
thrown by the courts unless utterly unreasonable or purely arbitrary. Otis
v. Parker, 187 U. S. 6o6; McLean v. State of Arkansas, 211 U. S. 5391;
Schmidinger v. Chicago, 226 U. S. 578. The automobile driven by an irre
sponsible driver is indeed a danger and some reasonable means of protecting
the public from such danger is a proper act of the legislature. But such
protective legislation must be considered in relation to the due process clause
of the Fourteenth Amendment. A father is not liable for the tort of his
child simply because of paternity. Smith v. Jordan, 211 Mass. 269; Zeeb v.
Bahnmaier, 1o3 Kan. 599. This statute, holding a party absolutely liable for
the conduct of another, no matter how careful or free from negligence he
himself has been, is in effect taking the property of one party to pay for the
wrongful and negligent act of another, not in the relation of a servant or
agent to him. Daugherty v. Thomas, 174 Mich. 371. This is indeed taking
property without due process of law. Camp v. Rogers, 44 Conn. 291. To
be sure, the rights of the individual are not free from reasonable enactments
334
MICHIGAN LAW REVIEW
in the interest of the common welfare. Cnl. Reduction Co. v. Sanitary Co.,
199 U. S. 3o6; Barbier v. Connolly, 113 U. S. 27. Whether or not a particu
lar statute is reasonable must depend, then, on the enormity of the evil and
the fitness of such legislation to afford a remedy. Adams v. Tanner, 244 U.
S. 59o. It is suggested that a statute imposing liability without fault is very
harsh and should be disfavored by the courts. There should be adopted a
more reasonable method of enforcing a duty upon the owner of an automo
bile to keep it safe from negligent drivers. The danger from carelessly
driven automobiles would not seem to be so great that a remedy as confis
catory as the one in the principal case is needed. It is submitted that the
above statute should be held unconstitutional as being an unreasonable and
arbitrary method of accomplishing the purpose of the legislature.
BrokersNot Ent1tled to Comm1ss1ons for Sale oe Steamers Pre
vented by War Sh1pp1ng Statute and Proclamat1on.On January 27,
1917, the plaintiffs, shipbrokers, entered into a contract to sell two steamers
for the defendants. A Canadian firm was procured as a buyer, the sale to
be subject to its inspection. On February 5, 1917, before the sale was com
pleted, a proclamation was issued by the President, declaring an emergency
and calling into effect a statute enacted September 7, 1916, prohibiting the
sale of United States registered vessels to foreign owners unless first ten
dered to the Shipping Board. The Shipping Board declined to permit the
sale and the defendant refused to transfer the steamers. In an action to
recover commissions, held, the statute and proclamation constituted a legal
justification and excuse for defendant's refusal to perform, and no commis
sions could be recovered. Damers v. Trident Fisheries C<>. (Me., 192o), 11l
Atl. 418.
If performance of a contract becomes impossible or illegal by reason
of a change in the law, the promisor is no longer bound. American Mer
cantile Exch. v. Blunt, 1o2 Me. 128; Public Service Co. v. Public Utility
Commrs., 87 N. J. L. 128; Lcwey v. Granite State Prov. Assn., 28 N. Y.
Supp. 56o; Andrew Miller & Co. v. Taylor & Co., [1916] 1 K. B. 4o2. The
law on this subject has been greatly augmented by litigation growing out
of the war and its effect on the performance of contracts. It has been held
that a party who becomes unable to perform a contract due to anticipatory
war measures will be excused from further performance. Foster v. Compagnie Francaisc de Navigation a Vapcur, 237 Fed. 858. Likewise, the out
break of war, making illegal commercial intercourse with enemy countries,
will excuse a vendor from delivering goods to an enemy subject. Jager v.
Toline, [1916] 1 K. B. 939; Edward Grey & Co. v. Toline (1915). 31 Time
L. R. 551. Or from delivering goods which were to be obtained from an
enemy country. Verthardt & Hall v. Rylands Bros. (1917), 86 L. J. Ch. (N.
S.) 6o4; Cooper v. Neilson & Maxwell (1919), Vict. L. R. 66; or to be
manufactured in enemy territory. Ross v. Shaw (191"), 2 Ir. R. 367. For
many other recent cases see note in 3 A. L-R.11. In the instant case it
was objected that the statute did not apply, having been made before the
335
contract was entered into. This would seem to be immaterial, since the
statute was inoperative until the President's proclamation, which was after
the contract was entered into but before its completion. If by this argu
ment it is meant that both parties having known of the enactment at the
time the arrangement was made, the vendor should thereby be deemed to
have assumed the risk of procuring the Shipping Board's consent to a sale
in case the statute should be called into effect, and agreed to pay the com
missions in any event, the contention is unsound. This argument was made
in an English case where the parties entered into an agreement for the sale
of a quantity of aluminum to be shipped by the seller to a foreign company,
at a time when to the knowledge of both parties there was a government
prohibition of the export of aluminum except on license of the British gov
ernment. It was held that the law would not impose an absolute obligation
to do what the law forbade, and that the contract was subject to an implied
condition that an export license could be obtained. Anglo-Russian Traders
v. John Butt & Co., [1917] 2 K. B. 679. The reasoning would apply equally
well to the instant case. For a full discussion of many cases dealing with
war-time impossibility of performance, see 18 M1ch. L. Rev. 589. See also
35 Law Q. Rev. 84; 38 Canad1an Law T1mes 86.
Char1t1esAppl1cat1on "Cy pres."Testator devised specific real prop
erty, including a hotel, in trust to sell part of the property, and operate the
hotel in testator's name, and from the proceeds and profits raise a sinking
fund for the permanent operation and improvement of the hotel, and there
after to apply the funds to specific charities. After testator's death a modern
hotel was erected in the same city and because of its competition testator's
hotel could not be maintained and operated in the future at a profit or so
as to provide an income for the charities designated. Plaintiff, heir at law
of testator, claims that, in view of the changed conditions and circumstances,
the provision in the will for the charities must fail, and therefore prays that
a decree be entered vesting the title to the property in him. Held, the inten
tion to give the funds to the charities specified will be given effect, though
the mode prescribed cannot be followed. Hodge v. Wellman (la., 192o), 179
N. W. 534The doctrine of the cy pres application of charitable trusts, as a branch
of the general equitable powers of a court of chancery, has been extensively
recognized in some form throughout the United States. On the other hand,
the doctrine has been wholly rejected in some states. See Crim v. William
son, 18o Ala. 179; Mars v. Gilbert, 93 S. C. 455. Courts of equity favor gifts
to charity, and in the jurisdictions which have adopted the cy pres doctrine
the courts have held that if the mode pointed out in the will for carrying
the gift into effect fails the court will provide another mode by which it
may take effect. See Jansen v. Godair (Ill., 192o), 127 N. E. 97; Ada}s v.
Page, 76 N. H. 96. In the latter case, where the testator's plan to provide
a hospital for those living in a certain community had become impracticable
by reason of the establishment of a similar institution by others, the court
336
MICHIGAN LAW REVIEW
carried out his intention by ordering that the trust property be used for the
benefit of the hospital already in operation. If, then, a court of equity, by
the application of cy pres doctrine, will order the trust property to be used
for a charity other than the one specified by the testator because it would
be impracticable to carry out his specific intention, a fortiori should they apply
the cy pres doctrine when the impracticability arises merely in the mode of
the administration of the trust property. As pointed out in the principal
case, where the essential thing in the testator's mind was the mode pre
scribed for carrying out his wishes, and not a general intent to devote
the funds to charity, the doctrine of cy pres cannot apply if the particular
mode prescribed by the testator is impracticable or illegal. In the instant
case definite charities were created, but the particular mode by which they
were to be effectuated had become impossible. By substituting another mode
the substantial intention of the testator was not made to depend upon his
formal intention. The doctrine cy pres adopted to this extent is in harmony
with the equitable rule that a liberal construction is to be given to charitable
donations to accomplish the general charitable intent of the donor. The deci
sion in the principal case is sound and would no doubt be followed in all
jurisdictions recognizing, in any form, the cy pres doctrine.
Const1tut1onal LawF1x1ng Pr1ces for Sale of Necessar1es under
Lever Act 1s Depr1v1ng of Property w1thout Due Process of Law.A
demurrer was filed to a count of an indictment charging defendants *vith
violating the provision of the Lever Act making it unlawful to make any
unjust charges in dealing with necessaries, on the ground that the provision
contravenes the Fifth Amendment to the Federal Constitution. Held, that
the provision takes property without due process of law, and is therefore
unconstitutional. United States v. Bernstein (Neb., D. C, 1o2o), 267 Fed. 296.
The argument of the court may be briefly summarized as follows : In
the first place, the validity of war measures, however desirable, must stand
the test of constitutional limitations, and cannot be sustained if rights guar
anteed by the fundamental law are infringed thereby. Secondly, the value
of an individual citizen's property right, in such necessaries as he deals in,
is derived almost entirely from his right to sell freely, according to the
course of trade and commerce. An incident of such trade and commerce
between individuals is the fixing of a price. Finally, a law which makes it
a crime for a man to sell his private property, not clothed with a public
interest, for the best price he can get in the ordinary course of trade and
commerce, cannot be sustained, while the Constitution forbids the taking of
private property for public use without just compensation, and insures that
no person shall be deprived of his property without due process of law.
Obviously, the court overlooked the only real point in the case when it
assumed with delightful naivetS that it was dealing with property wholly
unaffected with any public interest. If necessaries of life are not "clothed
with a public interest" the argument is unimpeachable but too elementary
to necessitate any discussion. If, on the other hand, the business of dealing
337
in necessaries may be said to be clothed with a public interest, the argument

advanced by the court is wholly inapplicable. It is almost inconceivable that
a supposedly intelligent court should decide a case of this sort without even
considering the possibility of the business of handling necessaries being
affected with a public interest, in time of war at least. The only possible
explanation would seem to be that the court has become impressed with the
reasoning of the often-rejected dissenting opinions, in Munn v. Illinois, 94
U. S. 113, and its successors, including German Alliance Ins Co. v. Lewis,
233 U. S. 389, in which it has been contended that a "public interest" is
' impossible apart from a public use. The contrary has been held so often
by the Supreme Court of the United States that this view can scarcely be
seriously considered at the present time. For a further discussion of the
circumstances under which businesses and property may be said to be
"affected with a public interest," see 19 M1ch. L. Rev. 74. See also Weed
& Co. v. Lockwood (C. C. A., 2nd Circuit, 192o), 266 Fed. 785, infra, holding
contra to the principal case.
Const1tut1onal LawIs Prov1s1on of Lever Act Mak1ng Unreason
able Charges for Necessar1es Unlawful V1olat1on of S1xth AmkndmEnt
to Federal Const1tut1on ?A provision of the Lever Act makes it unlawful
for any person wilfully to make any unjust or unreasonable charge in hand
ling or dealing in necessaries, and provides a penalty of a fine and imprison
ment for its violation. A demurrer was filed to an indictment under this
provision on the ground that it violates the Sixth Amendment to the Federal
Constitution providing that in all criminal prosecutions the accused shall
enjoy the right to be informed of the nature and cause of the accusation,
inasmuch as no standard is established whereby a person can determine in
advance what specific acts will be held to be criminal. Held, the provision
is void. United States v. Bernstein (Neb., D. C, 192o), 267 Fed. 295. On
a bill to restrain the United States district attorney from proceeding on a
similar indictment, held, the provision is valid. Weed & Co. v. Lockuood
(C. C. A., 2nd Cir., 192o), 266 Fed. 785.
Louisville & N. R. Co. v. R. R. Comm. of Tenn., 19 Fed. 679; Louisville
& N. R. Co. v. Commonwealth, 99 Ky. 132, and Toser v. U. S., 52 Fed. 917,
are cited in support of the first principal case. In none of these cases was
the objection made that the particular statute involved violated the Sixth
Amendment. The first two cases were quasi-criminal actions to recover
penalties for violations of statutes making unjust discriminations and the
charging of unreasonable rates unlawful. In the first of these the statute
was declared void, apparently on the ground that it was a delegation to the
jury of the law-making power. In the Kentucky case the objection was
made and upheld that the failure to provide a standard of conduct violates
"due process." The Toser case seems to rest solely upon a statement by
Justice Brewer to the effect that persons are entitled to know in advance
whether or not particular acts constitute crimes. See also U. S. v. Capital
Traction Co., 34 App. (D. C.) 592; Czarra v. Board of Medical Examiners,
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25 App. (D. C.) 443. In all of these cases the point stressed particularly is
that a contrary holding would make the question as to whether specific acts
constitute crimes entirely dependent upon the whims of juries, and that uni
formity would be impossible. The court in the first principal case adm1ts
that "it must be conceded that many generic, broad descriptions have become
defmite and are upheld and enforced, and it is not in all cases easy to deter
mine when an accused is informed of the nature and cause of the accusation,''
but insists that no Supreme Court adjudications conflict with its conclusion
that the Sixth Amendment is contravened, and the law is therefore invalid.
The second principal case points out that practically all common-law crimes
were originally defined by the common opinion of the people, which found
expression in the judgment of juries and courts, and discusses a number of
situations arising in both civil and criminal cases where questions of fact
determining liability or guilt, as the case may be, are determined in accord
ance with what the jury deems reasonable. Anti-trust acts making "unfair
competition" and "restraint of trade" unlawful have been objected to, both
in civil and criminal actions, on the ground that these phrases are so indefi
nite as to violate "due process." These provisions have been sustained.
Standard Oil Co. v. U. S., 221 U. S. I, at 69; U. S. v. Am. Tibacco Co.. 221
U. S. 1o6; Sears-Roebuck Co. v. Fed. Trade Comm., 258 Fed. 3o1; WatersPierce Oil Co. v. Texas, 212 U. S. 86; Nash v. U. S., 229 U. S. 373 ; U. S.
v. New Departure Mfg. Co., 2o4 Fed. 1o7; U. S. v. Patterson, 2o1 Fed. 697;
U. S. v. Winslow, 195 Fed. 578. In Katsman v. Commonwealth, 14o Ky. 124,
a statute was held valid making failure on the part of druggists to use rea
sonable care to satisfy themselves that certain drugs they might sell were
to be used for legitimate purposes a criminal offense, and in State v. Pcx,
71 Wash. 185, a statute making unlawful the publishing of matter "which
shall tend to encourage disrespect for law" was objected to as uncertain,
and sustained. Affirmed in Fox v. Washington, 236 U. S. 273. To say that
the Sixth Amendment confers the absolute right in all instances to know
in advance whether or not specific acts constitute crimes would extend its
meaning considerably beyond the logical sense of the words used. As Jus
tice Holmes says in Nash v. U. S., supra, "* * * the law is full of instances
where a man's fate depends on his estimating rightlythat is, as the jury
subsequently estimates itsome matter of degree. If his judgment is wrong,
not only may he incur a fine or a short imprisonment, as here; he may incur
the penalty of death. * * * 'The criterion in such cases is to examine
whether common social duty would, under the circumstances, have sug
gested a more circumspect conduct.' 1 East. P. C. 262." For note discuss
ing statutes making it an offense to act "unreasonably," see 18 M1ch. L. Rev.
81o, 19 M1ch. L. Rev. 218.
ContractsMutual Prom1sesMater1al1ty of BreachR1ght of
Resc1ss1onQuest1on of Law or Fact.The city agreed to deliver all the
rubbish collected from the streets at fourteen dumps, where the plaintiff was
to load the same upon scows, in return for which he was to have the privi
339
lege of salvaging from the rubbish articles of value. The city having failed
for four months to furnish four of the dumps as specified, the plaintiff elected
to rescind the contract and sued to recover the amount of the bond which
he had posted to insure performance. Held (three Justices dissenting), it
was error to allow the jury to find that such failure on the part of the city
was not a substantial breach. Clarke Contracting Co. v. City of New York
(N. Y., 192o), 128 N. E. 241.
It has been settled since the decision of Lord Mansfield in Boone v. Eyre,
1 H. Bl. 273, n that where mutual promises go to the whole of the consid
eration on both sides, such promises are conditions precedent, the one to
the other, and breach of one gives the other party the right to rescind the
contract. Hoare v. Rennie, 5 H. & N. 19; Phillips & Colby Const. Co. v.
Seymour, 91 U. S. 646; Dwinel v. Howard, 3o Me. 258; Tool Co. v. Shoe
Machinery Co., 181 Mass. 275. The rule applies as well where there has
been part performance by the party committing the breach as where the con
tract is entirely executory. Clark v. West, 122 N. Y. S. 38o; Hodgkins v.
Moulton, 1oo Mass. 3o9; Boyle v. Guysinger, 12 Ind. 273. A case of rescis
sion for breach by the other party is essentially one of failure of considera
tion, and the question is whether the failure is sufficiently important to excuse
performance by the aggrieved party. Norrington v. Wright, 115 U. S. 188;
Morgan v. McKce, 77 Pa. St. 228; Wiley v. Athol, 15o Mass. 426. The deter
mination of this question depends upon the particular facts of any given
case. Boston Blower Co. v. Brown, 149 Mass. 421. In the principal case the
materiality of the breacl1 was decided as a matter of law, and it was here
that the court divided, the minority being of opinion that the question had
properly been left to the jury. Construction of written contracts, like other
instruments in writing, is a question of law for the court. Aaron v. Tele
phone Co., 84 Kan. 117. And it is difficult to see why it should not be a
part of such construction to determine whether the failure of consideration
on one side was of sufficient importance to excuse performance of the promise
on the other. See 28 Law Q. Rev. 4oo. Granting the difficulty of the situa
tion as pointed out in the dissenting opinion of Pound, J., and admitting, as
is said in W1ll1ston on Contracts, 841, that "The test is whether, on the
whole, it is fair to allow damages merely or to excuse performance entirely,"
still no rational ground appears for substituting the opinion of the jury for
that of the court upon a clear question of law.
ContractsMutual1ty.The plaintiffs agreed to purchase from the
defendant "their entire consumption of vulcanized fibre and insulating papers,
covering a period of one year." On demurrer, held, since the declaration
fails to show whether plaintiff had an established business, and therefore
whether the quantity bargained for was capable of reasonably correct esti
mate, it is insufficient. American Trading Co. v. National Fibre & Insula
tion Co. (Del., 192o), 111 Atl. 29o.
The plaintiff agreed to furnish "the coal that the defendant would want
to buy of the plaintiff" for a certain period, at fixed price, etc. Held, the con
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tract was Toid for lack of mutuality of obligation. Wickham & Burton Coal
Co. v. Farmers' Lumber Co. (Iowa, 192o), 179 N. W. 417.
' It is unfortunate that there should be the confusion and diversity that
is found in the authorities as to the validity of so convenient and common
a type of contract as those here involved. The trouble arises from the fail
ure of some courts to realize that there is, of the three used, but one true
criterion by which to test such agreements, namely, the presence of consid
eration. The test should not be for mutuality, nor for certainty and definitcness. While these ordinarily accompany and indicate consideration, they
are not indispensable. There is clear-cut, carefully reasoned authority, both
early and recent, for this view. L'Amoreux v. Gould, 7 N. Y. 349; Jenkins &
Co. v. Anaheim Sugar Co., 247 Fed. 958; Ramey Lumber Co. v. John Schrocder Lumber Co., 237 Fed. 39; Bartlett Springs Co. v. Standard Box Co., 16
Calif. App. 671. But decisions put on the unsatisfactory basis of mutuality
and certainty are numerous. Bailey v. Austrian, 19 Minn. 535, is still cited.
In Joliet Bottling Co. v. Joliet Citizens' Brewing Co., 254 Ill. 215, it was held
that an agreement by the brewery to furnish beer to satisfy the bottling
company's demand was void for lack of mutuality and certainty. In con
trast to the holding of the court in Ayer & Lord Tie Co. v. O. T. O'Bannon
& Co., 164 Ky. 34, that a contract to fumisl1 all the ties the vendor "could
deliver" was good, we have the decision in Hudson v. Browning, 264 Mo. 58,
decided the same year, that a contract to furnish all the ties "his time, mone.v
and effort would permit," was void. See 13 M1ch. L. Rev. 682. Whether
there is consideration in a given case must, of course, depend on the facts
thereof and the intention of the parties as it can be interpreted from the
words they used. If performance as promised by either is dependent merely
upon his wish, whim, desire, convenience, etc., it is illusory and is not suf
ficient consideration for another promise; but if the promise is to buy of
the other and no one else, to buy of that other his business wants, needs, or
requirements for a certain time, it may well be a substantial promise and
therefore good consideration. See W1ll1ston on Contracts, Vol. I, 314, 315.
Gi ving up one's legal right to buy elsewhere is sufficient consideration,
although one has no established business upon which to base a "reasonably
correct estimate." Bartlett Springs Co. v. Standard Box Co., supra. It
would seem that consideration could easily have been found in the Dela
ware case noted above. The Iowa case is probably right in result, not
because there was no mutuality of obligation, but for the reason that such
a promise is insufficient as consideration. See 12 M1ch. L. Rev. 677, for a
discussion of this type of contract as applied to automobile agency agree
ments, and also 18 M1ch L. Rev. 4o9, especially for interpretation of the word
"requirements."
ContractsOffer and AcceptanceS1lenceStatutory Prov1s1on as
to Insurance Pol1cy.A North Dakota statute (Sec. 49o2, C. L. 1913) pro
vides that "Every insurance company engaged in the business of insuring
against loss by hail * * * shall be bound, and the insurance shall take effect
341
from and after twenty-four hours from the day and hour the application for
such insurance has been taken by the authorized local agent of said com
pany," etc. Plaintiff signed and placed in the hands of a local agent o1"
defendant an application for insurance against hail and certain other risks,
the application providing that the insurance should take effect from the day
of its receipt and acceptance, "as evidenced by the issuance of a policy
thereon," at an agency of the company some distance from the location of
the local agent. While plaintiff's application was in transit to the designated
agency there was a loss by hail, and defendant, apparently without knowl
edge of such loss, rejected the application. In an action to recover the insur
ance, held, the statute is valid and defendant liable. Wanberg v. National
Union Fire Ins. Co. (N. Dak., 192o), 179 N. W. 666.
Since an offer creates in the offeree a power by acceptance to enter into
a contractual relation with the offeror, it would seem logically sound that if
the offeror chooses so to mould the power that acceptance may be manifested
by silence or inaction, such silence or inaction should be sufficient to amount
to acceptance. Of course, silence and inaction are equivocal, but under the
circumstances stated it should be deemed logically possible to have accept
ance evidenced thereby, and there are many such cases in the field of unilat
eral contracts where the act on the part of the offeree was inaction. See
W1ll1ston on Contracts, 135. Where the offer contemplates a bilateral
contract, a counter* promise by the offeree, or an unilateral contract in which
the promise is on the side of the offeree, as a practical matter it is easy to
see how a court might look upon the situation somewhat differently. While
a court might not be unwilling to conclude that silence or inaction may
amount to acceptance whereby the acceptor merely acquires rights, unques
tionably as a practical matter more hesitancy would be shown if such accept
ance were also to impose liabilities. There may be situations in which there
is clearly a duty on the part of the offeree to act, so that a failure to act
may sufficiently show acceptance. Wheeler v. Klaholt, 178 Mass. 141 ; Garst
y. Harris, 177 Mass. 72; Austin v. Surge, 156 Mo. App. 286; Turner v.
Machine & F. Co., 97 Mich. 166. So in the case of silence, there may hive
been under the circumstances a duty to speak so that a failure to do so will
amount to an acceptance. In the principal case the statute seems to have
created such duty. Whether the time allowed therein was not so short as
to make the statute invalid may be seriously questioned. Prescott v. Jorts,
69 N. H. 3o5; Royal Insurance Co. v. Bcatty 119 Pa. St. 6; Hobbs v. Whip
Co., 158 Mass. 194; Grice v. Noble, 59 Mich. 515, are instances of mere silence
not amounting to acceptance.
Corporat1onsL1ab1l1ty of Stockholders under a Statute Mak1ng
Them L1able for "Debts" does not Include L1ab1l1ty for Torts.In a suit
on a judgment against a corporation for the wrongful taking of ore from
plaintiff's property brought against a shareholder of the corporation under
a statute providing that each stockholder shall be personally and individ
ually liable for the "debts" of a corporation to the extent of his unpaid
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stock, it was held that "debts" does not include the liability of a cor
poration for a tort, and that even when the claim is reduced to judgment the
shareholder may go behind it and show that the claim is not recoverable
under the statute. Clinton Mining & Mineral Co. v. Bcacom (July 3, 192o),
266 Fed. 621.
The reasoning of the decision is put upon the basis that since this statute
is an increase of the common law liability of the stockholder, and since a
number of terms of clearly defined legal meanings are used in the statute,
the intent of the makers was that a strict construction should be applied,
and the technical meaning of debt as a "sum certain" or "liability arising out
of contract" should be adopted. Since the injury for which judgment
had been given against the corporation was lor a tort, this was not an obli
gation that the corporation could legally incur, and, it is argued, the statutemakers could not have intended to hold shareholders for debts they could
not have conceived the corporation incurring at the time they entered a con
tract relation in becoming subscribers for stock. While it is true that no
presumption may be raised that the stockholder contracted with reference
to the commission of any ultra vires acts on the part of the corporation, it
is certainly true that the intent of the statute is to be remedial and to prevent
shareholders from escaping by means of the corporate fiction from just such
illegal or tortious acts. As to the party injured, the shareholders, to the
amount of their unpaid stock, certainly appear in the light of responsible par
ties. That the above technical construction of such statutes increasing the
common law liability of stockholders has not always been followed appears
in the view of Judge Story in the early case of Carver v. Braintree, 2 Story
(U. S. C. C.) 432, in which he holds that "debts contracted" may be con
strued as "liabilities incurred" and should include all cases of claims, whether
liquidated or unliquidated, arising either ex delictu or ex contractu. This
broad stand has since been disapproved in numerous cases. Doolittle v.
Marsh, 11 Neb. 243, 9 N. W. 54; llcacock v. Sherman, 14 Wend. 58; Cabl:
v. McCuue, 72 Am. Dec. 214. For other cases of this type, see 22 L. R. A.
(N. S.) 256. But in Cohen v. Jay Gun Mfg. Co., 185 Mo. App. 33o, the court
holds, in construing a statute almost identical with that in the principal case,
that a judgment, whether founded on tort or contract liability, is a "debt,"
and a recovery may be had therefor under such a statute. The expression,
"debts unpaid," has been considered sufficient to include the obligation of
a corporation to pay for coal illegally mined and to hold the stockholders of
the offending corporation for its value. Abernathy v. Loftus, 87 Kan. 95.
"Dues" has usually been held to include liability for tort judgments, in cases
of remedial statutes. Henley v. Meyers, 76 Kan. 723. While the more elastic
phrase, "debts and liabilities," is generally construed to meant tort liabilities
as well as those of contract.
DamagesMeasure of, When Injury 1s Caused by a "Permanent
Structure."The defendant so built its railway as to flood 56 acres of the
plaintiffs 138-acre farm. There was a suit and recovery for this. The cause
of action as alleged was based on the building of the grade and the erection
343
of pilings. In the instant case a further recovery was sought for damages
caused by the "improper construction of the defendant's track." It was held,
that since the plaintiff had elected to treat his first suit as a vehicle for re
covery for permanent injury, thus obtaining payment on the basis that the
value of the farm had been impaired for all time, he was "estopped" to bring
suit for subsequently accruing damages to a crop. Thompson v. ///. Central
Ry. Co, (Iowa, 192o), 179 N. W. 191.
The court argued that there was not any distinction in the two causes
of action alleged but even admitting that there was such a distinction, never
theless "the naked fact that a third means for producing these results was
for the first time urged in the second suit will not make the first suit less
effective as an estoppel than if all three means that caused the injury had
been named in both suits." It was decided in Stodgill v. Chicago Railroad,
(188o), 53 Iowa 341, that a railroad was a "permanent structure." In Bennett
v. City of Marion, (19o3), 119 Iowa 473, it was held that a sewer system was
not a "permanent structure." In Uline v. Ry., (1886), 1o1 N. Y. 98, it was
held that a railway embankment was not a "permanent structure." It is gen
erally admitted that for an injury caused by a. "permanent structure" the
measure of damages is the permanent depreciation in the value of the land,
and that there cannot be successive suits for successive losses. Chicago Ry.
v. Loeb, (1884), 118 Ill. 2o3; Highland A. Ry. Co. v. Mathews, (1892), 99
Ala. 24; Jacksonville, etc., Ry. Co. v. Lockwood, (1894), 33 Fla. 573; Allen
v. Macon D. and S. Ry. Co., (1899), 1o7 Ga. 838. The argument in the in
stant case seems to turn on the distinction between (1) a "permanent struc
ture" causing a nuisance, and (2) a structure which, although in itself "per
manent", "may or may not be injurious" in the future. In (1) it is admitted,
as stated above, that there can be but one recovery, although the structure
causes repeated lossesthe recovery being for permanent depreciation. See
cases cited supra. If "permanent structure" is used as in (2), then the re
covery in the first suit is limited to the loss occurring before the trial, and
successive suits may be brought for recurring injuries. Carl v. Sheboygan
Ry. Co. (1879), 46 Wis. 625; Harmon v. Railroad, (1889), 87 Tenn. 614;
Savannah Ry. Co. v. Bourquin, (1874), 51 Ga. 378; Railroad v. Biggs, (1889),
52 Ark. 24o; Canal Corporation v. Hitchings, (1876), 65 Me. 14o; Troy v. Ry.
Co., 3 Foster, (N. H.), 83. See also the Harvey Case, (19o6), 129 Iowa, 465,
a leading case reviewing many of the authorities. The court in the instant
case held that since the trial court in the first suit adopted (1), the plaintiff
in this suit was "estopped", as it said, from resorting to (2). The failure of
the courts to distinguish between these two theories is the cause of much
confusion in the decisions. The instant case illustrates very well how such
confusion may arise. After the case is properly placed in either of the two
above categories it is easy to apply the governing principles, which are simple
and well settled.
DeedsDel1very 1n Escrow to Grantee P delivered a contract under
seal to purchase land of D, but delivery was made conditional upon D obtain
ing an amendment to a bank charter. D, though unable to obtain the amend
ment, nevertheless started a suit at law to recover the purchase money under
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MICHIGAN LAW REVIEW
the contract. P brought the present action to restrain the suits at law. Held,
for P, for a sealed instrument absolute on its face may be shown to have been
delivered conditionally to the grantee by parol evidence. Whitaker v. Lane,
(Va., 192o), 1o4 S. E. 252.
This case is illustrative of a tendency on the part of the American courts
to depart from the rule announced in Whyddon's Case, Cro. Eliz. 52o, that a
delivery to the grantee in escrow, "let the form of the words be what they
may, is absolute and the deed shall take effect as his deed presently", Shepherd'e Touchstone, 59. The former cases in Virginia had abided by the
old rule, but the principal case, after an exhaustive review of the authorities,
discards it as being suited only to the formalism of the medieval mind. The
problem involved was discussed in 18 M1ch. L. Rev. 314, where a similar con
clusion was reached. In Wipfler v. Wipfler, 153 Mich. 18, the Michigan
Supreme Court followed the old rule with great reluctance, but in Phillips
v. Farmers Insurance Co., 175 N. W. 144, commented upon in 18 M1ch. L.
Rev. 425, a conclusion was reached which is difficult to reconcile with the
principle announced in the earlier case. That the vast weight of authority
in America still remains in favor of the rule laid down in Whyddon's Case
cannot admit of a doubt, (16 L. R. A. N. S. 94o), but where the evidence is
clear no good reason readily comes to mind why, as between the parties to
the deed, the principal case should not be followed.
Descent and D1str1but1onEffect of Statute D1s1nher1t1ng One
Conv1cted of K1ll1ng H1s Ancestor.Husband and wife were living in
Kansas. Husband owned land in Oklahoma. Wife was convicted in Kansas
of manslaughter for the killing of husband. Wife brought suit in the Fed
eral Court against the daughter claiming a share of the husband's land in
Oklahoma. The Oklahoma statute provided that "no person who is con
victed of having taken or causes or procures another so to take, the life of
another, shall inherit from such person, or receive any interest in the estate
of the decedent, or take by devise or legacy, or descent or distribution, from
him, or her, any portion of his or her, estate." There was also a statute in
Kansas similar in all material respects to the one just quoted. Held, that the
Kansas statute is a law of inheritance, not a law fixing the status of persons
domiciled within the state, and therefore cannot control inheritance as to
lands in Oklahoma ; and that the Oklahoma statute disqualifies a person from
inheriting only on conviction in the courts of that state, so that the wife,
convicted in Kansas, can inherit an interest in the husband's lands located in
Oklahoma. Harrison v. Moneravie, (July, 192o), 264 Fed. 776.
There is some conflict in the cases on the question whether a murderer
can acquire, by descent or distribution, the title to the property of his victim
and keep it. In Riggs v. Palmer, 115 N. Y. 5o6, a beneficiary under a will had
murdered the testator in order to prevent him from revoking the will and
it was held that the beneficiary, by reason of the crime committed by him,
was deprived of any interest in the estate left by the victim, and so was not
entitled to the property, either as donee under the will or as heir or next of
kin. In the later case of Ellison v. Wescott, 148 N. Y. 149, the court ex
345
plained Riggs v. Palmer (supra), by saying that the decision must not be
interpreted to mean that the will was revoked by the crime, but that the
devisee got the legal title, although Equity would enjoin him from taking any
benefit under it. In other words the court would declare the murderer a con
structive trustee for the benefit of the heir or next of kin. See Ames, Lec
tures on Legal H1story, 31o. In the Estate of Hall, [1914], P. I, a legatee
who was found guilty of manslaughter for killing of testator was held not to
be entitled to take property under the will of his victim. Also in Lundy v.
Lundy, 24 Can. Sup. Ct. 65o, and Perry v. Strawbridge, 2o9 Mo. 621, the mur
derer was held not entitled to take the property of his victim. The ground
of these decisions, as stated by the court in Riggs v. Palmer (supra), is that
"no one shall be permitted to profit by his own wrong, or to found any claim
upon his own iniquity, or to acquire property by his own crime." In other
jurisdictions, however, the slayer has been allowed to take and keep the
property of his victim. See Owens v. Owens, 1oo N. C. 24o; Carpenter's
Estate, 17o Pa. 2o3; McAllister v. Fair, 72 Kans. 533; De Graffenrcid v. Iowa
Land and Trust Co., 2o Okla. 687; Halloway v. McCormick, 41 Okla. 1. Sub
sequent to the two latter decisions, the legislature of Oklahoma enacted' the
statute quoted in the principle case with the obvious purpose of correcting the
rule of those decisions. The decision in the principal case on the Kansas
statute is sound, as that statute applies only to Kansas land, and is an in
heritance statute, rather than one defining capacity. The decision of the case
rests upon the construction of the Oklahoma statute, and, unfortunate as the
result may be, it is submitted that the decision is sound. It was argued that
the conviction by the court of her own domicile fixed her status and dis
qualified her as an heir of the land of her husband in Oklahoma. The fol
lowing analogies might be invoked to support this conclusion : the adoption
cases (Ross v. Ross, 129 Mass. 243), although the court distinguishes this class
of cases; the divorcee's dower cases (Rendleman v. Rendleman, 118 Ill. 257;
Hawkins v. Ragsdale, 8o Ky. 353), no doubt distinguishable for similar rea
sons. It is certainly the general rule that statutes such as the one in the
principal case are territorial only. For example, a statute declaring that a
person who has been convicted of a felony is incompetent as a witness does
not apply to a conviction in another state ; it has reference only to a convic
tion in that state. Sims v. Sims, 75 N. Y. 466; Logan v. U. S., 144 U. S. 263.
The decision in the principal case indicates that statutes of this type, which
have been made necessary by an erroneous decision on the constructive trust
question, should be made broad enough in their terms to apply beyond peradventure to convictions anywhere.
Employer and EmployePersuad1ng One to D1scharge and Not
Employ Another.Under a rule of an association of traders that "on an
employe leaving an employer, who is a member of the association, the em
ployer shall report the same to the secretary, who shall advise all the mem
bers, and no other member shall employ or supply him for twelve months",
after a meeting of the members, the plaintiff's employer was persuaded to
discharge the plaintiff from his employment. In an action against the officials
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MICHIGAN LAW REVIEW
of the association for damages and an injunction to restrain them from inter
fering with him in his calling, held, upon the facts of the case the plaintiff
had no cause of action, since his dismissal was not obtained by any illegal
means. Davies v. Thomas, [192o], 2 Ch. 189.
The right to be employed is a property right for a wrongful interference
with which there is a right of action. This is an accepted doctrine, but the
courts disagree as to what constitutes wrongful interference. The principal
case was decided by a direct application of the principle of Allen v. Flood,
[1808], A. C. 1, 62 J. P. 595, which has become the rule in England. Where
the act of procuring another's dismissal is lawful in itself, said the court in
this leading case, the motive with which it is done is immaterial. The posi
tion of the court is seemingly based on the argument that it cannot be un
lawful to persuade one to do what he has a perfect right to do. Later English
cases seem to say that such interference is actionable if it is done "without
justification or excuse" or illegal means are used. Quinn v. Leathcm, [19o1],
A. C. 495, 85 L. T. N. S. 289; Giblan v. National An1algamated Union, [19o3J,
K. B. 6oo. American courts are divided on what amounts to wrongful inter
ference or illegal means. Some hold that merely advising or inducing a:1
employer to discharge a worker is not unlawful, irrespective of the existence
of an evil intent, thus following Allen v. Flood (supra). Holden v. Cannon
Mfg. Co., 138 N. C. 3o8, 5o S. E. 681 ; Bonsall v. Reagan, 7 Del. Co. Rep. 545.
Another group of American courts, leaning towards the Quinn v. Leathcm
doctrine, hold that even mere persuasion, where employed for the purpose of
interfering with another's actual or prospective employment, is prima facie
an invasion of such other's legal rights, which must be justified by showing
that it was employed in the exercise of an equal or superior right. Moran
v. Dunphy, 177 Mass. 482, 83 Am. St. Rep. 289; Berry v. Donovan, 188 Mass.
353; Brennan v. United Hatters of North America, 73 N. J. Law 729. This
latter rule has been applied especially in the case of interference by labor
unions. After all, though, whether the interference is wrongful or not must
necessarily depend on the special facts in each particular case. The opinions
both in Allen v. Flood (supra) and in the instant case show that the judges
went upon the specific facts involved in determining whether legitimate per
suasion or coercion, intimidation or undue influence were used in securing
the discharge of the worker. It is all a matter of fact : what may seem on
the surface legitimate persuasion may in truth, under the circumstances,
amount to coercion and intimidation. Hushic v. Griffin. 75 N. H. 345, 74 At!.
595. Again, what may appear to be coercion may in fact be a justifiable in
terference, considering the interests involved. It may depend also on "the
eye of the beholder". Not all of the judges in Allen v. Flood (supra) were
agreed that the interference there was lawful, and many a person might on
the facts of the principal case find an element of threat and coercion lurking
in the background of the peaceful meeting at which the employer was "per
suaded" to discharge the plaintiff here. As one judge in Quinn v. Leathcm
(supra) put it: "The doctrine of Allen v. Flood can be carried' so far as to
make the most objectionable act lawful". We must consider all the facts and
interests involved. The soft "persuasion" of the labor union's representative
347
is often backed by the silent threat of a strike. Although some American

cases declare that the tendency is to limit the rule of Allen v. Flood to acts
of an individual (Allis-Chalmers Co. v. Iron Moulder's Union, 15o Fed. 155) ,
the instant case draws no difference between inducements by individuals and
by combinations, except that it says "it is much easier to infer pressure or
coercion in the case of a number of persons."
Ev1denceBurden of ProofRece1pt 1n Full.In an action to recover
the balance due on goods sold to the defendant by the plaintiff, the former
pleaded payment and set out in his answer a receipt in full given by the plain
tiff and a letter acknowledging full payment of the indebtedness. The plain
tiff filed a reply alleging that the receipt was given and the letter written
through mistake, and that payment had not in fact been made. Held, the
burden of proving payment rests upon the defendant, and this burden is not
shifted or affected by the affirmative allegations of the plaintiff that a mis
take had been made in giving the receipt and in writing the letter. Illinois
Steel Bridge Co. v. Wayland, (Kans., 192o), 192 Pac. 752.
The term "burden of proof" in civil cases is frequently used to signify
two wholly different duties : first, the duty incumbent upon a party to estab
lish by a preponderance of evidence those ultimate facts which he must allege
in order to show his cause of action or his affirmative defense; secondly, the
duty of going forward with the evidence in order to prevent a verdict in
favor of the opponent because of the latter's then existing preponderance of
evidence. Authorities generally hold that the party pleading payment has the
burden of proof in the first sense above given, i. e., in order to take advan
tage of this affirmative defense he must prove by a preponderance of evidence
the ultimate fact of payment as alleged. When a party introduces a receipt
in full as evidence of payment the courts are not in accord as to where the
"burden of proof" lies. Their disagreement is due primarily to two causes:
first, a failure on the part of the courts to designate or define clearly the
sense in which the term "burden of proof" is used; secondly, a difference in
opinion as to the substantive, effect of evidence of a receipt in full. State
ments are often found that a party attempting to explain or impeach a re
ceipt in full has the "burden of proof", and these seem to be correct when by
"burden of proof" is meant the duty of going forward with evidence in
order to offset the "prima facie" defense of the party pleading payment.
Ramsdell v. Clark, 2o Mont. 1o3; Guyctte v. Bolton, 46 Vt. 228. Some courts,
however, apparently wishing to give a receipt in full exceptional force as
evidence, hold that unless the party disputing the receipt shows by a pre
ponderance of evidence that it is invalid as such, "the receipt must have its
prima facie effect." Levi v. Karrick, 13 Iowa 344; Winchester v. Grosvenor,
44 Ill. 425; Neal v. Handley, 116 Ill. 418. On principle, the latter doctrine is
illogical, since the burden of proof in the sense of a duty to prove the truth
of certain facts is dependent on the allegations properly set up in the plead
ing and not on matters introduced in evidence. The better rule, followed in
the principal case, is to the effect that one pleading payment has the burden
of proving the ultimate fact of payment, and that this burden is not shifted
34
MICHIGAN LAW REVIEW
by either pleading or introducing evidentiary matter, and this is in accordance

with the elementary principle that the burden of proof is ordinarily deter
mined by the issues properly raised by the pleadings. Mitchell v. Mitchell,
18 \Vkly. Note Cas. (Pa.) 439; Shrader v. U. S. Glass Co., 179 Pa. 623;
Terryberry v. Woods, 69 Vt. 94. In the principal case the incorrect pleading
accentuated the difficulties of placing the "burden of proof". The defendant,
besides setting up the ultimate fact of payment, also pleaded evidentiary
matters, setting out the receipt and the letter acknowledging payment in full.
The plaintiff in his reply, besides denying that the debt was in fact paid,
which raised the real issue in the case, undertook to confess and avoid the
evidentiary matter alleged by the defendant in support of the allegation of
payment. But incorrectly pleading evidentiary matters could not property
affect the burden of proving the ultimate facts in issue in the case. The
minority opinion fails to distinguish between substantial confession and avoid
ance of the ultimate fact of payment and a formal confession and avoidance
of evidentiary matters improperly alleged in the answer in support of the
defense.
Income TaxInher1tance Tax Pa1d Under the New York Transfer
Act 1s Not Deduct1ble from Net Income 1n Comput1ng Income Tax
L1ab1l1ty.Plaintiff sued for the amount overpaid as income tax which
should have been deducted from the amount of the entire tax, in case an
inheritance tax paid on the estate inherited from her father is within the
clause of the act of Congress providing that there shall be allowed as deduc
tions from net income, "All national, state, county, school, and municipal
taxes, * * *". Held, however, that a collateral inheritance tax levied under
the laws of the state of New York is paid for the privilege of transmitting
the property by will, and does not constitute such an item as is allowable as
a deduction in the return of the beneficiary thereof. Prentiss v. Eisner,
(June 16, 192o), 267 Fed. 16.
This application of the law of inheritance to the question of income tax
returns brings up the entire subject of the nature of death duties. At common
law no right to will real property existed, and, except as this result was
achieved by means of uses, no such right was exercised until the Statute of
W1lls, (32 Henry VIII). Hence, this right was entirely statutory and sub
ject to any restrictions that legislatures might see fit to impose. Thus all
sorts of inheritance taxes,legacy taxes, stamp duties, privilege taxes, have
been generally regarded as taxes, not upon the corpus of the property that
has been devised, but upon the right to transmit or receive the property by
devise or will. Knowlton v. Moore, 178 U. S. 41, 2o Sup. Ct. 747; State v.
Dunlap, 28 Idaho 784, 156 Pac. 1 141 ; In re Terry's Estate, 218 N. Y. 218, 112
N. E. 931. For a general treatment see 33 L. R. A. (N. S.) 6o6. In the
principal case the particular question is whether the tax is levied upon the
power to transmit or upon the privilege to receive property by devise. If a
tax upon the privilege to receive property by inheritance, then plaintiff, as
recipient of the inheritance, has been taxed and should be able to claim an
exemption, but if the tax is upon the power to transmit, then the tax has been
349
paid by the executor and plaintiff can claim no exemption. The principal case
follows the decision of United States v. Perkins, 163 U. S. 625, 16 Sup. Ct.
1o73, which, in translating a similar statute, decided that such a tax is not a
levy upon property, but is strictly a tax upon the right to dispose of property
by .will. The reasoning of the decision is that the statute creates a lien upon
the property at the moment of the testator's death, and the right of the
legatee extends only to the property remaining after deducting the tax. Matter
of Penfold, 216 N. Y. 163. That this is the more probable theory of "death
duties" appears from the fact that it was the right to will rather than the
right to receive by will that was granted by statute. In general, the
statements of the courts imply that such taxes are upon the "right of succes
sion" but the distinction of the present case has seldom been involved, so
that the statements of the courts characterizing this right are nothing but
dicta. Corvin v. Baldwin, 92 Conn. 99, 1o1 Atl. 834; In re Cupple's Estate,
199 S. W. 556; Walker v. People,
Colo.
, 171 Pac. 747. See also 33
L. R. A. (N. S.) 6o6. While the majority of the courts that really consider
this point seem to support the principal case, State v. Dunlap, 28 Idaho 784,
156 Pac. 1 141 ; In re Terry's Estate, 218 N. Y. 218, 112 N. E. 931 ; In re Wat
son's Estate, 174 N. Y. 191, a number of cases adopt an opposite theory. In
cases involving legacy taxes in contradistinction to general inheritance taxes,
the view is general that the legatee pays the tax rather than the executor,
since any other view would require that all legacy taxes would have to be
paid from the residual estate. Matter of Gihon, 169 N. Y. 443, 63 N. E. 561.
Corvin v. Baldwin, 92 Conn. 99, 1o1 Atl. 834, implies a different view from
that of the principal case in its intimation that jurisdiction of the court for
the payment of general inheritance taxes may be secured by getting jurisdic
tion of the persons of the legatees. Matter of Gihon, 169 N. Y. 443, 63 N. E.
561, supports the view that the levy is upon the power to receive rather than
upon the power to devise by will. The latest appearance of a doctrine con
trary to the principal case is in Henson v. Monday, (Oct. 23, 192o), 224 S. W.
1o42, in which the court takes the general stand that the nature of general in
heritance taxes of this character is a levy upon the legatee's privilege to
receive rather than a tax upon the power to transmit.
InsuranceAbsolute Phys1cal Inas1l1ty not Necessary for "Total
D1sab1l1ty."It was stipulated in an accident insurance policy that for the
loss of either foot by severance resulting from injury the defendant would
pay a certain specified sum if the injury "shall independently and exclusively
of other causes, immediately, wholly, and continuously disable and prevent
the insured from performing any and every kind of duty pertaining to his
occupation". The plaintiff sought a recovery for the loss of a foot the ampu
tation of which was made necessary by an injury. He claimed compensation
for a certain specified period on the ground of "total disability". The de
fendant resisted the claim on the ground that the plaintiff, during this certain
period of alleged "total disability", was not "totally" disabled; that he had
made two trips to New York where he "made an effort" to buy goods, assisted
by his wife. His occupation was stated in the policy as "manager with office
35Q
MICHIGAN LAW REVIEW
and traveling duties". Held, that the plaintiff could recover. Clark v. Trav
elery Ins. Co., (Vt., 192o), 111 Atl. 449.
It appeared from the evidence in the case that although the plaintiff made
the two trips to New York, he did so without due regard for his health, and
experienced considerable bodily pain. That being the case, the decision of
the court was not inconsistent with the proposition that an attempt to perform
some of the duties of one's occupation, when such an attempt is an indiscre
tion or an error of judgment, will not defeat a claim of total disability.
United Casualty Co. v. Ferryman, 2o3 Ala. 212. It must also be borne in mind
that the courts in these insurance cases show a tendency to be very liberal
toward the insured and to construe the language of the policy against the
insurer on the ground that he chooses the language of the contract. The in
stant case is in accord with other authorities on this question of what amounts
to total disability, although in some of the cases the distinction between par
tial and total disability is very finely drawn. The distinction seems to turn
largely on the clause in the policy defining the application of the indemnity
to the injury and to the occupation, and defining the disability. In the follow
ing cases the clauses in the policies were the same as that in the case at bar
and yet a recovery was denied; Spicer v. Commercial Mutual Accident Ins.
Co., 4 Pa. Dist. Rep. 271; Gracey v. Peoples' Mut. Accident Ins. Asso., 21
Pitts. L. J. N. S. 25; Ford v. U. S. Mut. Accident Relief Co., 148 Mass. 153;
Bean v. Travelers' Ins. Co., 94 Cal. 581 ; Knapp v. Preferred Mutual Accident
Association, 53 Hun (N. Y.) 84; Stevens v. Peoples' Mutual Accident Asso.,
15o Pa. 132. In the following cases a recovery was allowed:. Younq v. Trav
elers' Ins. Co., 8o Me. 244; Baldwin v. Fraternal Accident Ass'n, 31 Misc. Rep.
124; Lobdill v. Laboring Men's Mutual Aid Ass'n, 69 Minn. 14; Turner v.
Fidelity and Casualty Co., 112 Mich. 425. It appears from an examination of
the cases that the courts of last resort are not in complete accord, but the
weight of authority seems to be that the insured is "totally disabled" within
the meaning of the policy if he is unable, with prudence and a due regard for
his physical welfare, to perform the substantial and material acts necessary
to carry on his occupation. Even though the insured is able to perform a
few occasional and incidental acts pertaining to his occupation, yet if he is
unable to perform the substantial and material portion of his work he is con
sidered as "totally disabled". See 4 Cooley's Br1efs on Insurance, 329o. As
the court in the instant case very well points out, the provision of disability
in such a policy cannot be given a literal construction. If it were given such
a construction the company could always avoid liability unless the insured
lost his life or reason as a result of the injury, for a man can always transact
some parts of his business if he is possessed of his mental faculties. The
term "total disability" then must be given a reasonable interpretation depend
ing in a great measure upon the circumstances of each particular case. 4
Cooley's Br1efs on Insurance, 3288.
Intox1cat1ng L1quorsStatutory Forfefture of Automob1le Carry1ng
L1quorDue Process.Claimant intrusted his automobile to his chauffeur
to take to a garage in Washington, D. C. The chauffeur stole the machine
35 1
and used it illegally to carry liquor in Virginia, where it was seized and for
feited under a Virginia statute (Acts 1918, p. 612). Held, the forfeiture was
valid, notwithstanding the owner was unaware of the illegal use of the auto
mobile. Buchhoh v. Commonwealth (Va., 192o), 1o2 S. E. 76o.
Two conflicting views stand out in cases involving statutory forfeiture
of chattels for illegal use. The one is that the necessity of the situation
demands a liberal construction of the statutes involved, to the end of giving
efficacy to the law. U. S. v. Stowell, 133 U. S. I ; U. S. v. One Saxon Auto
mobile, 257 Fed. 251 ; U. S. v. Two Bay Mules, 36 Fed. 84. The other view
is that the usual strict construction of criminal statutes should be adhered
to. U. S. v. One Cadillac Eight Automobile, 255 Fed. 173; State v. Daois
(Utah, 1919), 184 Pac. 161. The courts sustaining the former construction
favor the view that such proceedings are in rem, the chattel itself being the
wrongdoer, and that therefore the animus of the owner is immaterial. U. S.
v. Two Barrels of Whisky, 96 Fed. 479. But in other instances it has been
considered that the proceedings are criminal in their nature and directed
against the owner of the chattel. Boyd v. U. S., 116 U. S. 616. In this
view of the matter, the guilt or innocence of the owner is, of course, con
trolling. In the principal case the court adopts the liberal view of the statute,
but does not go so far as to declare that the forfeiture would have been
valid had the custody and possession of the machine been taken from the
owner by a thief, without the owner's knowledge. Such was not the fact
in the instant case because, although the chauffeur had stolen the car under
the law of the District of Columbia, still he had originally been entrusted
with the custody by the owner, who thereby assumed the risk of subsequent
illegal operation. It has been held that such statutes as the one here in
question do not effect a taking of property without due process of law, but
are within the police power of the state, provided the parties interested are
given notice and have an opportunity to he heard in a judicial proceeding.
Kansas v. Ziebold, 123 U. S. 623. The justification for the holding in the
principal case, which is unquestionably harsh, would seem to lie in the appar
ent inability to meet a situation of great public concern otherwise than by
sanctioning hardship in certain individual cases in the interest of the greater
public welfare.
MortgagesConveyance Subject to MortgageExtens1on of T1me to
GranteeMeasure of D1scharge.Mortgagor conveyed premises to grantee,
who took subject to the mortgage. Mortgagee extended time to grantee by
agreement without consent of the mortgagor. In a suit for foreclosure,
held, the mortgagor as a surety is completely released from personal liabilitv.
regardless of the value of the land, and the mortgagee cannot recover a
deficiency judgment against the mortgagor. Braun v. Crew et ux. (Cal., 192o),
192 Pac. 531.
When, upon conveyance of the mortgaged premises, the grantee of the
mortgagor assumes payment of the mortgage, the grantee becomes person
ally liable for the whole debt, lohns v. Wilson, 18o U. S. 44o; and as is
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MICHIGAN LAW REVIEW
often said, becomes the principal debtor, and the mortgagor a surety for
that debt. George v. Andrews, 6o Md. 26; Poe v. Dixon, 6o Ohio St. 124.
As in other cases of suretyship, an extension of time made by the mortgageecreditor to the grantee-principal, without the consent of the mortgagorsurety, will release the mortgagor. Union Mutual Life Ins. Co. v. Hanford,
143 U. S. 187. And this release is complete from all liability for any of the
mortgage debt. Calvo v. Davies, 73 N. Y. 211. On the other hand, when
the grantee does not assume the mortgage debt, but takes the premises sub
ject to the mortgage, he is under no personal liability for that debt. Elliot
v. Sacketl, 108 U. S. 132; Fiske v. Tolman, 124 Mass. 254; Metropolitan Bank
v. St. Louis Dispatch Co., 149 U. S. 436. In such a case the land remains
liable, and becomes, moreover, the primary fund for the payment of the debt.
McNaughton v. Burke, 63 Neb. 7o4; Lamka v. Donnelly, 163 la. 255. Even
here the land is considered the principal debtor and the mortgagor becomes
the surety for the payment of the mortgage debt, with all the incidents and
equities of a surety, Sime v. Lewis, 112 Minn. 4o3; or at least a quasi-surety.
Gottschalk v. Jungmann, 79 N. Y. Supp. 551. But clearly the mortgagor is
a surety only up to the value of the land ; beyond this he is still the principal
debtor. Trovers v. Dorr, 6o Minn. 173; Murray v. Marshall, 94 N. Y. 611.
Applying the doctrine of suretyship, that an extension of time given by the
creditor to the principal without the consent of the surety discharges the
surety, the mortgagor is discharged by an extension given to the grantee by
the mortgagee. Mctzger v. Nova Realty Co., 214 N. Y. 26; Trovers v. Dorr,
supra; Murray v. Marshall, supra. But this release is only to the extent that
the mortgagor is a surety, the value of the land at the time of the release.
Spencer v. Spencer, 95 N. Y. 353 ; Bunnell v. Carter, 14 Utah 1oo. Refusing
to extend the release this far, the court in North End Savings Bank v. Snow,
197 Mass. 339, states the rule to be- that the release is only for the amount
to which, by reason of the extension, the security falls short of the sum due
on the note. In the principal case the court applied a statute providing in
substance that if the creditor impairs or suspends his remedies or rights
against the principal the surety is completely exonerated. The question
whether or not this statute was but merely declaratory of the common law
was not considered by the court. It is submitted that there was a misappli
cation of the statute and an extension of it far beyond its proper scope. Tho
court ignored the rule so aptly stated in Murray v. Marshall, supra, that the
mortgagor can be discharged only so far as he is a surety; he holds that
position only up to the value of the land, and beyond that is still the prin
cipal debtor without any remaining equities.
Mun1c1pal Corporat1onsMun1c1pal1ty can Act beyond Boundar1es
only when Empowered.A tax district, bordering on the water front, had
power given by statute to make improvements "within the district." It was
proposed to create a park, including a pleasure pier, 5o feet of which was to
lie within the boundaries of the district and to extend 75o feet beyond the
exterior boundary lines of the district into the ocean. A taxpayer seeks to
353
enjoin the issuance of bonds for such purpose. Held, that an injunction
should be granted on the ground that a municipality is competent to act
beyond its boundaries only in cases in which it is so empowered by legis
lative authority, or where the urgency of extrinsic expediency or necessity
demand. Mulville v. City of San Diegc (Cal., 192o), 192 Pac. 7o2.
The statute in the present case gave the district no authority to act
beyond its boundaries. Since a municipal corporation is an agency of the
state for local government, it is as a general rule restricted to its corporate
limits in the exercise of its corporate powers. Cooley on Mun1c1pal Cor
porat1ons, 139; Houghton v. Huron Copper Mining Co., 57 Mich. 547; Sweitser v. Harrisburg, 1o4 Va. 533. The taxing power of a municipality does not
extend beyond its boundaries. Gilchrist's Appeal, 1o9 Pa. St. 6oo. The cor
poration boundaries usually mark the limit for the exercise of the police power
by the municipality. Cooley on Mun1c1pal Corporat1ons, 314; Gcss v. Corpo
ration of Greenville, 36 Tenn. 62. Where the municipality has power to con
struct a sewer it may, as an implied incident to such power, extend the sewer
beyond its boundaries when necessary or manifestly desirable. Coldwater v.
Tucker, 36 Mich. 474; Shreve v. Town of Cicero, 129 Ill. 226; Cochran v. Vil
lage of Park Ridge, 138 Ill. 295. In the case last cited the court said that a
sewer extending outside the corporate limits was for the improvement and
benefit of the municipality alone, and being here necessary to the municipality
it was held to be a municipal improvement. Should such an argument be
applied to the principal case, it would seem that the construction of the pier
was not an improvement of the ocean, but was for the benefit of the munici
pality ; inasmuch as the district was created for a pleasure resort, it might
also be said to be a necessary improvement. Dillon is of the opinion that
there are purposes for which a corporation may, without special grant, pur
chase and hold extra-territorial lands, as for a pest-house, cemetery, park,
and like objects of municipal character. 3 D1llon on Mun1c1pal Corpora
t1ons [5th Ed.], 1567. The Wisconsin court has held that a municipality
may maintain and operate a stone quarry outside of the city limits for munici
pal purposes. A classification that is given in this case appears to reconcile
the many varied decisions better than any other that has been suggested. The
distinction is that municipal authority in a governmental sense cannot be
exercised outside the limits of the municipality; while municipal authority
used in the mere exercise of a business function can be exercised outside of
the limits of the municipality, providing such function comes within the
scope of the city's corporate authority. Schneider v. City of Menasha, n3
Wis. 298. On the basis of the above distinction, it would appear that tin:
principal case might well have been decided differently.
Mun1c1pal Corporat1onsUndertak1ng Establ1shments May be Con
trolled and Proh1b1ted under Pol1ce Power.In an action brought by the
proprietor of an undertaking establishment to enjoin the enforcement of an
ordinance prohibiting the locating of such establishments outside of certain
zones, held, the injunction must be denied because this ordinance comes
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MICHIGAN LAW REVIEW
within the well-recognized police power of the state, inasmuch as one of the
purposes of the organization of our government is to secure to men the
"inalienable right" of "pursuing and obtaining safety and happiness." Brown
v. City of Los Angeles (Cal., 192o), 192 Pac. 716.
The police power of the state is that inherent or plenary power which
enables the state to prohibit all things hurtful to the comfort, safety and
welfare of society, and may be termed "the law of overruling necessity."
Town of Lake View v. Roschill Cemetery Co., 7o Ill. 191. Anything which
is hurtful to the public interest is subject to tl1e police power, and may be
restrained or prohibited in the exercise of that power. Harmon v. City of
Chicago, 11o Ill. 4oo. Municipalities are allowed a greater degree of legis
lation in this direction than in any other. Gundling v. City of Chicago, 176
Ill. 34o. An ordinance for the preservation of the public health, prohibiting
the interment of dead human bodies within specified limits of a city, is valid.
Austin v. Austin City Cemetery Association, 87 Tex. 33o. A city can regu
late hospitals for the insane under its police power because this is for the
protection of the public health and safety. Billboard regulations that pro
tect public safety, health and morals are valid, but those regulations that arc
made only for aesthetic purposes are invalid. Com. v. Boston AdvertisUtg
Co., 188 Mass. 348. Chicago v. Gunning System, 214 l1l. 628. There seems
to be little doubt that the right to secure to men the "inalienable right" of
"pursuing and obtaining safety and happiness" would, from the public point
of view, include the right to prevent nuisances. An undertaking establish
ment is not a nuisance per se. But there are numerous businesses not nui
sances per sc that a city can exclude from residential districts because of
their pronencss to become injurious to health, offensive to the senses, or
an obstruction to the free use of property. City of St. Paul v. Kesslcr
(Minn.), 178 N. W. 171. Lord Harchvicke's view in Anonymous, 3 Atk.
75o, that the fears of mankind, though they may be reasonable ones, will not
create a nuisance, is widely disputed. Stotler v. Rochelle, 83 Kan. 86. In
Beissel v. Crosby (Neb.), 178 N. W. 272, the court held that, an undertaking
establishment was a nuisance that could be enjoined. An undertaking estab
lishment may be enjoined as a nuisance where it appears that noxious odors
and gases will permeate the neighborhood. In the recent case of City of
St. Paul v. Kcssler, supra, the court held that an ordinance prohibiting funeral
homes in residence districts was valid under the police power expressly
given in the city's charter. See 19 M1ch. L. Rev. 191 ; 13 M1ch. L. Rev. 160.
Negl1genceConcurrent ActsEff1c1ent Interven1ng Cause.Where
the defendant negligently allowed his sidewalk elevator to remain unguarded
and a third person negligently operated it, injuring the plaintiff, it was held
that the act of the third person was not legally an efficient intervening cause.
Rosenholz v. Frank G. Shatluck Co. (N. Y., 192o), 183 N. Y. S. 23.
It is universally settled that if the concurrent or successive negligence
of two persons, combined together, results in an injury to a third person,
he may recover damages of cither or both, and neither can interpose the
355
defense that the prior or concurrent negligence of the other contributed to

the injury. Ry. Co. v. Callaghan, 56 Fed. 988; Lane v. Atlantic Works, 1o7
Mass. 1o4; Weik v. Lander, Admr., 75 Ill. 93; Johnson v. Northwest Tel.
Exch. Co., 48 Minn. 433. See also 1 Thomp. Keg. [2nd ed.], Sec. 75, and
cases there cited. As a test of concurrence many courts lay down that if
the injury could not have happened in the absence of either the defendant's
negligence or that of the third person, then the two are concurrent causes.
Quill v. Ry. Co., 11 N. Y. S. 8o, aff. 126 N. Y. 629; Pastene v. Adams, 49
Cal. 87; Martin v. Iron Works, 31 Minn. 4o7; Mahar v. Steuer, 17o Mass.
454; Gonzales v. City of Galveston, 84 Tex. 3; Snydor v. Arnold, 122 Ky. 557.
As stated by the court in Johnson v. Northwest Tel. Exch. Co., supra, "The
negligence of each is a proximate cause where the injury would not have
occurred but for that negligence." Some of the federal courts, however,
have not given the rule such a liberal interpretation. Cole v. German Sav
ings & Loan Soc., 124 Fed. 113; Mella v. Northern Steamship Co., 162 Fed.
513; Jennings v. Davis, 187 Fed. 7o3; Ry. Co. v. Gclvin, 238 Fed. 14. But
sec Ry. Co. v. Callaghan, supra, and Gas & Elec. Co. v. Nicholson, 152 Fed.
389. As was decided in the principal case, the question whether the defend
ant's negligence was the proximate cause of the injury is for the jury. And
by the weight of authority it would seem that the defendant's negligence
must be considered proximate to the result if the jury find that it contrib
uted in any degree thereto, regardless of the relative degree of culpability
of the third person. Eads v. City of Marshall, 29 S. W. (Tex. Civ. App.)
17o (no official report) ; Ry. Co. v. McWhirter, 77 Tex. 356; Griggs v. Fleckenstcin, 14 Minn. 81; McCauley v. Noreross, 155 Mass. 584; Hunt v. Ry. Co.,
14 Mo. App. 16o; Tel. Co. v. Gasper, 123 Ky. 128; Lundeen v. Elec. Light Co.,
17 Mont. 32.
Searches and Se1zuresConst1tut1onal LawEv1dence.D was con
victed of having intoxicating liquors in his possession for the purpose of
sale, in violation of a statute. Police officers illegally searched D's residence
without a warrant and the liquor found there was used as evidence against
him, despite objections to its admissibility made at the trial. Held, it was
error, for evidence illegally obtained is admissible in evidence. Youman v.
Commonwealth (Ky., 192o), 224 S. W. 86o.
"It has long been established," writes Professor Wigmore in his work
on Ev1dence, page 2955. "that the admissibility of evidence is not affected
by the illegality through which the party has been enabled to obtain the evi
dence," and until recently at least this principle has been followed with
almost unanimity by the courts. See notes in L. R. A. 1915 B 834, and
34 L. R. A. (N. S.) 59- Any doubts cast upon this doctrine in Boyd v.
United States, 116 U. S. C16. were seemingly dispelled in Adams v. New
York, 192 U. S. 585, where the orthodox rule was broadly announced and
followed. However, the Supreme Court had become dissatisfied with its
position and its inevitable result in encouraging such unlawful seizures, and
when the question next came before it in Weeks v. United States, 232 U. S.
356
MICHIGAN LAW REVIEW
383, extricated itself by formulating the rule that evidence unlawfully secured
will not be admitted if application be made before its return, and that the
rule announced in the Adams case is applicable only when the objection is
made for the first time upon the trial; and this theory has been followed to
its logical conclusion in Silverstone Lumber Co. v. United Slates, 251 U. S.
385. Accord, People v. Marxhausen, 2o4 Mich. 559. In a well-considered
case, Williams v. State, 1oo Ga. 511, Lumpkin, J., speaking for the court,
promulgated the rule that the admissibility of evidence was determined inde
pendently of the method by which it was obtained, but evidently suffered a
change of heart when Evans v. State, 1o6 Ga. 519, involving admissibility of
evidence unlawfully obtained by search of person without warrant, was before
him, after a futile attempt at reconciliation with the former case; and in
Underwood v. State, 13 Ga. App. 2o6, the appellate court followed Evans v.
State, supra. The rule declaring illegally obtained evidence inadmissible,
having in its favor the salutary effect of discouraging unlawful seizures, com
mends itself to the writer, but see 9 IIl. L. Rev. 43 for the contrary view.
TrustsSav1ngs Bank Depos1ts 1n Trust.A deposit in a savings
bank was made in the name of the depositor "as trustee" for a named bene
ficiary. The donor retained possession of the bank book until her death and
no one was informed of the trust during her lifetime. In an action by the
beneficiaries to enforce the trust, held (one justice dissenting), when not
refuted by a contrary intent a deposit in trust raises a presumption of trust
with which retention of the bank book is not inconsistent. The trust origi
nates with the donor's act and notice to the beneficiary is not necessary.
Cazallis ct al. v. Ingraham et al. (Me., 192o), 11o Atl.359.
In order to create a trust in personalty, the owner must have the requi
site intent and there must be a declaration of such intent. Where money is
deposited in a bank in trust for a third person, the intent may be shown in
various ways. It may be by notice to the donee, or sometimes to a third
person, by delivery of the bank book, by declarations to the donee or third
parties, or by other circumstances connected with the deposit or the depos
itor's relations to the donee. Alger v. North End Savings Bank, 146 Mass.
418; Matter of Holligan, 82 Misc. (N. Y.) 3o; Conn. River Savings Bank v.
Albee's Estate, 64 Vt. 571; Matter of Davis, 119 App. Div. (N. Y.) 35; Bath
Savings Bank v. Hathorn, 88 Me. 122; Meriga v. McGonigle, 2o5 Pa. 321;
Robinson v. Appleby, 168 App. Div. (N. Y.) 5o9. But other circumstances
may show equally well that there was no intent to make a gift. The deposit
may be to evade taxation laws or legacy duties. Conn. River Savings Bank v.
Albee's Estate, supra; to evade the statute of wills, Nutt v. Morse, 142 Mass.
I ; to evade laws limiting the amount of savings deposits, Brabrook v. Boston
Five-Cent Savings Bank, 1o4 Mass. 228; or to take advantage of a higher
interest rate on small deposits, Weber v. Weber, 9 Daly (N. Y.) 211. In
New York it is declared that a mere deposit in a savings bank by one person of
his own money, in his own name as trustee for another, creates only a tenta
tive trust which is revocable at will until the depositor dies or completes the
357
gift in his lifetime by some unequivocal act or declaration, such as delivery

of the pass book or notice to the beneficiary. Matter of Totten, 179 N. Y.
112; Stockert v. Dry Dock Sav. Inst., 155 N. Y. App. Div. 123. In Massachu
setts it appears there must be notice to the benelciary to perfect the trust, even
though a clear intent may be expressed in other ways. Clark v. Clark, 1o8
Mass. 522; Cleveland v. Hampden Sav. Bank, 182 Mass. 11o. As is pointed
out in the case of IValso v. Latterner, 14o Minn. 455 (in which it is said that
the trust is not complete while the donor retains possession of the bank
book), the conflict between the New York and Massachusetts decisions is not
over the validity of such a trust, but wholly over what is sufficient evidence to
make a question for the jury on the issue of the intention of the depositor
In New Jersey the doctrine of Matter of Totten, supra, is condemned as
violating the statute of wills. Nichlas v. Parker, 71 N. J. Eq. 777. The
rule of the Maine court is not in accord with the New York, Massachu
setts or New Jersey rules, and may be stated as follows : a deposit in a bank
in trust for another raises a presumption that a trust was intended, and
when not refuted by the showing of a contrary intent creates a trust which
is completed and irrevocable. Retention of the pass book is not inconsistent
with such intent, neither are subsequent withdrawals inconsistent in the
absence of evidence showing the disposition made of same. This rule would
seem to be an extension of the doctrines previously announced by the Maine
Supreme Court. Barker v. Frye, 75 Me. 29; Bickford v. Mattocks, 95 Me.
547; Savings Bank v. Fogg, 113 Me. 249; Bath Savings Bank v. Hathorn. 88
Me. 122. See article by Bogert on "Creation of Trusts by Means of Bank
Deposits," 1 Cornell L. Quar. 159. See also Scott's Cases on Trusts, p.
224, note.
BOOK REVIEWS
The Law of Contracts. Samuel Williston, Weld Professor of Law in Har

vard University. New York. Baker, Voorhis & Co., 192o. In four
volumes. Vol. I, pp. xxiii, 1155, Vol. II, pp. xxi, 1157-2329.
Considered from almost any angle this is easily the best treatise on the
law of contracts in our language.
Two outstanding features of the book are defended in the preface. "In
cluded within it are large portions of what is contained in works oh Vendor
and Purchaser, Sales of Personal Property, Negotiable Instruments, Agency,
Bailments, Carriers, Landlord and Tenant, Insurance, Suretyship, Equity,
Master and Servant, Quasi-contract, Damages, Evidence. * * * The law of
contracts * * * after starting with some degree of unity now tends to fall
apart. * * * It therefore seems desirable to treat the subject of contracts as
a whole, and to show the wide range of application of its principles." This
is a good text, but herein is not the proper place for a homily on the rarely
other than accidental hyper-departmentalization of our legal thinking. Many
will regret that Professor Williston did not keep his work within the limits
of greater convenience in view of the number of other excellent treatises on
the collateral subjects mentioned but all will recognize that he was confronted
with the necessity of choosing between two (under our present classification)
necessary evils, whatever may be thought of the wisdom of the choice which
he has made.
The second aspect of the work defended in its preface is the amount of
space devoted to legal analysis and criticism. This needs no defense. It, to
the contrary, is the most valuable feature of the workits principal and
wholly sufficient justification. Eliminate it and the book would approximate
the encyclopaediac vintage of which we suffer from no serious shortage.
Here is a text-book at once comprehensive and critical to a degree not infre
quently attempted but rarely attained.
The author has adhered to familiar terminology in stating the results of
his analysis of the cases. Of this something has been,1 much may be, and
more will be, said. But two observations will be indulged in here. It is be
lieved that the value of the book would have been added to if, by a judicious
use of a more incisive terminology, sharper distinctions had been made in
questions involving the difference between evidential as opposed to operative
facts and between facts as opposed to their legal consequences. So also in
situations where rights and powers need differentiating and factoring. How
ever, the author might have gone to the opposite and more unfortunate ex
treme. He might have so busied himself in merely translating familiar
notions into a novel terminology as to have had left neither time nor energy
1 See review by Professor Walter Wheeler Cook, 20 Colum. L. Rev. 716, and by
Professor Arthur L. Corbin, 29 Yale L. Jr. 942.
BOOK REVIEWS
359
for analysis. He has analyzed whatever may be thought of his analysis. In

hunting for a better platter to bring it on, he did not forget to cook the goose.
This treatise contains the author's third statement of his views on con
sideration.2 Few legal topics have been discussed so carefully by so many
writers with such a multitude of conflicting conclusions. Professor Williston's final position viewed as a whole contains more good sense as to the
actual results reached by the cases than does that of any prior writer. But
the end is not yet. Discussion will follow discussion. Many will despair
and some will suggest emancipation by abolition, thereby attaining the sublime
in naivete. It may be, too, that some one sometime will content himself with
the prosy task of preparing a really complete list of the many distinct senses
in which the word "consideration" is used by courts and academic writers
whence by a bare possibility it may appear that most of the discussions of the
doctrine of consideration hitherto had are comparable to an attempt to solve
some simultaneous quadratics with the value of X therein subject to like
change without notice.
In this work, too, is to be found the most careful and accurate marshal
ing of the decisions on contracts for the benefit of third persons. It would
not have been surprising had Professor Williston's objections on principle to
the results reached by the American cases abated somewhat since his earlier
discussion of this subject.8 Other subjects treated in Volume I are formal
contracts, capacity of parties, joint contracts, assignment and the Statute
of Frauds.
The first half of Volume II is devoted to general principles of contract.
With the second half begins the discussion of special kinds of contracts men
tioned in the preface, at which point interest recedes, again to mount when, in
later volumes, we shall get Professor Williston's ideas on such general sub
jects as impossibility, illegality and discharge. A noteworthy feature of the
first part of Volume II is the author's treatment of so-called conditions implied
in law in bilateral contracts. He prefers to find the logical basis for such
conditions in the fact that, just as the promises were the agreed exchange
each for the other when the contract was formed, so also the performance
by each party is, in the contemplation of the parties, to be exchanged for the
performance by the other party. 813. It is to be noted that this theory
, rests upon what the contemplation of the parties was. In consequence it
comes difficultly near to being the theory that so-called conditions implied in
law are merely the courts' construction of the language used by the parties, a
view which Professor Williston in the main rejects. 813. Probably a
proper use of the construction method of attacking these problems will take
us farther in explaining the cases than is commonly supposed. Nevertheless,
it is true that this theory will not account for all of them. We finally reach
a point where we can no longer rely upon what the parties intended or con
templated because numerous situations evolve to which by no stretch of the
imagination can it be said that the minds of the parties ever adverted and
3 8 Hahv. L. Rev. 27; 27 Harv. L. Rev. 503.
* 15 Harv. L. Rev. 767.
36o
MICHIGAN LAW REVIEW
hence, concerning which, they could not have had any intention or have
indulged in any contemplation.
To this theory the author adds a defense of the use of the term, failure
of consideration. He admits that the content of the word, consideration, used
in this connection is not identical with that of its use in stating the law of
the formation of contracts. The term in both connections, he states, ex
presses the common and general idea of "exchange" or "price." In like
manner he sees accuracy in speaking of the consideration for a conveyance
or other executed act. But he adds, "The requirements for legally sufficient
consideration in one or the other case may differ, but that is another matter."
Whence one of two things appear: (1) he is attempting to establish and
defend one of the non-technical meanings of the word consideration, which
is no concern of lawyers, and is asking us, already lost in the maze of this
word, to attempt to define a new term, viz : "legally sufficient consideration,"
or (2) he has admitted the case against him." In this part of the law of con
tract he and we need a distinct term because we have here a distinct idea to
express. It would seem better to adopt a new term rather than further to
abuse that already prostituted word, "consideration." The author himself
witnesses to its uncertain character by himself using appositive expressions
in the same section in which he attempts to defend the use of the term, failure
of consideration. 814.
Now for more general matter. The publication of Professor Williston's
work on the formation of contracts is epochal in the development of the law
of simple contracts. The opening of the nineteenth century found the courts
under the influence of a contemporary philosophy which laid undue stress on
the will as a determinative in social relations. 2o. From this influence we
inherited such notions as the necessity of a meeting of the minds and of an
intent to contract for the formation of a contract. Then followed the devel
opment of the notion that it was unreasonable to allow the existence of con
tractual liability to turn at all on what the defendant thought at the time of
the bargain if what he said and did reasonably indicated assent. Thus arose
an insurgency against the earlier view and the attendant conflict characterized
most of the latter part of the Nineteenth century. The crowning achievement
of Professor Williston's work in this field is that his is the final and successful
attack in the overthrow of this basic error with which we started. He has
adopted what may be called the objective as opposed to the subjective test and
has consistently applied it throughout his book. And it works. It accounts
for the cases. It can now be taken as definitely settled that the facts opera
tive to produce contractual liability are to be looked for not in what the
defendant thought but in what he said and did, reasonably interpreted.
But what of the plaintiff? One gets the impression from reading Prost Other parts of the book seem to indicate that the author proposes the adoption
of the term, "legally sufficient consideration." See 101, for example. To admit that
it is necessary to use such polynomials is to admit that the subject has no terminology
of its own, or, at best, a very clumsy one, because there are equally cogent reasons for
adding "legally sufficient" to the terms, offer, acceptance, and the score or more of
other technical terms found in contract law.
BOOK REVIEWS
361
fessor Williston's discussion that he has, consciously or unconsciously, adopted

the objective test both in the case of a person seeking to escape contractual
duties and liabilities and in the case of a person seeking to assert contractual
duties and to exercise contractual powers. But these are distinct cases. Now
we may find ultimately that the test is objective in both, but that cannot be
assumed. Certainly there is nothing in the nature of things making that a
necessary result. It may be true but we must not in our enthusiasm for the
objective theory allow ourselves to be swept to an opposite extreme of error.
Who knows? It may be that the old subjective theory is yet a half truth,
wherefore its puzzling vitality. We may find that one cannot assert rights
and powers unless he was actually, as well as reasonably, led to expect the
performance for which he sues, that upon such expectation he subjectively
relied at the time the alleged bargain was made.
A in jest makes an offer of a bilateral contract to B. B reasonably think
ing A is serious accepts the offer. A sues B. A telegraph company raises
the price named in an offer of bilateral contract of sale. The offeree-vendee
accepts in ignorance of the error. The offeror-vendor learning of the mis
take decides to hold the offeree to the higher figure. That B can hold A in
the first case and that in the second case the offeree can hold the offeror
where the error is in the opposite direction are applications of the thesis
which makes Professor Williston's work monumental. But his work does
not make a beginning toward the solution of the problem involved in the
cases as stated. Is the test objective or subjective as to the person seeking
to assert rights? That question is still ahead of us.
Now suppose a promise offered for an act. The act is done but not done
in reliance upon the offer. Nevertheless it is so done that to onlookers, the
offeror among them, it is apparently done in reliance upon the offer. May
the offeree hold the offeror? No assertion is now made that the test is not
objective. It may be that it is and that the offeror is liable, but it is unscientific
to assume so. The most ardent protagonists of the objective theory and the
greatest admirers of Professor Williston's championship of it cannot read
his attempt to apply it to this situation and wholly escape a feeling that the
effort is labored to say the least. 67. It is commonly said that the act asked
for by the promisor must be done by the actor in reliance upon the offer.
Is it not possible that that means that the act must be caused by the offer?
If so, how can action be caused except by an antecedent state of mind induced
in the actor and that, too, an actual, real, or subjective state of mind, not an
apparent one?
Back to bilateral contracts. Another pure abstraction kindred to the one
just discussed which descended upon us from the introspecionists of the early
Nineteenth century is that off yonder somewhere in space is a thing called
a bilateral contract which, if it exists at all, automatically binds both parties
or binds neither; that the group of facts operative to bind one party is, in
some mysterious way, inherently and necessarily identical with the group of
facts operative to bind the other party. Now it may be that men do live and
move in the body of such an all-pervading and mysterious principle and it
may be that they do not. Professor Williston says, 92, "Nothing is more
362
MICHIGAN LAW REVIEW
fundamental than that in bilateral contracts both parties must be bound or

neither * * *." That may be so but the assertion is ventured that, at this
stage in our investigations, the proposition as stated is a pure assumption and
it is unfortunately made because, if accepted, further inquiry ceases. Nothing
so fundamental can be assumed. The cases must be examined. If we recall
that in our law parties to a contract do not litigate their relations each to the
other simultaneously, we should not be surprised to find what is the fact,
viz., the decisions do not make this a closed issue regardless of the gen
eralities indulged in by the courts and text-writers. A single line of inquiry
is suggested. Dividing a normal or usual acceptance into its factual elements
we have: (a) a state of mind of assent, (b) an external act, (c) expres
sive of that state of mind, (d) of such a character as to come to the
knowledge of the offeror. Advancing from a to d, what is the minimum
necessary to render the transaction legally operative if (1) the offeree is
suing the offeror, (2) if the parties to the action are reversed?' May the
offeree vary from the offer as to (b), (c), and (d) according as he is suing
or is being sued?9
No attempt has been made here to give even a partial catalogue of the
cases in which it is material to determine (1) whether the test is objective as
to both parties and (2) whether in bilateral contracts the groups of facts
operative to bind the two parties are identical. No answers to these two
questions are proposed. They are merely raised with a protest against assum
ing their answers.
Law students and the legal profession are deeply indebted to Professor
Williston for his giving them the results of his long and careful investiga
tions. His work abounds in sane and well-matured conclusions richly reward
ing his great industry, patience and thoroughness.
Herman W. Ol1phant.
University of Chicago Law School.
T1ffany on Real Property (three volumes), by Herbert Thorndyke Tiffany,
of Baltimore, Maryland. Chicago, 192o. Callaghan & Company. Pp.
xxxii, 3666.
The ordinary textbook in law which is really only a statement of the
result of the cases is theoretically easy to write. The industry and patience
to examine a large number of cases and the ability to use understandable
English are the necessary qualities. There are, however, all too many of
these ordinary textbooks. Only occasionally do we find a writer rising notice
ably above the disappointingly common mediocrity. There are too few Wigmores, Willistons, and Salmonds.
The writer of the noteworthy text must, of course, have the qualities
mentionedindustry and ability to write,but he must have something more.
The ordinary writer can tell what the cases decided, the unusual writer does
4 The author's criticism of Hallock v. Commercial Insurance, 26 N. J. L. 268, for
example, does not consider the fact that in that case the offeror was suing the offeree.
B See for example Whcder v. Klaholt, 178 Mass. 141.
BOOK REVIEWS
363
not only that but he draws sound inferences; the former makes use of the
cases, but the latter understands the historical, economic, social, etc., back
ground and is familiar with the literature and thought upon the subject; the
former merely states results, the latter also weighs and tests them. The busy
lawyer who is looking for "a case" may prefer the ordinary bookhe uses it
as a digest, but the lawyers and judges who play the largest part in shaping
our law will trade a shelf full of such ordinary books for the one that has
that additional something which makes it a real contribution to legal literature.
It was in 19o3 that Professor Tiffany published the first edition of his
Real Property, a work in two volumes with 577 sections and 1323 pages.
Although this book fell short of the really remarkable contributions to legal
literature it was clearly one of the very best of the second class. The ar
rangement which was essentially that of Gray's Cases on Property was very
good and for conciseness and clarity of expression it would be hard to equal.
This quality made it a popular students' book. The cases cited were to the
point, and they were in sufficient number to make the book useful to practic
ing lawyers.
In 191o Professor Tiffany published his well known work on Landlord
and Tenant, a really remarkably good book, one which in the reviewer's
opinion is well entitled to rank with the best published in the last two decades.
It is so much superior to the rest of the American works on the same subject
that there is no basis for comparison. The author therein not only stated the
result of the cases in his characteristic, clear style but he also critically ex
amined and discussed their conclusions and the doctrines announced by
the courts.
The quality of the first edition of the Real Property and the excellence of
the Landlord and Tenant led all students of the subject to look forward with
no little anticipation to the announced second edition of the Real Property.
By some it may be doubted whether this new edition is quite up to the rea
sonable expectations aroused by these earlier works. It is quite likely that
the book suffers by reason of its being merely a new edition; the form
had already been cast.
To say that it is not equal to the Landlord and Tenant, however, is not
to condemn it. On the contrary this new edition is an extremely valuable
addition to Real Property literature. It is the old book brought down to date
with additional citations and discussion and something more. In many in
stances the content of the first edition is revised or amplified in the light of
the later cases and the author's further reflection, and in the notes refer
ences are to be found to the wealth of material in the various legal periodicals,
material not usually found by the practitioner. This is one of the most valu
able features of the new edition. The additions and amplifications have ex
tended the work to 677 sections and 3666 rather large sized pages ; approxi
mately thirty thousand cases are cited. The disappointment of the reviewer
is not that the work falls short of being excellent, but that it does not come
quite up to the expectations aroused by the author's own work on Landlord
and Tenant. Unquestionably the present book is by far the best general text
on the subject of Real Property.
364
MICHIGAN LAW REVIEW
It is of course obvious that in a work covering so large a field as Real

Property and of a size so large as the one under review the captious critic
can point to errors in statement and omission and to failures to refer to cer
tain authorities. Professor Tiffany's book is no exception. The errors, how
ever, are few and relatively unimportant. Naturally there will be differences
of opinion in many instances as to the soundness of positions taken by the
author. But who could write a book as to which this would not apply?
This review should not close without a word of appreciation of the work
of the publishers. The three volumes though containing over thirty-six hun
dred pages are not unwieldy, the paper being thin. The pages are pleasing
to the eye and easy to read. All in all we feel the author and publishers are
to be congratulated.
Ralph W. A1cleb.
MICHIGAN
LAW
Vol. XIX
REVIEW
FEBRUARY, 192 1
No. 4
THE RULE OF LAW AND THE LEGAL RIGHT

IT IS a common experience with a teacher of law to find in every
department of the subject a number of hard knots that have re
sisted all the efforts of the courts and jurists to split them. These
usually take the form of a hopeless contrariety of decisions, or of
decisions which are impeccable in their logic but offend against what
we usually speak of as a sense of natural justice. It is customary
for us to dismiss these with a statement that the majority of de
cisions or the weight of authority favors the one conclusion or the
other, and that possibly the only way to remedy the difficulty is- by
an appeal to the legislature. There seems to be a larger number of
these refractory knots piled up in the subject of Damages than in
other courses, and this is an attempt to reduce their number. It has
been somewhat surprising and not a little disconcerting to find that
so many of them depend upon simple logical fallacies. If the wrong
horn of a dilemma is originally taken by a supreme court, its decision
becomes a precedent from which its successors have difficulty in
escaping. As this solution seems to be so very easy, it is here pre
sented with due diffidence, and with deprecation of the charge of
contempt of court. It is simply the observation that in our never
ending struggle to steer between the two categorical legal necessities,
certainty and flexibility, the courts have inclined toward the former
where, without the violation of any legal principle, they might well
have turned to the latter.
The emphasis on the study of cases during the last half century
has had the revivifying and stimulating influence upon the science
of law which is characteristic of every return to the sources. Be
cause of this simple change in the method of approach we have made
366
MICHIGAN LAW REVIEW
our law more scientific, and whether the term be used as a reproach
or a commendation, all of us, both theorists and practitioners, for
better or for worse, have become case lawyers, in that we all believe
that law is the body of rules recognized or acted upon in courts of
justice. But we have frequently gone astray by following the rule
without recognizing that return to the sources means a constantly
repeated recurrence to the particular source, for the purpose of
formulating new rules for the enforcement of steadily developing
rights. A rule, a definition, or a maxim of law, established by a
decision of the sixteenth century, under the influence of our theory
of stare decisis and of the syllogizing tendency so prevalent in the
courts affected by eighteenth century philosophy, may become a pre
cedent for deciding a case which involves elements entirely different
from those on the basis of which the rule was originally established.
We have here the old familiar fallacy of the Schoolmen. "Man is
a featherless biped," but "a plucked chicken is a featherless biped" ;
ergo, "a plucked chicken is a man." An unassailable conclusion, if
we admit the validity of our major premise. And the only way to
remedy this grotesque conclusion is to make a more careful analysis
of the essential characteristics of man and, by a process of induc
tion, to form a more accurate definition which may then be used as
a corrected major premise.
As late as the middle of the nineteenth century the English court
held that the word "annexation" could have only its original gram
matical connotation ; i. e., bound together in some material way, as
by clamps or cement, because that had been the meaning in the six
teenth century.1 According to this decision the Statue of Liberty,
though weighing many tons would not be annexed to its base, if
there were no physical interlocking of the material particles of the
statue and the base. If annexation means interlocking, then, if there
is no interlocking, there is no annexation. By starting with the defi
nition as a major premise and proceeding deductively we reach in
evitably a logical conclusion, which may or may not properly deter1 Wiltshear v. Cottrell (1853), I E. & B., 2 Q. B. 674. Cf. note on "Epithetical Jurisprudence and the Annexation of Fixtures," 18 M1ch. L. Rev.
4o7. It should be acknowledged that Professor Evans Holbrook was the
first to apply the term "Epithetical Jurisprudence" to this peculiar reasoning.
Dean Pound has discussed the phenomenon at considerable length in his
article on "Mechanical Jurisprudence," 8 Col. L. Rev. 6o5.
RULE OF LAW AND LEGAL RIGHT
367
mine the rights of the parties to the litigation. If, on the other hand,
we start with all the facts in the controversy and proceed inductively
to determine which party has the legal right to the property, we
satisfy the reasonable expectations entertained by the parties as to
the subsequent disposal of the chattel when they put it in place, and
incidentally we establish a new rule of law ; namely, that affixing by
gravity is "annexation." That the latter process is just as legal as
the former, is shown by the fact that the New York court, in the
very next year, decided that "a thing may be as firmly fixed to the
land by gravitation as by clamps or cement."2
This reliance upon the rule of law to the exclusion of any effort
to determine the rights of the parties is more marked in the subject
of Damages than in some other fields. Doubtless because we have
in this branch of adjective law a gradual building up of rules of
substantive law on the basis of specific sets of facts. Jurymen were
originally summoned because they had been witnesses of the trans
action out of which the dispute had arisen, and were therefore the
most capable of passing upon the matter. But when their verdict
was crystallized in a judgment, this, almost of necessity, became a
rule of law for deciding analogous cases, and would be followed as
a precedent.3 But whenever a case involving a slightly different set
of facts was decided under the old and narrower rule, we would get
a decision that might or might not be just. What we need then to
establish the right under the new set of circumstances, is a new in
duction from the broader or different state of facts. With this
simple device a good many of the puzzles in the subject of Damages
'Snedeker v. Waring (1854), 12 N. Y. 17o, 175. It is perhaps worthy
of note that the New York court decided this point correctly -because it
resorted to the Roman Law for its principle of decision. For a similar help
ful use of the Roman texts, see the article by Dean Pound on "Juristic Sci
ence and the Law," 31 Harv. L. Rev. 1o49. This litigation of a word rather
than the determination of the rights of the parties as dependent upon their
intention has been a marked feature of the discussion of "trade fixtures" in
the English courts. In the case of Whitehead v. Bennett (1858), 27 L. J.,
Ch. 474, the court said there is a "broad distinction between trade fixtures
and buildings used in trade." On the other hand, the United States court
has said, in Van Ness v. Packard (1889), 2 Pet. (U. S.), 137, that buildings,
"if designed for purposes of trade," could be removed.
* If this had not happened we never should have arrived at a law of
damages; each verdict would have rested upon its own facts. Cf. Sedgw1ck,
Elements of the Law of Damages, p. 3.
3*8
MICHIGAN LAW REVIEW
may be solved and some apparently hopeless contradictions may thus

be reconciled.
In many instances the difficulties produced by the stress upon
deduction rather than upon induction have been solved by the courts
themselves, after they have recognized that the syllogistic reasoning
has brought them to conclusions that are not in accord with justice.*
There was no recovery for mental suffering at common law.s In
the case of Mitchell v. Rochester Ry. Co.,9 the plaintiff, a pregnant
woman, was standing on the street, waiting for a car. A horse car
of the defendant was driven close to the plaintiff, so that she stood
between the horses' heads. Because of the fright and excitement she
became unconscious and suffered a miscarriage and consequent ill
ness. The court in deciding that she could not recover said, "Assum
ing that fright cannot form the basis of an action, it is obvious that
no recovery can be had for injuries resulting therefrom." The fol
lowing seems to be the reasoning of the court: Major premise,
fright as a cause of action is zero. (As authority for this we have
the case of Lynch v. Knight, cited in Note 5, (supra), also the im
posing line of authorities quoted by counsel for the respondent in
this New York case.) Minor premise, ex nihilo nihil fit. (See,
Lucret1us, De Rerum Natura, I-159, first century before Christ.
This of course goes back to the source used by Lucretius, namely,
Epicurus, fourth century B. C, a venerable precedent). Ergo, the
* It may be remarked that the contradictory decisions are simply the sur
face indications of the deeper antinomy with which the courts are constantly
struggling. Law must be certain, otherwise men would never know how
their cases are to be judged, but it is just as necessary that law should be
flexible, in order that it may secure a constantly developing justice under
ever-changing conditions, and it is the business of courts, lawyers and jurists
to reconcile this antinomy. This is, in a way, the peculiar function of the
scientific jurist. The courts must decide cases and clear their dockets ; law
yers must win their suits; it is the business of the jurisconsult to solve these
problems.
9 "Mental pain or anxiety the law cannot value, and does not pretend to
redress, when the unlawful act complained of causes that alone." Lord
Wensleydale in Lynch v. Knight (1861), 9 H. of L. Cas. 577*Court of Appeals of New York (1896), 151 N. Y. 1o7. Cf. Proceedings
of the Seventeenth Annual Meeting of the Association of American Law
Schools, p. 13o, note 2. In the case of Spade v. Lynn, 168 Mass. 285 (1897),
the Massachusetts court followed the New York court in its decision, but
avoided this logical pitfall in its reasoning.
369
result is zero. Q. E. D.but it is wrong, because zero is used in the

sense of a cause of action and not in the sense of the proximate
cause of an injury. The fallacy of this reasoning has been pointed
out since by the English court,7 in a case in which the facts were
practically identical with those in the New York case, (supra). If
we approach this case, not through the rule of law, which is to be
followed as a precedent, but from the standpoint of the legal right
invaded, we start with an acknowledged legal wrong, the negligent
act of the defendant. This is the proximate cause of the fright,
which in turn induces the miscarriage, the injury complained of and
proved. The chain of causation is complete, the fright being a con
necting link between the wrongful act alleged and the proved detri
ment to the plaintiff.8
A SPURIOUS CANON OF INTERPRETATION
Aside from these cases where the courts have successfully extri
cated themselves from their difficulties by a process legally and logi
cally unassailable, there is an interesting line of cases in which the
same end has been accomplished by the invention of what seems to
be a spurious rule of interpretation. In the ninth edition of Sedg
w1ck on Damages, at the end of the discussion of the canons of
interpretation for distinguishing liquidated damages from penalty,
an extra section is added on "Valuation and Pre-ascertainment."9
From its position in the text it would seem that this is inserted as a
new canon of interpretation and it is apparently so used in subsequent
cases in the United States courts.10 During the Spanish-American
War the Sun Publishing Co. chartered a yacht from one Moore, for
'Dulieu v. White [19o1], 2 K. B. 669.
8Sedgw1ck, Elements op Damage, p. 113. "The true view would seem
to have been at length reached in Duheu v. White and Simone v. Rhode
Island, that negligence producing fright is not enough; that some material
damage must be proved; that this material damage must be proximately
caused by the negligence, and that fright may be one of the links in the chain
of causation." See Janvier v. Sweeney [1919], 2 K. B. 316; also 18 M1ch.
L. Rev. 332.
"Sedgw1ck on Damages [9th Edition, 1912], revised by Arthur G. Sedg
wick and Joseph H. Beale, Sec. 42oa. This section does not appear in the
8th Edition (1891), but seems to be added here as a new canon of interpre
tation.
10 18 M1ch. L. Rev. 5o; Wise v. United States (May, 1919), Adv. S. 343.
37
MICHIGAN LAW REVIEW
the purpose of gathering news in Cuban waters. The charter con

tained a provision that "for the purposes of this charter the value of
the yacht" should "be considered and taken at the sum of $75,ooo.""
The yacht was lost. In a suit for damages the supreme court decided
that evidence could not be admitted to show that the actual value of
the yacht was less than that sum, thus holding that the libellant was
entitled to recover the whole sum of $75,ooo as liquidated damages.
A few years later the House of Lords decided12 that a provision in
a contract that "The penalty for later delivery (of a torpedo boat)
shall be at the rate of 5oo pounds per week," was to be regarded as
"liquidated damages and not as a penalty." Lord Robertson gave as
a reason for this decision that there had been in this case "a genuine
pre-estimate of the creditor's "probable or possible interest in the
performance of the contract." In the case of the United States v.
Bethlehem Steel Co.,13 which was a suit for the breach of a contract
containing the provision that "the penalty for delay in the delivery"
of disappearing gun carriages should be at the rate of $35 a day,
the court decided that this was a provision for liquidated damages
and not for a penalty, and said further that "The principle decided
in that case" (Sun Publishing Co. Case) is much like the contention
of the government herein."
Some years ago14 attention was called to the fact that even before
this reference to the Sun Case by the court in the Bethlehem Case,
the subordinate United States courts were citing the Sun Case as a
precedent for their decisions on a state of facts which was entirely
different from the facts in the Sun Case but identical with those in
the Clydebank Case and in the Bethlehem Case. As our standard
text on Damages15 has brought the Sun Case and the Clydebank Case
under the rubric of "Valuation and Pre-ascertainment," we seem to
have established by the authority of the United States Supreme
Court and the House of Lords a new canon of interpretation. But
that no new canon has been established seems quite evident when it
is recognized that the Sun Publishing Co. Case was decided on the
"Sun Printing and Publishing Co. v. Moore (19o1), 183 U. S. 642.
12 Clydebank Engineering and Shipbuilding Co. v. Yzquierdo y Castaneda
[19o5], A. C. 6.
"2o5 U. S. 1o5, 119.
" 9 M1ch. L. Rev. 588, 591, note 14.
"Cf. note 9, supra.
37'
simple principle of estoppel by contract, on an almost unique state of

facts ; while the Clydebank Case, the Bethlehem Case, and all the
subsequent cases in the United States courts and the various State
courts, rest on the old canon of interpretation to the effect that
"where independently of the stipulation the damages would be un
certain, or incapable, or very difficult of ascertainment, they may be
liquidated."18 All the cases in which this alleged new rule has been
invoked have been decided correctly, but the confusion caused by
the appeal to the rule as a canon of interpretation has certainly not
added to the clarity and amelioration of our law. The deduction
from this spurious canon of interpretation as a new major premise
can only add to our bewilderment. The use of the terms "preestimate," "pre-ascertainment," or "pre-valuation" adds nothing to
our knowledge nor do they aid in settling our hard cases. "No more
since than before the decisions by the United States Supreme Court
and the House of Lords, can the parties 'preascertain' and fix upon
what is actually a penalty under the guise of liquidated damages."17
A SUPERFLUOUS CANON OF INTERPRETATION
As we have in the above instance the case of a spurious canon of
interpretation from which we make unwarranted deductions, so in
the subject of alternative contracts and liquidated damages we have
a superfluous canon of interpretation by which the cases are decided
deductively, by a process of purely grammatical interpretation,
whereas the inductive interpretation on the basis of the rights of the
parties, determined by their intention, will bring us to a rational con
clusion and satisfy the demands of justice.
"The principle of alternative contracts has been much discussed,
but decisions directly in point are difficult to find," says Arthur
George Sedgwick.18 "The whole subject seems to be involved in a
good deal of difficulty," in the words of Theodore Sedgwick.19 It
is submitted that most of the difficulties would be brushed aside or
avoided, if the subject were approached from the standpoint of the
rights of the parties, determined from all the facts in the case, rather
than from the determination of the grammatical question as to
" Sedgw1ck, Elements of the Law of Damages, p. 243.
"9 M1ch. L. Rev. 593.
" Elements of the Law of Damages, p. 251.
"Sedgw1ck on Damages [8th Edition], Sec. 424.
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MICHIGAN LAW REVIEW
whether the word "or" is a disjunctive conjunction or something

else. How difficult it is to find cases involving the principle of
alternative contracts, is shown by the fact that an English case from
the Court of Common Pleas is cited as the "leading case" on the
subject, and the decision in this case is by a divided court. The facts
in the case of Deverill v. BurnelP9 were that the plaintiff had shipped
from London to South America certain goods, to be delivered to
one Bollaert there, on his accepting certain drafts drawn by the
plaintiff on him. The defendant was given the bills of lading and
the drafts, to remit the proceeds thereof, if the same were paid, and,
in case they should not be paid, "either to return them to the plaintiff
or pay him the amount thereof." The bills were found to be worth
less, and, in a suit for the breach of the contract, a verdict was ren
dered for a farthing damages. On a rehearing this was reversed
and a verdict was given for 1o7 pounds, the face of the drafts. A
dissent was expressed by Bovill, C. J. The argument in both
opinions was a purely grammatical one. The court in the prevailing
opinion said, "If, in the ordinary affairs of life, I say to a man, 'I
will return your horse tomorrow, or pay you a day's hire for him',
the only reasonable construction is that, if I do not return the horse,
I will pay a day's hire." Bovill, C. J., in the dissenting opinion said,
"we ought to construe the declaration strictly, and are not entitled to
substitute words which import a condition that one alternative shall
be performed, if the other is not, when the disjunctive conjunction
'or' being used, the natural meaning is a simple alternative." In
-neither of these statements is there any intimation that what the
parties may have intended by their agreement is of any importance.
A few years ago, in an attempt to decide this case on the basis of
the rights of the parties rather than upon the grammatical interpre
tation of a word, Captain Sealby, the hero of the steamship "Re
public", was asked how that contract should be interpreted. He
promptly answered that according to the Custom of the Port of
London the sea-captain had guaranteed the collection of the bills of
exchange. This of course would make the recovery 1o7 pounds
and not the farthing, the nominal value of the bills, and the verdict
would determine the rights of the parties in accordance with their
reasonable expectations at the time the contract was made. It should
be noted, too, that this solution is strictly in accordance with law, in
"Court of Common Pleas (1873), L. R. 8, C. P. 475-
373
this case the Custom of London, following the precedent set by Lord
Mansfield, who so often thus made the custom of merchants a part
of our common law.
CONTINUING TRESPASS AND REPEATED WRONG
One of the most troublesome questions arising from the "hard
decisions" that make our proverbial "bad law", is found in the
application of the statute of limitations to the doubly ambiguous
term "continuing trespass." Trespass in its primitive sense is an
intrusion upon one's possession, either of property or person. But
with the development of the action on the case, and particularly with
a liberal construction of actions under the code, a trespass comes to
be treated as an infringement upon one's right ; i. e., a wrong, hence
it occurs that while a trespass is always a wrong, not every legal
wrong will be recognized by the courts as a trespass. The word
"continuing" also tends to become confused with the word "repeat
ed." An illustration of this is found in some of the recent mal
practice cases. A surgeon negligently sews up a sponge in a wound
and negligently allows it to remain there until after the statute of
limitations has run on the original negligent act. The question then
arises, is the injury produced from day to day by the foreign body
in the wound the result of the original wrongful act, and is the action
therefore barred by the running of the statute, or is there a new
injury each successive day caused by a fresh irritation, and can a
recovery be had for all injurious effects occurring within the statu
tory period ?
The National Copper Co. v. The Minnesota Mining Co.21 is one
of those hard cases which reaches a conclusion at variance with what
is ordinarily thought of as justice, but in which the court felt com
pelled by the logic of the law and the force of precedent to so decide.
The Minnesota Co. blew a hole through the barrier left between its
mine and the National Mine. Afterwards the Minnesota Co.
"robbed" its mine and allowed the surface to cave in. Surface water
flowed into the Minnesota Mine and later passed through the hole
into the National Mine, which had been temporarily abandoned.
Years afterwards the National Co. was put to large expense in re
moving this water, and therefore brought suit for damages caused
"(1885) 57 Mich. 83.
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MICHIGAN LAW REVIEW
by the flow of the water through the hole. It was held that there
could be no recovery because the Statute of Limitations had run on
the original trespass ; namely, the breaking down of the barrier, and
that no further cause of action arose, either (1) from leaving the
hole, or (2) from allowing the water to flow into the plaintiff's mine.
This decision rested on a firmly established precedent22 and has since
been followed without question,28 so that we may assume that it is
settled law, unless a flaw may be found in its logic. An Ohio case
involving the same principle but on a somewhat different state of
facts was decided in the same way after prolonged litigation.24 The
facts in this Ohio case of Gillette v. Tucker were that Dr. Gillette,
after performing an operation on the abdomen of the plaintiff,
sewed up a sponge in the wound, and allowed it to remain there for
many months. It was afterwards removed by another surgeon and
the plaintiff, Mrs. Tucker, brought suit for malpractice, more than
a year after the sponge was sewed up in the wound, but less than a
year after she had ceased to take treatment from Dr. Gillette. In
the common pleas court a decision was given for the defendant.
This was reversed by the circuit court of appeals, which gave a
decision for the plaintiff. The supreme court divided three to three,
thus affirming the decision of the circuit court, but several years
later, when the personnel of the supreme court had changed, it was
decided by a four to two vote, that the decision of the common pleas
court should prevail and that the decision of the circuit court should
be reversed.25 The Ohio Supreme Court thus finally denies a re
covery to the plaintiff and puts this case of trespass to the person in
the same category with trespass to property, as in the Michigan case
"Clegg v. Dearden (1848), 12 Ad. & El. (N. S.), 575; Kansas Pac. Ry.
v. Mihlman (1876), 17 Kans. 224; Williams v. Pomeroy (1882), 37 Oh. St.
583; Farmers of Hampstead Water (17o1), 12 Mod. 519.
"Duff v. United States Gypsum Co. (1911), 189 Fed. Rep. 236. It is
said in this case that the dissenting opinion in Gillette v. Tucker has become
the law of the state of Ohio. But Cf. 87 Oh. St. 4o8, post, note 36.
"Gillette v. Tucker (19o2), 67 Oh. St. 1o6.
"McArthur v. Bowers (19o5), 72 Oh. St. 656. This view as to the law
of the case has since been adopted in Duff v. United States Gypsum Co.
(1911), 189 Fed. 236, and may perhaps be considered to represent the weight
of authority. The United States circuit court, in this last case, cited
National Copper Co. v. Minnesota Mining Co. (1885), 57 Mich. 83, and Wil
liams v. Pomeroy (1882), 37 Oh. St. 1o6, as controlling precedents.
375
of The National Copper Co. v. The Minnesota Mining Co. (supra).

It had been asserted in this Michigan case that "the history of
mining upon Lake Superior will (not) disclose another instance of
such reckless disregard of the rights of an adjoining mine-owner,"
and, although the logic of that case and of the precedents upon which
it was based seem irrefragable, we have abundant evidence that
neither the courts nor the legislatures have been satisfied with the
conclusion. In the case of Lewey v. The Fricke Coal Co.26 the de
fendant, "while mining coal on its own land, pushed an entry or
passage under the plaintiff's lands and appropriated the coal re
moved therefrom." Action was brought in trespass to recover dam
ages for this unlawful mining. It was held that the statute began
to run not from the time of the original trespass but from the time
of the discovery by the plaintiff. The court said, "The discovery of
the fraud gives a new cause of action."27 E converso, this would
seem to mean that each day's concealment of the wrong gives rise to
a new cause of action. The acceptance of this converse proposition
would, as will later be shown, give a way to reverse our hard
decisions that now seem so thoroughly established. The solution of
the difficulty by the Pennsylvania court in cases of injury to prop
erty has been adopted by the Michigan court in cases of injury to
the person. In Groendal v. Westraten the facts were that a physi
cian had concealed from his patient the fact that her shoulder was
dislocated. The Michigan court held that a suit brought within two
years after she discovered the fact, was not barred by the Statute.
On a somewhat similar state of facts the California court has very
recently allowed a recovery where action was brought more than a
year after the initial negligent act of the surgeon, but within a year
after he had ceased to care for the case.29 It is believed, however,
that the theory held by the court in this last decision is not the same
as that of the Michigan court.
Although the injustice of the old decisions has thus been in part
remedied, their logic is as yet unimpeached. But it is believed that
" (1895) 166 Pa. St. 536" See Report, at p. 544a (1912) 171 Mich. 92. Decided under the provisions of M1ch. Comp.
Laws of 1897, Sec. 9729, as amended by Act No. 168, Public Acts of 19o5.
"Perkins v. Trueblood (Cal., May, 1919)- 181 Pac. 642; Code of Pro
cedure of Cal1forn1a, Sec: 34o, Subd. 3. Cf. 18 M1ch. L. Rev. 679.
37
MICHIGAN LAW REVIEW
if deductions from a vague major premise be avoided and the cases

be approached inductively from the standpoint of the rights of the
parties under all the facts, the harsh operation of the Statute of
Limitations may be avoided, and, in accordance with a somewhat
attenuated and devious line of authority, the plaintiff may be given
a verdict in the cases, both of injuries to land and of injuries to
the person.
The facts in the English case of Clegg v. Dearden, (supra), and
in the Michigan case of The National Copper Co. v. Minnesota
Mining Co. (supra),30 are identical. The wall of the plaintiff's
mine was broken through and, after the lapse of the statutory period,
water came in through the hole that was left, and injured the plain
tiff. It was held in the English case that the defendant was not
liable for "omitting to close up the aperture on his neighbor's soil."
In the Michigan case it was held that "the flowing of the water
through the opening" was not "a new trespass." It is necessary that
each of these conclusions be examined in detail. In arguing the first
of the above points, in the case of Clegg v. Dearden, the English
court said, "there is a legal obligation to discontinue a trespass or re
move a nuisance ; but no such obligation upon a trespasser to replace
what he has pulled down or destroyed on the land of another, * * *
no cause of action arises from his omitting to re-enter the land and
fill up the excavation ; such an omission is neither a continuation of
a trespass nor of a nuisance ; nor is it a breach of a legal duty." The
theory of the court here seems to be that the hole is not a continuing
wrong from which a new cause of action will start from day to day,
but that the hole is rather the result of the original wrongful act,
as is argued by the Ohio court in the dissenting opinion in Gillette v.
Tucker, (supra),31 and that the first trespass together with all its
consequences is barred by the statute. The Michigan court32 an
swered the argument as to the wrong in leaving the opening in plain
tiff's mine by saying that "there is no analogy between leaving a hole
in a wall * * * and leaving * * * obstructions there." This last
statement rests on abundant precedent; for example, the court in
10 Cf. notes 21 and 22, supra.
" (1oo2) 67 Oh. St. 1o6. It should be remembered that it was this dis
senting opinion that was finally adopted by the Ohio court in the later case
of McArthur v. Bowers. Cf. notes 24 and 25, supra.
"National Copper Co. v. Minnesota Mining Co. (1885), 57 Mich. 83.
377
the case of Kansas Pacific Ry. v. Mihlman33 says the doctrine of

continuous trespass cannot be extended beyond those cases "in which
something is carried to and placed on the land" ; but nevertheless it
seems to embody a logical fallacy which afterwards arises to
confound us.
In what is called the prevailing opinion in Gillette v. Tucker,
which was, however, reversed in the later Ohio case of McArthur
v. Bowers,3* the court said that the failure to remove the sponge was
"a continuous and daily breach" of "a continuous obligation" to re
move it, and cites the case of Perry County v. Railroad Co.,39 as
authority for its view. In this last case a bridge belonging to the
county was destroyed by the fault of the railroad company, in 1871.
The commissioners restored the bridge, at a cost of $3ooo, in March,
1878, after the statute of limitations had run on the original wrong;
and, in October, 1882, the commissioners brought suit against the
railroad for damages in that amount. The court said, "From the
time the injuries complained of were committed, * * * the duty of
the defendant to restore the bridge to its former condition of useful
ness and safety was a continuing and subsisting obligation, and each
day's failure to make full restoration was a fresh breach of such
obligation, and lapse of time cannot avail to interpose a bar to re
covery." It should be noted that although the court says that the
principle in Perry County v. Railroad Co. is the same as that in
Gillette v. Tucker, the facts are very different, for while the hole left
in the road-bed by the destruction of the bridge and the sponge left
in the wound each gave rise to a continuous obligation to remedy the
wrong, the foreign body left in the wound was also a "repeated
wrong", in that it produced each day a new irritation and inflamma
tion. The Perry County Case decides that leaving the hole was a
fresh wrong each day. The Gillette Case finally decides, after much
vacillation, that leaving the sponge in the wound was the result of
and a part of the original wrong of putting it there by a negligent
act. The consequence is that the final decision of the Ohio court in
the case of McArthur v. Bowers on the facts of the Gillette Case
does not affect the decision in the Perry County Case, which is on
an entirely different state of facts. Indeed the Ohio court in a late
* (1876) 17 Kans. 224.
" Cf. note 31, supra.
"(1885) 43 Oh. St. 451.
37
MICHIGAN LAW REVIEW
case38 has said that the dissenting opinion of Davis, J., in the Gillette
Case does not contradict the doctrine of the Perry County Case, as
it is cited by Price, J., in the Gillette Case. It is important to recog
nize that the Perry County Case is still good law in Ohio because
of the bearing of that decision upon the cases of Clegg v. Dearden
and National Copper Co. v. Minnesota Mining Co.
Fortunately, the above somewhat labored vindication of the Perry
County Case, as cited by Price, J., in the Gillette Case, is now un
necessary, as the Ohio court has since re-established the validity of
the decision in the Gillette Case. In the case of Bowers v. Santee*9'
the facts were that the plaintiff sustained a fracture of her leg, on
December 29, 1913, and the defendant, a surgeon, set the broken
limb. The surgeon continued his treatment until May, 1914. An
action for malpractice was begun in April, 1915, more than a year
from the date of the fracture but less than a year from the date the
patient was discharged. The Court, Wanamaker, J., said in decid
ing the case, "If McArthur v. Bowers, (supra), was rightly decided,
we still hold that under the allegations of the petition the statute of
limitations did not begin to run until May, 19 14. We, however,
most respectfully disagree with and disapprove the McArthur Case
and we approve and reaffirm the doctrine in the Gillette Case.'' This
last decision was concurred in by five other justices, but with Nichol,
C. J., expressing dissent. The Ohio court gives no reasons for this
final decision, but it is submitted that it is quite in accord with the
theory offered in this paper.
The decision in the Perry County Case is directly contrary to the
decision of the English court in the case of Clegg v. Dearden,
(supra), on the same state of facts. The English court, in this last
"Palmer v. Humiston (1913), 87 Oh. St. 4o1, 4o8. Cf. also Railroad v.
Commissioners, 31 Oh. St. 338, 351. "The obligation to restore is * * * a
continuing condition, * * * against the right to insist upon the performance
of which no lapse of time is available." It should be noted also that the mal
practice case of Palmer v. Humiston involves injury to the person of a pri
vate person. The Ohio court thus seems to have adopted the principle
decided in Railroad Co. v. Commissioners, 31 Oh. St. 338, and in Perry Co.
v. Railroad Co., 43 Oh. St. 451, both of which involved injury to a public
person, as equally applicable whether the plaintiff be a public or a private
person.
"*99 Oh. St. 361 (1919). Mr. Joseph A. Yager, of the Toledo Bar, called
my attention to this decision after this paper was ready for the press.
379
case, decided that leaving the hole in the plaintiff's mine was not a
wrong from which a new cause of action would arise. It also said
that there was no "continuing obligation" on the defendant to pre
vent the flow of water into the plaintiff's mine, but the court gave no
reason for this conclusion, contenting itself with the statement that
"the plaintiffs have not alleged any such obligation * * * nor is
their action founded on a breach of any such duty." The Michigan
court, on the other hand, in the case of The National Copper Co. v.
The Minnesota Mining Co., while following the case of Clegg v.
Dearden as a precedent, simply adopted without discussion the doc
trine of that case, on the point that the hole was not a continuing
trespass, but argued at greater length the other question as to
whether "the flowing of the water through the opening" was a new
trespass, and decided that it was not. The joint result of the Eng
lish case and of the Michigan case is then that neither the leaving of
the hole in the mine wall nor allowing the water to flow into the
mine gives the plaintiff a cause of action, if the facts are presented
to the court in the same way as they were in the Michigan case. If,
however, a "repeated wrong" rather than a "continuous trespass"
should be alleged as the gist of the action, the Michigan court would
decide in favor of the plaintiff, as is shown in the recent case of
Gregory v. Bush" in which the court said, "one cannot collect and
concentrate * * * waters and pour them through an artificial ditch
in unusual quantities upon his adjacent proprietor." And in the
case of Hurdman v. N. E. Ry. Co.39 the English court said that "if
any one by artificial erection on his own land causes water, even
though arising from natural rainfall only, to pass into his neighbor's
land and thus substantially to interfere with his enjoyment, he will
be liable." In the National Copper Co. Case the owners of the Min
nesota Mine, by allowing the surface of their mine to cave in, had
diverted the surface water, falling upon their land and therefrom
naturally passing over the surface of the National Mine, in such a
way as to throw it into the neighboring mine, to its serious detriment,
and a new right of action would arise for each successive flooding,
even though the right of action for the original trespass in breaking
through the wall was barred by the statute. It should be noted that
this solution of the difficulty by the well established principles re" (1887) 64 Mich. 44. See also Yerek v. Eineder (1891), 86 Mich. 28.
"C. of A. (1878), L. R., C. P. D. 168.
38o
MICHIGAN LAW REVIEW
lating to surface and percolating waters does not invoke the doctrine
of the cases that deal with the intent with which the water is col
lected and with subsequent negligence in keeping it. The law of
surface and percolating waters deals with an absolute liability, not
with the question of intent or negligence.
It would seem that the confusion in the results depends in the
main upon the use with varying connotation of three terms ; namely,
(1) continuing trespass, (2) continuing obligation, (3) repeated
wrong. The case of Clegg v. Dearden, (supra), decides that keeping
the hole open was not "a continuation of the trespass." In the
National Copper Co. Case, (supra), the Michigan court approves
and follows this decision. This is undoubtedly right, if by "trespass"
we mean intrusion upon one's possession. A hole in the wall cer
tainly does not fall in this category. But the Ohio court in the case
of Perry County v. Railroad Co. (supra), decided that it was the
duty of the defendant to fill up the hole in the road caused by the
destruction of the bridge, that this duty was "a continuing obliga
tion", and that each day's failure to perform this duty was "a fresh
breach of such obligation", i. e., a new wrong. If then the allega
tion in the English case or in the Michigan case had been, that the
leaving of the hole was a "continuing wrong", the plaintiff would
have succeeded.30 It has been shown above40 that the decision of the
Ohio court in Perry County v. Railroad has not been overturned by
the decision in Gillette v. Tucker, as affirmed in McArthur v. Bowers,
and we may assume that the Ohio court still believes the hole, as a
continuing wrong, gives rise to a continually recurring new cause of
action. But, furthermore, the final decision of the Ohio court in
Gillette v. Tucker, as affirmed in McArthur v. Bowers, may be called
in question on the facts. The sponge left in the wound is a fresh
source of harm each day and we thus have in this case a "repeated
wrong", a repeated trespass to the person, which no court has ever
denied gives rise to a new cause of action on each repetition.*1 The
case of Lewey v. Fricke Coal Co. (supra),*1 although apparently
" It should be noted that in the English case the action was in case and
not in trespass. The allegation should therefore have been construed as an
infringement upon a right, not as an intrusion upon possession.
*"Cf. Note 36, supra.
"Perkins v. Trueblood (Cal., May, 1919), 183 Pac. 642; 18 M1ch. L.
Rev. 679.
"Cf. Note 26, supra.
381
decided on the "equitable rule that the statute of limitations runs

only from the discovery" really belongs in the class of "repeated
wrongs", the wrong being the concealment of the fraud from day
to day. The same may be said of the cases decided under statutes
that do not bar the action, if the defendant fraudulently conceals
from the plaintiff that there is a cause of action.
The law then finally seems to be as follows: the English court
and the Michigan court have decided that leaving the hole is not a
"continuing trespass". The Ohio court has decided that leaving the
hole is "a continuing wrong" and this decision is left untouched by
the later Ohio decisions, which, though apparently contradictory, are
decided on a different state of facts. The malpractice cases may all
be construed as cases of "repeated wrong" for which no court denies
a recovery. Furthermore although the original Michigan case decides
that the flowing of the water is not "a continuing trespass", the same
court has later declared that the throwing of water upon an adjacent
proprietor is a wrong, for which a fresh cause of action will arise as
often as it is "repeated". In the use by the courts of the three terms
above cited ; namely, (1) continuing trespass, (2) continuing obliga
tion, (breach of which is a continuing wrong), (3) repeated wrong,
it will be observed that there is first a confusion of trespass in its
original sense with that in the broader sense of wrong, and then a
further confusion of "continuing" in its ordinary sense with that in
the different sense of "repeated". It would then seem to be good
legal tactics for the plaintiff in every such case to allege a "repeated
wrong" and not a "continuing trespass", and this irrespective of
whether the wrong be a trespass to land, as in the mining cases,43
an intrusion upon one's personality as in the malpractice cases,44 or a
wrong to reputation as in the slander or libel cases.40 The pons
asinorum of continuous trespass could thus be avoided and a re
covery assured in each case.
It should be said in conclusion that the criticisms here offered are
not strictures on the courts but rather on the lawyers. The trouble
arises from bad pleading. It would be impossible for the Michigan
"Clegg v. Dearden and Williams v. Pomeroy, Note 22, supra; National
Copper Co. v. Minnesota Mining Co., Note 32, supra.
" Gillette v. Tucker, Note 24, supra; Perkins v. Trueblood, Note 29, supra.
"Dick v. Northern Pac. Ry. Co. (1915), 86 Wash. 211. Cf. 18 M1ch.
f, Rev. 679.
382
MICHIGAN LAW REVIEW
court to come to any other conclusion than the one arrived at in the
National Copper Co. v. Minnesota Mining Co. on the case as it was
presented to the court. Furthermore, the errors in the decision, if
they be such, have all been corrected by the courts themselves in
subsequent cases ; and in the handling of the same questions, if they
should arise in these courts again, the later cases may be given their
proper stress.
Joseph H. Drake.
THE NEW HAMPSHIRE CONSTITUTIONAL

CONVENTION
EW HAMPSHIRE'S tenth constitutional convention, upon
whose labors the voters will pass judgment in November,
192o, offers a striking contrast to most constitutional conventions of
recent years.1 It met originally in June, 1918, sat for three days,
during which it organized, appointed its committees, debated and
disposed of an important constitutional question, and then adjourned
awaiting the quieter days of peace. Upon reconvening in January,
192o, it concluded its work within seventeen days, at an expense of
less than $5o,o0o, and proposed only seven amendments, five of
which had been submitted to the voters by previous conventions.
For a body of over four hundred men, meeting in the midst of
rapidly changing conditions and dealing with a constitution which is
today substantially the same document as that adopted in 1784, this
may well be said to be an unusual record of brevity and despatch.
This record is emphasized when it is understood that three of the
proposed amendments2 were adopted by the convention after a favor
able committee report without a word of debate, that a fourth was
discussed only on a motion for reconsideration,8 and a fifth was
debated on the floor not more than twenty minutes.4 The record of
the convention may also be viewed from another angle. The income
tax amendment was debated for one day, a proposal to grant broad
powers of taxation to the legislature was debated one day and part
of a second ; the growing timber tax amendment was debated, in both
sessions, three days ; methods of amending the constitution, one day ;
the size and basis of apportionment of the House of Representatives,
one day ; and the pension amendment, part of one day. A day means
a period from eleven o'clock in the morning to four o'clock in the
afternoon. The contrast with the recent Massachusetts Convention,
which spent months on a single proposition, is striking.
1 A running account of the work of the convention will be found in 52
Gran1te Monthly, 83. The Manchester Union and the Independent Statesman give good newspaper reports.
9Inheritance tax; item veto; non-sectarian amendment.
9 Pension amendment.
* Re conscientious objectors.
34
MICHIGAN LAW REVIEW
The fundamental law of New Hampshire belongs to the class of

rigid constitutions. The General Court has no power to propose
amendments; its constitutional authority is limited to the formal
duty, once in seven years,0 of providing that the sense of the people
shall be taken on the question, shall there be a constitutional conven
tion; and, if the popular vote be in the affirmative, to the equally
formal duty of providing for the election of delegates. Amendments
proposed by this septennial convention are ratified only by an affirm
ative vote of two-thirds of those voting on the proposition.*
The exceptional requirement of a two-thirds affirmative vote for
ratification has produced many curious cases. For years it has been
agreed that the House of Representatives has been much too large
for efficient work. In 19o3 an amendment proposing to reduce its
numbers was defeated, although 2o,295 votes were cast in its favor
to 13,o69 against. A measure having the same purpose was again
presented in 1912 and by the narrow margin of 169 votes was again
defeated. The vote this time stood 21,399 to 1o,952. In 1912 a
proposition for a special tax on growing timber and for an income
tax received a vote of 23,1o8 to 12,636, or 722 too few affirmative
votes to secure its adoption. At the same election a graduated in
heritance tax amendment received a vote of 18,432 to 9,699, thus
lacking 322 of the constitutional majority. A proposed amendment
for a tax on public service corporations failed in 1912 by a vote of
19,2oo to 1o,151, a margin of 368 votes. A proposal to strike the
words "Protestant" and "rightly grounded on evangelical principles"
from the Bill of Rights has been voted on by the people five times
and will appear again this fall ; it has never failed to receive a ma*This seven-year rule has not been observed. From 1820 to 1833 no
call was sent to the people; but the legislature exercised this power in 1844,
1846, and 1849; and, following the regular call in 1857, in 186o, 1862, 1864,
1868, and 1869. In 186o the people voted to hold a convention, but in 1861
the legislature took the unusual step of postponing the whole matter. This
procedure was repeated in 1865. (See Manual of the Convent1on, 1o18,
p. 152). The constitution as then, and now, in force provides, "And if it
shall appear * * * that in the opinion of the majority of the qualified voters
in the state present and voting * * * there is a necessity for a revision of
the constitution, it shall be the duty of the Ceneral Court to call a conven
tion for that purpose * * *." Since the adoption of biennial elections in
1876, the seven-year period has become practically impossible.
8Const1tut1on, Arts. 98, 99.
NEW HAMPSHIRE CONVENTION
385
jority of the votes cast on the question, and in 1876 won a majority
of 1 1,757 ; but never have its friends mustered the constitutional twothirds majority.
On the other hand, the abolition of a religious test for office was
carried in 1876 by 28,477 to 14.231, exactly five votes more than
were required ; and in 19o3 a faulty inheritance tax amendment re
ceived a vote of 2o,917 to 1o 3o6, thus negotiating the constitutional
hurdles by the margin of 1o1 votes.7
The recent convention was essentially a war convention. The
legislature provided for taking the sense of the people on calling a
convention in 1915 ;8 the people gave their approval in 1916; the con
vention was chosen in 1917,8 and met for the first time in June, 1918,
at a most critical stage of military operations. Four of the seven
proposed amendments can be traced directly or indirectly to the
effects of the war.
After one day's debate in the shadow of the Great War the con
vention decided to adjourn upon call of the President, acting with
a committee of ten members, one representing each county; and
from June 7, 1918, to January 13, 192o, the convention existed in a
state of suspended animation, from which it emerged for a brief
period of activity. Upon reconvening for the adjourned session,
the convention went immediately to work upon a few subjects the
principles of which were non-contentious. Practically every subject
on which there was a fundamental difference of opinion was either
avoided entirely or disposed of with the slightest possible considera
tion. This unwillingness to face many possible subjects of consti
tutional importance may be attributed to two things ; first, the tradi
tional conservatism of New Hampshire conventions;10 second, the
' See Manual of the Convent1on, 1918, passim, for these and other
illustrations of the same situation.
"Laws 1o15. c. 235.
8Laws 1917, c. I31.
"The Convention of 1918 was, if anything, more conservative than its
predecessors. The discovery and arrest of "reds" in New Hampshire cities,
the police strike in Massachusetts, and the unrest prevalent during its adjourn
ment induced a frame of mind which was expressed, with some exaggeration,
in the following statement made on the floor of the convention by one of its
members: "I do not think that it is any time to monkey with the New
Hampshire Constitution very much. The less we bother it the better off it
will be for American principles."
386
MICHIGAN LAW REVIEW
limited appropriation with which the legislature provided the con

vention, which considerably accelerated progress and led to an early
adjournment.
In all, the convention proposed seven amendments. Proposition
one gives the General Court power to levy a progressive income tax ;
proposition two amplifies an amendment of 19o3, by enlarging the
scope of the inheritance tax ; proposition three gives the item veto to
the governor; proposition four alters the basis of representation in
the House of Representatives and reduces its membership; proposi
tion five strikes out an obsolete clause protecting conscientious ob
jectors; proposition six strikes the words "Protestant" and "rightly
grounded on evangelical principles" from the Bill of Rights; and
proposition seven strikes out the clause forbidding the legislature to
grant pensions for more than one year at a time. Of these the taxa
tion amendments and the amendment altering the basis of represen
tation in the House are the most important, and will be briefly dis
cussed in the following paragraphs.
The New Hampshire constitution of 1784 granted power to the
legislature "to propose and levy proportional and reasonable assess
ments, rates, and taxes * * *." This rule of proportion is found in
the present constitution, and though originally inserted as a neces
sary safeguard against discrimination, it has since been construed by
the state Supreme Court to prevent forms of taxation required by
modern conditions. As early as 1827 the Supreme Court said, "The
equality, here intended, is, that the same tax shall be laid, upon the
same amount of property, in every part of the state, so that each
man's taxable property shall bear its due portion of the tax accord
ing to its value. And a tax thus laidis a proportional tax, within
the meaning of the constitution".11
This ruling has been followed uniformly ever since. In State v.
U. S. and Canada Express Co. a tax of two percent of the gross
receipts of express companies doing business on railroads within
the state was held unconstitutional, the court saying, "The idea of
proportionaltaxationis wholly, destroyed by fixing a tax upon
value on one kind of property, and a tax on gross receipts upon an
other", and again, "This special law puts upon railroad expressmen
a tax which is put upon nobody else".12 In Curry v. Spencer a tax
"4 N. H. 565, 568.
"6o N. H. 219, 245.
387
of one percent on collateral inheritances was held to violate the rule

of proportion on the ground that it cast the burden on one class of
beneficiaries alone.13
Recently the rule of proportion has been applied to two matters of
considerable importance in New Hampshore taxation. The House
of Representatives proposed to levy a tax of one-half of one percent
on the fair cash value of stock in public funds not exempt from tax
ation, and in corporations; and on money on hand or at interest.
Doubt was expressed in the House concerning the validity of this
law, and the Supreme Court by request gave an opinion that the
General Court could not tax such classes of property at a lower pro
portion of their value, either by diminishing the rate at which they
are taxed, or by requiring them to be rated for assessment at a
smaller percentage of their real value.14 A later opinion of the jus
tices disposed of another much discussed topic, the taxation of grow
ing wood and timber at a lower rate than that imposed on other
property. The Court held that the legislature had no authority to
provide for the taxation of standing wood and timber at a rate less
than that imposed upon property in general.15
The effect of the rule of proportion was modified insofar as in
heritances were affected by an amendment of 19o319 to which refer
ence will be made below. Even as modified, the rule seriously
limited the taxing power of twentieth century New Hampshire. An
income tax was thereby made impossible, a proposed graduated tax
on growing timber was declared beyond the power of the legislature,
classification of property for purposes of taxation was nullified.
New Hampshire was and is forced to rely chiefly upon the general
property tax, while intangibles escape largely without any burden of
taxation whatever.17
The convention of 1912 was aware of this situation, and proposed
an amendment empowering the legislature to specially assess, rate,
and tax growing wood and timber and money at interest, and to im"61 N. H. 624.
"Opinion of the Justices, 76 N. H. 588 (1911).
"Opinion of the Justices, 76 N. H. 6o9 (1o13).
"Const1tut1on, Part Second, Art. 6.
"See article by Hon. A. C. Brown, President of the Convention and
member of the State Tax Commission, in 52 Gran1te Monthly, 3.
388
MICHIGAN LAW REVIEW
pose a graduated income tax. This amendment was rejected by a

vote of 23,1o8 in favor to 12,636 against. In the interval between
the conventions of 1912 and 1918 the tax question had become
critical. Demands for increased revenue, in part required to meet
the expense of the new school policy of the state, and in part to pay
for the construction of better roads, were incessant; and the gen
eral property tax had nearly reached the limits of its productivity.
A proposal to renew the growing timber classification plan was
defeated during the one working day of the first session of the 1918
convention by the combined efforts of the farmers, who feared that
any reduction of forest taxation would mean an increased burden
upon farm property,18 and some of the great lumber operators, who
feared the weight of the tax proposed on newly cut timber. The
friends of this proposition renewed the fight during the adjourned
session, but were again defeated.
The second session of this convention adopted with a very brief
discussion an amendment authorizing an income tax. The income
tax debate was typical of most of the work of the convention. On
the second day of the adjourned session, the convention went into
committee of the whole on the income tax proposal ; the committee
was addressed by the President and by other prominent members of
the convention, defeated a proposed alteration compelling the Gen
eral Court to levy the tax, and within the space of three hours re
ported back to the convention favorably, and saw the convention
without further discussion adopt its report. No arguments were made
against an income tax, no specific data were presented to the con
vention to illustrate its probable operation. The successful experi
ence of Massachusetts with the tax, the recommendation of the state
tax commission, the vote of the people in 1912, and the admitted
failure to reach intangibles under present methods of taxation
brought the convention to an immediate agreement on this proposal.
In substance the amendment grants to the General Court full power
and authority, regardless of the rule of proportion, to impose taxes
on incomes, to graduate such taxes according to the amount of the
income, and to grant reasonable exemptions.
The effect of the rule of proportion as applied to a classified in"See Journal of the Convent1on, pp. 76 ff. The Journal for the
adjourned session has not yet been printed. (May, 192o.)
389
heritance tax has been noted above (Curry v. Spencer). This de

cision was modified in 19o3, when the General Court was given
power to impose taxes "upon property when passing by will or in
heritance".19 The State Supreme Court readily construed this clause
of the amended constitution to permit the imposition of a tax upon
property passing by will or inheritance "which shall be assessed at
different rates upon classes standing in different relations to the
original owner, or between which there is a reasonable ground for
distinction". The Court, however, found itself in disagreement and
consequently gave no opinion on the further question whether this
amendment validated "an exaction from those in the same class or
relation to the testator varying in accordance with the amount of
property passing".20 The doubt concerning the constitutionality of
this sort of graduation in inheritance taxation seriously impaired
the usefulness of the amendment of 19o3, and not until 1919 did the
General Court venture to impose such a tax.21 Its constitutionality
has not yet been tested before the court.
Iri order to remove this uncertainty, the convention of 1912 pro
posed a further amendment specifically authorizing an inheritance
tax graduated according to the amount of property passing. Owing
to the two-thirds majority rule, this amendment was defeated by a
vote of 18,432 to 9,699. As in the convention of 1912, so in the
convention of 1918, there was no opposition to such an amendment;
and substantially the same proposition will appear on the ballot for
the second time in the November elections of 192o.
The tax amendments were considered the main work of the con
vention, but one other important matter, the size of the House of
Representatives, was pressing for attention. New Hampshire,
although one of the smallest and most homogeneous of all the Amer
ican states, possesses the largest House of Representatives, a body
of approximately 4o5.22 The present basis of apportionment grants
one representative to every town and ward having six hundred in" Manual of thb Convent1on, 1918, p. 164; Const1tut1on, Part Second.
Art. 6.
"Opinion of the Justices, 76 N. H. 597 (1911).
"Laws 1919, c. 37.
It is impossible to give an exact figure for the size of the House, owing
to the partial representation of many towns.
390
MICHIGAN LAW REVIEW
habitants, and one additional representative for every 12oo addi

tional inhabitants. If a town or ward has less than 6oo inhabitants
it is entitled to intermittent representation for a proportional part of
each decennial census period.2' This basis of representation was
introduced in 1876 to replace a representation of "ratable polls", and
reduced the House from 37o to 28o. The increase of population by
19o2 had brought the House up to 397 members, and in 1912 to
about 4o5.
The problem of reducing the size of the House has engaged the
attention of every convention since 1876 and repeated attempts to
solve this question have been presented to the voters, only to fail on
account of the jealous opposition of the smaller towns which benefit
by the existing rule. Town has been aligned sharply against city,
and taking refuge in the two-thirds majority rule for ratification of
amendments, the towns have been successful hitherto in staving off
any diminution of their constitutional importance.
The Convention of 1918 was presented with the traditional plans
for reduction. One provided for districting the state and alloting
equal representation to each district. The other, based on town rep
resentation, was presented in an ingenious form by Mr. Lyford of
Concord, and after considerable discussion was adopted by the con
vention and will be laid before the people."*
By the terms of this proposition, the House of Representatives
must consist of not less than 3oo nor more than 325 members. The
"Const1tut1on, Part Second, Art. 9, 1o; see Lloyd Jones, in 197 No.
Am. Rev. 486, for an account of the results of this rule of apportionment.
" This amendment reads as follows :
Art. 9. There shall be in the legislature of this state a House of Rep
resentatives, biennially elected, in which representation shall be in propor
tion to the average total number of ballots cast at the last two elections pre
ceding the apportionment at which electors for President and Vice-President
of the United States were Voted for, except that the apportionment which
shall be made by the legislature of 1921 shall be based upon the total num
ber of ballots cast at the election of 192o. The whole number of representa
tives to be chosen from the several towns and wards shall not be less than
3oo nor exceed 325. At the legislative session of 1921 and again at the legis
lative session of 1925, and every twelve years after 1925, the legislature shall
make the apportionment of representatives. In determining the number of
ballots required to entitle any town or ward to representatives additional to
39'
geographical basis of representation remains the town and ward.

Representation will, however, no longer rest on population; instead
of this traditional basis, representatives will be apportioned accord
ing to the average total number of ballots cast in each town
and ward at the last two presidential elections preceding any
apportionment. Owing to incomplete records of the 1916 election,
the apportionment of 192 1 will be made on the basis of the 192o
balloting alone ; a second distribution is required in 1925, and every
twelve years thereafter. Obviously it is impossible to know what
quota of ballots will entitle a town or ward to one representative
until after the fall elections. Whatever number may be fixed, a
town or ward becomes entitled to an additional representative for
every addition of three times the number of ballots required for one
representative; and if a town or ward has less than this required
quota, it becomes entitled to representation only for a proportional
part of each twelve year period. The amendment allows a latitude
of 25 members in the total membership of the House, which latitude
will probably be appreciated by the official who calculates the first
apportionment. It is estimated that 73 towns will fall under the
partial representation rule.25 The essential features of the amend
ment are the alteration of the basis of representation from popula
tion to ballots cast, and the reduction of the size of the lower House
from 4o5 to a number between 3oo and 325.
The object of this unusual method of apportionment is to reduce
the House at the expense of the cities so far as possible. In many
New Hampshire cities there is a considerable group of aliens who
the first, there shall be required for each additional representative an add1
tion of three times the number of ballots required for one representative.
(A paragraph dealing with towns or wards whose boundaries may have
been altered between apportionments is omitted.)
Art. 1o. Whenever any town or ward shall have cast less than the said
average number of ballots required by the apportionment to entitle such
town or ward to a representative all the time, the legislature shall authorize
such town or ward to elect and send a representative such proportional part
of the time as its average total number of ballots cast shall bear to the requi
site number established in the apportionment for one representative; but the
general court shall not authorize any such town or ward to elect and send
such representative except as herein provided.
* "Tables of Representation," prepared by the order of the convention.
392
MICHIGAN LAW REVIEW
under the present rule help swell the city representation.28 It is

proposed in substance to remove this class from consideration in
apportionment, and in addition to penalize any community which
displays indifference in the use of the ballot. It will be interesting
to observe what effect if any such a plan will have on the numbers
of those voting.
The estimated result of this amendment would be to reduce the
representation of Manchester by 32, of Nashua by 1o, of Concord
and Berlin by 6, of Dover by 4, of Keene by 3, of Rochester, Somersworth, Franklin, and Portsmouth by 2 each, and of Laconia by one."
This accounts for 7o of an approximate reduction of one hundred.
The prospects of success for this amendment are not wholly un
clouded. If, however, it fails to commend itself to the voters, the
next census will require a House of approximately 425, in which all
the faults of the present overgrown chamber will be exaggerated.
The remaining work of the convention may be briefly disposed of.
The proposal to give the governor power to veto items of an appro
priation bill covers familiar ground; the convention was not con
versant with the improved variant recently adopted in Massachusetts
by which the governor is given the power to reduce as well as to
strike out such items.28 The proposal to remove the relics of an
obsolete sectarianism from the Bill of Rights has been before the
people for a half century, and curiously enough, seems to be steadily
losing favor. The proposal eliminating a dubious privilege of the
conscientious objector is a reflection of war conditions, and if ac
cepted will merely remove an obsolete clause from the constitution.
The proposal to eliminate the one year limit on pensions is more
important, and deserves a word of explanation. Article 36 of the
Bill of Rights recites, "Economy being a most essential virtue in all
states, especially in young ones, no pension should be granted but in
consideration of special services; and such pensions ought to be
granted with great caution by the legislature, and never for more
than one year at a time * * *." It is proposed to strike out the
closing words, chiefly in order to enable the state to hold in its serv" In order to make this plan more acceptable to the representatives of
the cities, it was pointed out that the plans for Americanization of aliens
now well under way in New Hampshire would soon remove this temporary
handicap.
" "Tables of Representation," supra.
"Mass. Const1tut1on, Art. 111 (as approved November 4, 1p1o).
393
ice a capable force of public school teachers, firemen and police. This
amendment, originally assented to without discussion, stirred up a
vigorous debate on reconsideration, when it was alleged that it was
dangerous procedure to open up to the legislature the possibility of
an unlimited pension system. This was not the only occasion when
the convention recorded its distrust of the General Court.
It can hardly be said that the convention of 1918-192o gave a
careful consideration even to the important matters of constitutional
interest which fell within its jurisdiction. Attendance was poor, and
as is usual in New Hampshire political bodies, leadership, organiza
tion, and direction were carried on by comparatively few. Among
the important matters which failed to secure adequate consideration
may be noted first, an easier method of amending the constitution.
Five different propositions on this subject were offered to the con
vention,29 of which one only reduced the two-thirds majority rule.
It may be fairly said that the convention was content to leave the
present difficult amending procedure intact, preferring the evils of
an antiquated constitution if need be, to the anticipated dangers of
a more elastic system. A proposal for a constitutional initiative
amendment and a referendum on laws was defeated by a decisive
majority. A resolution to abolish the governor's council received
scant attention. No action was taken to alter the existing rule of
Senate apportionment on the basis of direct taxes, or to enlarge the
size of the upper House.30 Proposals to vest in the legislature power
to regulate bill-board advertising, to increase the salaries of various
state officials now fixed by the constitution, to create the office of
legislative draftsman, to give a favored position on the legislative
calendar to governor's bills, and to grant towns and cities power to
loan their credit for the purpose of securing the continued operation
of an existing public utility, were rejected without debate following
an unfavorable committee report. Measures providing for the exec
utive budget, reorganization of the state administration, introduction
of greater efficiency in the state government, which have played so
prominent a part in recent conventions, were not even presented.
Such matters, if thought of at all, were thought of as legislation, not
as constitutional law. The greatest failure of the convention was
its refusal to propose a more elastic method of constitutional amend" Resolutions number 3, 8, 1o, 13, 15.
"At present 24. Thirteen Senators may therefore control legislation.
394
MICHIGAN LAW REVIEW
1nent
its greatest success, if popular approval be granted, will lie
in the taxation amendments and the reduction of the size of the
House.
Leonard D. Wh1te.
University of Chicago.
" The inelasticity of the existing methods of amending the constitution
was emphasized by the results of the election of November 2, 192o. Every
proposed amendment was defeated at the polls, although all but one received
a considerable majority of the votes cast on the proposition. The vote on
each question follows :
Question 1 (Income Tax)Yes, 46,43o; No, 3o,364Question 2 (Inheritance Tax) Yes, 45,415; No, 24,222.
Question 3 (Item Veto)Yes, 45.634; No, 26,195.
Question 4 (Reduction in Size of House of Representatives) Yes, 48,598;
No, 28,121.
Question 5 (Conscientious Objectors) Yes, 35,932; No, 31,5o9.
Question 6 (Protestant Religion) Yes, 35,172; No, 42,322.
Question 7 (Pensions)Yes, 44,456; No, 3L995Question two, providing for an inheritance tax graduated according to
the amount passing, came nearest to success with a majority which lacked
1,o1o of the requisite two-thirds of those voting on the proposition. The
income tax amendment lacked 5,736 votes; the proposal for reduction in the
size of the House of Representatives lacked 2,481 votes. Question six fur
nished a surprising result; it received more votes than any other proposition,
and was rejected by the most decisive majority. The inference appears to
be that the people of New Hampshire are more interested in retaining an
eighteenth century privilege for the Protestant religion, "rightly grounded
on evangelical principles," than in providing a twentieth century system of
taxation.
DAMAGE LIABILITY OF CHARITABLE INSTITUTIONS

THE question of the liability of charitable institutions to actions
for damages presents great difficulties. This is not due how
ever to a lack of cases. The question has peculiarly "engaged the
attention of the bench and bar of the country. The problem has
been scrutinized from every conceivable viewpoint. The arguments
for and against have well nigh been exhausted, and little, if any
thing, new remains to be advanced".1 In their opinions the courts
have frequently gone back to certain English cases disregarding the
points decided but stressing certain dicta which have been uttered
by the judges which decided them. It is curious to note that none of
these cases was really in point. Dunkan v. Findlader, decided in
1839, involved a claim against the treasurer of a turnpike road
which seems to have been a public corporation.2 In Mercy Docks v.
Gibbs, decided in 1864, the defendant was a corporation which pro
vided docking facilities and the plaintiff claimed that a cargo of
guano had come to grief on account of defendant's negligence.3
Herriots' Hospital v. Ross, decided in 1846, involved a claim for
damages on the part of an applicant for rejection from the benefit
of the charity.* Though these and other English cases0 on their
very face did not involve the question in which we are interested
they have nevertheless been drawn on extensively and made to sup
port propositions which would have astonished the judges who wrote
the opinions. It would waste valuable space to no useful purpose
to attempt to trace the use which has been made of these cases by
American Courts. They will therefore be passed by hereafter with
out any further reference.
The question of exemption from tort liability has frequently come
up in connection with municipal corporations such as counties, cities,
towns, villages, and school districts. In such cases it is recognized
individual grievances must not override the public good nor make
1 1918, Magnuson v. Swedish Hospital, 99 Wash. 399, 4o7, 169 Pac. 828.
!6 Clark & F. 894, 2 Macl. & Rob. 911.
8L. R., 1 Engl, and Irish 93 (affirmed, 11 H. L. Cas. 689).
4 12 Clark & F. 5o7.
8 See 19o1, Powers v. Massachusetts Homoeopathic Hospital, 1o9 Fed. 294,
47 C. C. A. 122, 65 L. R. A. 372; 188o, Glavin v. Rhode Island Hospital, 12
R. I. 411, 423, 426, 427, 34 Am. Rep. 675.
396
MICHIGAN LAW REVIEW
that individual advantage must give way to the public welfare and
the public funds the primary source of individual compensation.9
A municipality in performing charitable functions is acting as an
agency of the sovereign and therefore enjoys the sovereign's immu
nity from suit.7 "In providing for the care of the poor, a police
power which resides primarily in the sovereignty is exercised, and
neither the sovereign nor the local governing body to whom such a
power is delegated is responsible for the misfeasance of its officers".8
A municipality is not especially benefited by such work but is per
forming a service essential for the welfare of the public in preserv
ing the peace, preventing the destruction of property or performing
any other kindred obligation and public policy demands that it be
given immunity from liability for the negligence of those who actu
ally perform the duty.9 It has therefore been said that a county is
not responsible for the acts of officers or employees which it appoints
in the exercise of a portion of the sovereign power of the State, by
the requirement of a public law, and simply for the public benefit,
and for a purpose from which it as a corporation derives no benefit.10
"Where care and diligence are used in the selection of a physician the
officers representing the county have done their duty, and where
there is no breach of duty there can be no negligence".11 The same
holds good in regard to school districts,12 boards of school commis
sioners,13 boards of education,1* towns,15 poor districts,18 and cities."
8 1888, Ford v. Kendall Borough School District, 121 Pa. 543, 549, 15 Atl.
812, 1 L. R. A. 6o7.
' 19o1, Powers v. Massachusetts Homoeopathic Hospital, 109 Fed. 2o4,
49 C. C. A. 122, 65 L. R. A. 372 (affirming 1o1 Fed. 896).
1885, Summers v. Daviess County, 1o3 Ind. 262, 264, 265, 2 N. E. 725,
53 Am. Rep. 512.
' 1oo6, Noble v. Hahnemann Hospital, 98 N. Y. Supp. 6o5, 112 App. Div.
663, 18 Ann. N. Y. Cas. 365.
10 1862, Sherbourne v. Yuba County, 21 Col. 113, 81 Am. Dec. 151.
11 1885, Summers v. Davies County, 1o3 Ind. 262, 263, 2 N. E. 725, 53 Am.
Rep. 512.
"1888, Ford v. Kendall Borough School District, 121 Pa. 543, 549, 15 At'.
812, 1 L. R. A. 6o7.
" 19o2, Weddle v. Frederick County, 94 Md. 334, 51 Atl. 289.
" 1876, Finch v. Board of Education, 3o Ohio St. 37, 27 Am. Rep. 414.
"1875, Brown v. Vinalhaven, 65 Me. 4o2, 2o Am. Rep. 7o9; 186o, Biglow
v. Randolph, 8o Mass. (14 Gray) 541.
" 1902, Peasley v. McKean County Poor District, 26 Pa. Co. Ct. Rep. 428.
"1872, Ogg v. Lansing, 35 Iowa 495, 499, 14 Am. Rep. 4o9; 1875, Max-
LIABILITY OF CHARITABLE INSTITUTIONS

It does not stop here, however, but extends to other agencies and subagencies by which the work of the state is carried on. "If a munic
ipal corporation which has a twofold character, one public and the
other private, is exempt from liability for the negligence of its agents
when in the exercise and performance of its powers and duties as an
agency of the government, a public corporation which was created
and exists for no other than governmental purposes must necessarily
be exempt from such liability".18 On this ground federal soldiers'
homes,10 State Insane Asylums,20 Industrial Schools,21 houses of
refuge,22 and city hospitals23 have been exempted from liability. It
has even been held that this exemption extends to a hospital where a
city has entrusted its ambulance service to it.24 Of course the mere
fact that a city is the trustee of a charity does not exempt the charity
from liability.25 All these and similar cases, while they may present
valuable analogies, are not germane to the subject under investiga
tion and are therefore disregarded in the following pages.
While governmental agencies, though they perform charitable
functions, must be eliminated from the discussion, non-charitable
organizations in the technical sense of the word, though they may do
much good in their several ways cannot be accorded any more con
siderate treatment. On the ground that they are not charities cememilian v. New York, 62 N. Y. 16o, 2o Am. Rep. 468 (affirming 2 Hun. 263, 4
Thomp. & C. 491).
1899, Mala v. Eastern State Hospital, 97 Va. 5o7, 511, 47 L. R. A. 577.
34 S. E. 617.
v
" 19o3, Overholser v. National Home for Disabled Volunteer Soldiers, Q>
Ohio St. 236, 247, 67 N. E. 487, 62 L. R. A. 936, 96 Am. St. Rep. 658; 19oo,
Lyle v. National Home, 17o Fed. 842.
" 19o3. White v. Alabama Insane Hospital, 138 Ala. 479, 35 So. 454; 19o6,
Leavell v. Western Kentucky Asylum, 122 Ky. 213, 91 S. W. 671, 28 Ky. Law
Rep. 1 129, 4 L. R. A. (N. S.) 269.
" 1894, Williamson v. Louisville Industrial School, 95 Ky. 251, 24 S. W.
1o65, 44 Am. St. Rep. 243, 23 L. R. A. 2oo, 15 Ky. Law Rep. 629; 19o3, Corbett v. St. Vincent's Industrial School, 177 N. Y. 16, 68 N. E. 997 (affirming
79 N. Y. Supp. 369. 79 App. Div. 334).
a 1885, Perry v. House of Refuge, 63 Md. 2o, 28, 52 Am. Rep. 495.
"1869, Murtaugh v. St. Louis, 44 Mo. 479; 1867, Richmond v. Long, 17
Gratt 375. 94 Am. Dec. 461.
" 19o6, Noble v. Hahnemann Hospital, 98 N. Y. Supp. 6os, 112 App. Div.
663, 18 Ann. N. Y. Cas. 365.
* 19o2, Winnemore v. Philadelphia, 18 Pa. Super. Ct. 625.
398
MICHIGAN LAW REVIEW
teries,2* medical colleges,27 protective departments,28 or fire insurance

patrols,28 private sanitariums,30 commerce hospitals,81 mutual benefit
societies,32 agricultural societies,88 and even Young Men's Christian
Associations84 have been denied exemption. With such and similar
cases we are therefore not concerned. The exemptions of charities
only in the strict and technical sense of the term is the subject of
this paper.
The elimination of governmental agencies and non-charitable ven
tures still leaves certain other situations to be eliminated. Charities
will be held to a fulfillment of their contracts just like any other per
son or corporation. While on ordinary principles they will not be
liable on a contract made by one of their agents without authority,85
an action of assumpsit for a breach of a contract to furnish certain
accommodations is maintainable against them.89 A patient may
therefore recover from a hospital for the breach of a contract to
furnish a competent nurse37 or to take care of a sick child.87*
" 1912, East Hill Cemetery Co. v. Thompson, 53 Ind. App. 417, 97 N. E.
1o36, 1o37; 1888, Donnelly v. Boston Catholic Cemetery Ass'n, 146 Mass. 163,
15 N. E. 5o5.
21 19o7, Medical College v. Rushing, 1 Ga. App. 468, 473, 57 S. E. 1o83.
" 189o, Newcomb v. Boston Protective Department, 151 Mass. 215, 24
N. E. 39, 6 L. R. A. 778; 19oo, Bates v. Worcester Protective Department,
177 Mass. 13o, 58 N. E. 274.
19o9, Coleman v. Fire Insurance Patrol, 122 La. Ann. 626, 48 So. 13o,
21 L. R. A. (N. S.) 81o; 191o, Rady v. Fire Insurance Patrol of New Orleans,
126 La. 273, 52 So. 491, 139 Am. St. Rep. 511; 1915, Sutter v. Milwaukee
Board of Underwriters, 161 Wis. 615, 618, 155 N. W. 127, Ann. Cas. 1917,
E. 682.
"19o2, Galesburg Sanitarium v. Jacobson, 1o3 Ill. App. 26; 1914, Green
v. Biggs, 167 N. C. 417, 421, 83 S. E. 553; 19o6, Stanley v. Schumpert, 117
La. 255, 41 So. 565, 6 L. R. A. (N. S.) 3o6, 116 Am. St. Rep. 2o2.
" 19o7, Gitzhoffen v. Holy Cross Hospital Ass'n, 32 Utah 46, 88 Pac. 691,
8 L. R. A. (N. S.) 1 161; 19o7, University of Louisville v. Hammock, 127 Ky.
564, 32 Ky. Law Rep. 431, 1o6 S. W. 219.
" 19o3, Brown v. La Societe Francaise, 138 Cal. 475, 477, 71 Pac. 516.
" 19o9, Logan v. Agricultural Society, 156 M1ch. 537, 541, 121 N. W. 485.
" 1896, Chapin v. Holyoke Y. M. C. A., 165 Mass. 28o, 42 N. E. 113o.
" 19o4, Wilson v. Brooklyn Homoeopathic Hospital, 89 N. Y. Supp. 619,
97 App. Div. 37.
** 1912, Armstrong v. Wesley Hospital, 17o Ill. App. 81.
" 1899, Ward v. St. Vincent's Hospital, 57 N. Y. Supp. 784, 39 App. Dlv.
624 (see also s. c. 79 N. Y. Supp. 1oo4, 78 App. Div. 317).
"* 1916, Roche v. St. John's Riverside Hospital, 16o N. Y. Supp. 4o1, 96
Misc. 289 (affirmed, 161 N. Y. Supp. 1143).

Another situation which must be eliminated has reference to in
juries occurring in connection with business blocks or other property
in which the funds of a charity are invested. It goes without saying
that such property is used by tenants and the public in exactly the
same manner as if it belonged to an individual or a corporation for
profit. An exemption extended to it might well be disastrous to the
charity. It might not be able to find tenants and would therefore be
inconvenienced rather than benefited by its investment. It has there
fore been held that where a charitable institution lets a part of its
building to a tenant for purposes entirely disconnected with charity
an employee of the institution may recover for injuries suffered
while helping to carry out the contract between the charity and the
tenant.*8 The negligent act of an elevator operator in such a build
ing has therefore been held to be an incident to the management of
the property chargeable as among the items of cost.30
There is still another subject as to which charities will not be
allowed to escape liability. They may not create a nuisance on their
property and after a person has been injured plead their charitable
character as a defense. "If, in their dealings with their property
appropriated to charity, they create a nuisance by themselves or their
servants, if they dig pitfalls in their grounds and the like, there are
strong reasons for holding them liable to outsiders, like any other
individual or corporation. The purity of their aims may not justify
their torts".40
The elimination of governmental and charitable agencies and of
contract liability, nuisance and the like leaves the question of the
liability of charities for personal injuries to beneficiaries, employees,
invitees, and strangers as the proper subject of this paper. It is not
astonishing in view of the high favor with which charities are re
garded by the courts that there are jurisdictions which have gone to
extremes in exempting charitable ventures from all claims for dam
ages whether they have occurred to strangers or patients, whether
"1911, Holder v. Massachusetts Horticultural Society, 211 Mass. 37o, 97
N. E. 63o.
" 19o2, Winnemore v. Philadelphia, 18 Pa. Super. Ct. 625, 63o.
" 19o1, Powers v. Massachusetts Homoeopathic Hospital, 1o9 Fed. 294,
3o4, 47 C. C. A. 122, 65 L. R. A. 372. See also cases cited in 19o6, Leavell v.
Western Kentucky Asylum, 122 Ky. 213, 217, 91 S. W. 671 ; 28 Ky. Law Rep.
1 129, 4 L. R. A. (N. S.) 269.
4<30
MICHIGAN LAW REVIEW
they are the result of the negligence of attendants or the negligence

of trustees or managers in selecting them. Where this doctrine of
universal exemption obtains it is rested on the proposition that the
funds of the corporation are the subject of a trust and that to suffer
a judgment to be rendered against the corporation and to subject its
property to the judgment would be an illegal diversion of trust estate.
The Illinois Court therefore says that an institution "doing chari
table work of great benefit to the public without profit, and depend
ing upon gifts, donations, legacies and bequests made by charitable
persons for the successful accomplishment of its beneficial purposes,
is not to be hampered in the acquisition of property and funds from
those wishing to contribute and assist in the charitable work, by any
doubt that might arise in the minds of such intending donors as to
whether the funds supplied by them will be applied to the purposes
for which they intended to devote them, or diverted to the entirely
different purpose of satisfying judgments recovered against the
donee because of the negligent act of those employed to carry the
beneficient purpose into execution".*1 In Maine it has been argued
that unless charitable institutions are exempted "private gift and
public aid would not long be contributed to feed the hungry maw of
litigation, and charitable institutions of all kinds would ultimately
cease or become greatly impaired in their usefulness".42 The Penn
sylvania Court has worked itself into a frenzy, exclaiming: "How
much better than a thief would be the law itself, were it to apply the
trust's funds contributed for a charitable object, to pay for injuries
resulting from the torts or negligence of the trustee."45 In South
Carolina the court has concluded : "The exemption of public chari
ties from liability in actions for damages for tort rests not upon the
relation of the injured person to the charity, but upon grounds of
public policy, which forbid the crippling or destruction of charities
which are established for the benefit of the whole public to com
pensate one or more individual members of the public for injuries
inflicted by the negligence of the corporation itself, or of its superior
** 19o5, Parks v. Northwestern University, 218 Ill. 381, 385, 75 N. E. 99 r,
2 L. R. A. (N. S.) 556 (affirming 121 Ill. App. 512).
"191o, Jensen v. Maine Eye and Ear Infirmary, 1o7 Me. 4o8, 411, 78
Atl. 898, 33 L- R- A. (N. S.) 141.
" 1888, Fire Insurance Patrol v. Boyd, 12o Pa. 624, 649, 15 Atl. 553, I L.
R. A. 417, 6 Am. St. Rep. 745.
4o1
officers or agents, or of its servants or employees. The principle is

that, in organized society, the rights of the individual must, in some
instances, be subordinated to the public good. It is better for the
individual to suffer injury without compensation than for the public
to be deprived of the benefit of the charity".44 Similar views have
been expressed in Maryland,45 Kentucky,49 Arkansas,47 Missouri.4*
and Tennessee.48 The Massachusetts court has said that "if the
property of the charity was depleted by the payment of damages its
usefulness might be either impaired or wholly destroyed, the object
of the founder or donors defeated and charitable gifts discour
aged."50 No lengthy criticism of this rule will be attempted. Those
who like it are entitled to their preferences. The author prefers to
agree with the opinion of the New Hampshire court that it is com
pletely barren of argument in its favor.91 If natural persons must
be just before they are generous charities certainly should not be
allowed to perpetrate injustice to some in order to bestow charity
on others. If public policy demands such a rule the legislature not
the courts should make the first move.
Fortunately the great majority of the states do not recognize any
such absolute exemption, but make a distinction not only between
44 1916, Vermillion v. Woman's College of Due West, 1o4 S. C. 197, 2oo,
2o1, 88 S. E. 649.
" 1885, Perry v. House of Refuge, 63 Md. 2o, 52 Am. Rep. 495 ; 1917,
Loeffler v. Sheppard and Enroch Pratt Hospital, 13o Md. 265, 1oo Atl. 3o1,
L. R. A. 1917 D. 167.
** 1894, Williamson v. Louisville Industrial School, 95 Ky. 251, 24 S. W.
1o65, 23 L. R. A. 2oo, 24 Am. St. Rep. 243; 19o7, University of Louisville v.
Hammock, 127 Ky. 564, 57o, 1o6 S. W. 219, 32 Ky. Law Rep. 431.
" 19o5, Woman's Christian National Library Ass'n v. Fordyce, 79 Ark.
532, 541, 86 S. W. 417; 191 1, Morris v. Nowlin Lumber Co., 1oo Ark. 253.
268, 14o S. W. 1.
** 19o7, Adams v. University Hospital, 122 Mo. App. 675, 679, 99 S. W.
453; 1909, Whittaker v. St. Luke's Hospital, 137 Mo. App. 116, 117 S. W. 1189.
4' 19o7, Abstein v. Waldon Academy, 118 Tenn. 24, 1o2 S. W. 351, 11 L.
R. A. (N. S.) 1179.
" 19o6, Farrigan v. Pevear, 193 Mass. 147, 149, 78 N. E. 855, 7 L. R. A.
(N. S.) 481, 118 Am. St. Rep. 484. See the discussion of the Massachusetts
situation in 191o, Horden v. Salvation Army, 199 N. Y. 233, 236, 92 N. E.
626, 139 Am. St. Rep. 889, 32 L. R. A. (N. S.) 62.
19o6, Hewett v. Woman's Hospital Aid Ass'n, 73 N. H. 556, 564. 64
Atl. 19o, 7 L. R. A. (N. S.) 496.
4o2
MICHIGAN LAW RSVIEW
beneficiaries and other persons but also between the negligence of

subsidiary employees of a charity and that of its authorities in em
ploying or retaining them.52 The feeling which has led to the latter
distinction has been well expressed in a federal case as follows : "It
would be intolerable that a good Samaritan, who takes to his home
a wounded stranger for surgical care, should be held personally liable
for the negligence of his servant in caring for that stranger."53 The
situation of course is different where the principal has been negligent
in the selection of these servants. "The beneficiaries of charitable
institutions are the poor, who have very little opportunity for selec
tion, and it is the purpose of the founders to give to them skillful
and humane treatment. If they are permitted to employ those who
are incompetent and unskilled, funds bestowed for beneficence are
diverted from their true purpose, and, under the form of a charity,
they become a menace to those for whose benefit they are estab
lished".54 Though the distinction just pointed out has been branded
as a "compromise between two irreconcilable principles",55 it is well
established.59 It has therefor been held that where a charitable hos
pital had delegated the duty of placing hot bottles in beds to an in
competent and wholly inexperienced person employed to wash dishes
and run errands it is liable for the injury thereby sustained by the
plaintiff on the ground that it did not exercise ordinary care in its
selection of servants.57 A complaint by an injured patient alleging
negligence in the selection of patients on the part of the hospital
which negligence caused the plaintiff's injury has therefore been held
not to be demurrable.58
Negligence on the part of trustees and managers is naturally rare
and so are the cases which involve such negligence. Negligence, on
" 1914, Hoke v. Glenn, 167 N. C. 594, 83 S. E. 8o7, Ann. Cas. 1916 E. 25o.
" 19o1, Powers v. Massachusetts Homoeopathic Hospital, 1o9 Fed. 294,
3o4, 47 C. C. A. 122, 65 L. R. A. 372.
M 1914, Hoke v. Glenn, 167 N. C. 594, 597, 83 S. E. 8o7, Ann. Cas. 1916
E. 25o.
M 19o6, Fordyce v. Woman's Christian National Library Ass'n, 79 Ark.
55o, 557, 96 S. W. 155, 7 L. R. A. (N. S.) 485.
1917, Goodman v. Brooklyn Hebrew Orphan Asylum, 165 N. Y. Supp.
949, 178 App. Div. 682. See also 1918, Magnuson v. Swedish Hospital, 99
Wash. 399, 169 Pac. 828.
" 1914, St. Paul's Sanitarium v. Williamson, 164 S. W. 36 (Tex. Civ. App.).
M 1914, Hoke v. Glenn, 167 N. C. 594, 83 S. E. 8o7, Ann. Cas. 1916 E. 25o.

the other hand, of servants is correspondingly frequent and has
therefore been quite often investigated by the courts. The conclu
sion that a charity is not liable for such negligence is almost unani
mous.59 The drift of all the cases clearly indicates a general con
viction that an eleemosynary corporation should not be held liable
for an injury due only to the neglect of a servant and not caused by
its corporate negligence in the failure to perform a duty imposed on
it by law".90 "It would be a hard rule indeeda rule calculated to
repress the charitable instincts of menthat would compel those who
have freely furnished such accommodations and services to pay for
the negligence or mistakes of physicians or attendants that they had
selected with reasonable care".91 The duty of trustees in the exer
cise of charitable functions does, therefore, not extend beyond the re
quirement of using reasonable care to select competent servants and
the demands of substantial justice are met if they are not charged
with the negligence of those so employed.92 Numerous cases illus
trating this proposition could well be cited.93 Nor will the mere fact
that the plaintiff was a pay patient9* and disclaims any right of exe" 1916, Bishop Randall Hospital v. Hartley, 24 Wyo. 4o8, 16o Pac. 385,
Ann. Cas. 1918 E. 1172.
1895, Hearns v. Waterbury Hospital, 66 Conn. 98, 123, 33 Atl. 595, 31
L. R. A. 224.
1894, Union Pacific Railroad Co. v. Artist, 6o Fed. 365, 368, 9 C. C. A.
14, 19 U. S. App. 612, 23 L. R. A. 581. Followed 1895, Pierce v. Union Pacific
R. Co., 66 Fed, 44, 13 C C. A. 323, 32 U. S. App. 48" 19o6, Farrigan v. Pevear, 193 Mass. 147. 151, 78 N. E. 855, 7 L. R. A.
(N. S.) 481, 118 Am. St. Rep. 484.
** 19o5, Parks v. Northwestern University, 218 Ill 381, 75 N. E. 991, 2 L.
R. A. (N. S.) 556 (affirming 121 Ill. App. 512) ; 1876, McDonald v. Massa
chusetts General Hospital, 12o Mass. 432, 21 Am. Rep. 529; 19o9, Thornton
v. Franklin Square House, 2oo Mass. 465, 467, 86 N. E. 9o9, 22 L. R. A. (N.
S.) 486; 1891, Van Tassel v. Manhattan Eye and Ear Hospital, 6o Hun. 585.
15 N. Y. Supp. 62o, 39 N. Y. St. Rep. 781 ; 1893, Haas v. Missionary Society,
26 N. Y. Supp. 868, 6 Misc. Rep. 281; 1895, Joel v. Woman's Hospital, 35 N.
Y. Supp. 37, 2 N. Y. Ann. Cas. 264, 69 N. Y. St. Rep. 43o; 1907, Bruce v.
Central Methodist Episcopal Church, 147 Mich. 23o, 236, 11o N. W. 951, 1o
L. R. A. (N. S.) 74; 19o9, Cunningham v. Sheltering Arms, 119 N. Y. Supp.
1o33, 135 App. Div. 178 (affirming 115 N. Y. Supp. 576, 61 Misc. Rep. 5o1) ;
1913, Wharton v. Warner, 75 Wash. 47o, 135 Pac. 23.5.
" 1894, Downes v. Harper Hospital, 1o1 Mich. 555, 6b N. W. 42, 45 Am.
St. Rep. 427, 25 L. R. A. 6o2; 19o4. Wilson v. Brooklyn Homceopathic Hos
MICHIGAN LAW REVIEW

cution except against the fund derived from pay patients98 ordinarily
make any difference. It is not usual or desirable that the ministra
tions of a charitable hospital should be confined exclusively to the
poor or indigent. Those of moderate means and not a few rich
people resort to such hospitals for treatment especially in surgical
cases. From patients not indigent a payment is commonly permitted
or required. But the degree of care in all cases should be the same.
Certain luxuries may be given to those who pay for them, but no
greater care should be given to the rich person than to the pauper.*8
Nor will it make any difference that the institution is unincorpo
rated,97 or that the patient is committed to it instead of seeking it,08
or that the negligence is very gross, such as operating on the right
side for an inguinal hernia located on the left side.99
Not all the states however have seen their way clear to exempt a
charity from liability to a pay patient for the negligence of a nurse
or physician. Such patients have therefore been allowed to recover
in Rhode Island and Alabama for the negligence of an interne,'0 or
a nurse71 selected with due care by the hospital. Similarly a chari
table hospital in Georgia which accepted a patient for compensation
and without her husband's consent performed an autopsy on her
body "to gratify professional curiosity" has been held liable in dam
ages for the mental suffering and injury caused to the patient's sur
viving spouse.72 It is interesting to note however that the Rhode
Island case was subsequently overruled by the legislature by pro
viding that "no hospital incorporated by the General Assembly of
this state, sustained in whole or in part by charitable contributions or
pital, 89 N. Y. Supp. 619, 97 App. Div. 37; 19o9, Cunningham v. Sheltering
Arms, supra; 19oo, Conner v. Sisters of the Poor, 1o Ohio S. & C. P. Der.
86, 7 Ohio N. P. 514; 19o1, Powers v. Massachusetts Homoeopathic Hospital,
1o9 Fed. 294, 47 C. C. A. 122, 65 L. R. A. 372 (affirming 1o1 Fed. 896).
" 191o, Gable v. Sisters of St. Francis, 227 Pa. 254, 75 Atl. 1o87, 136 Am.
St. Rep. 879.
" 19o1, Powers v. Massachusetts Homoeopathic Hospital, supra.
" 19o6, Farrigan v. Pevear, 193 Mass. 147, 78 N. E. 855, 7 L. R. A. (N. S.)
481, 118 Am. St. Rep. 484.
" 1915, Smith v. State, 154 N. Y. Supp. 1oo3, 169 App. Div. 438.
** 19o1, Collins v. New York Post Graduate Medical School and Hospital,
69 N. Y. Supp. 1o6, 59 App. Div. 63.
n 1879, Glavin v. Rhode Island Hospital, 12 R. I. 411, 34 Am. Rep. 675.
" 1915, Tucker v. Mobile Infirmary Ass'n, 191 Ala. 572, 68 So. 4, L. R. A.
1915 D 1167.
" 19o7, Medical College v. Rushing, 1 Ga. App. 468, 57 S. E. 1o83.

endowments, shall be liable for the neglect, carelessness, want of skill
or for the malicious acts, of any of its officers, agents or employees in
the management of, or for the care or treatment of, any of the
patients or inmates of such hospital".73
It will be next in order to pass in review the various grounds on
which charities have been exempted from liability for the torts of
their carefully chosen employees. The argument already noticed
that it is a diversion of a trust fund to permit such a liability is
clearly insufficient to explain the distinction between the negligence
of trustees and managers and the negligence of servants and em
ployees. It must be clear as day that a judgment given on either
ground will equally divert the trust fund. "Certainly liability for
negligence in the selection of servants may impair the integrity of
the trust estate just the same as liability for the negligence of ser
vants though of course not so frequently".7* Followed to its logical
conclusion the trust theory must result in an absolute immunity
from damages of any character.75 "If the rule exists it must neces
sarily apply to all torts and in all cases".79 While the theory can
therefore be used in supporting a total exemption of charities from
tort liability it will not serve to support the distinction above
pointed out.
Some courts have aattempted to justify the rule by arguing that the
rule of respondeat superior has no application to the situation. The
Connecticut court has therefore stated that this rule is one of public
policy to the effect that an injury done by one who is irresponsible
must be answered for by his superior, when for his own convenience
and emolument such superior has given the wrongdoer the oppor
tunity to commit the injury ; that a charity does not come within its
reason as it derives no benefit from the acts of its servants and that
therefore the rule has no application to it.77 Similarly, the Massachu
setts court has said that acting for the benefit of the public solely in
representing a public interest does not involve such a private pe" General Laws Rhode Island, 1896, page 538.
" 191o, Hordern v. Salvation Army, 199 N. Y. 233,
92 N. E. 626, 139
Am. St. Rep. 889, 32 L. R. A. (N. S.) 62.
" 1915, Tucker v. Mobile Infirmary Ass'n, 191 Ala. 572, 582, 68 So. 4,
L. R. A. 1915 D 1 167.
"1911, Kellogg v. Church Charity Foundation, 112 N. Y. Supp. 566, 569,
128 App. Div. 214.
" 1895, Hearns v. Waterbury Hospital, 66 Conn. 98. 123-126, 33 A*b/5.
31 L. R. A. 224.
406
MICHIGAN LAW REVIEW
cuniary interest as lies at the foundation of the doctrine of

respondeat superior.'* And the Wisconsin court has stated that
"since charitable hospitals perform a quasi-public function in minis
tering to the poor and sick without any pecuniary profit to themselves,
the doctrine of respondeat superior should not be applied to them in
favor of those receiving their charitable services".79
The trouble with this theory is that it proves too much. If a
charity is not to be responsible on this ground for the negligence of
its employees it should equally not be held liable for the negligence of
its officers and managers. If it is not to be liable to its patients it
should equally be exempt from liability as against strangers. There
would, therefore, seem to be no distinction whether the servant care
lessly injures one while in the hospital or in the street.80 The trustees
"could not in case of a tort committed by one of their members apply
the funds in their hands to the payment of a judgment recovered
therefor".81 A charity thus freed from legal restraint instead of
being a blessing might very well become a curse. Instead of doing
charity it might be doing injustice.
Some courts have hit upon a waiver theory to explain the situa
tion. It has been said that any citizen who accepts the service of a
charitable hospital does so upon the implied assurance that he will
assert no complaint which has for its object or for its result a total
or partial destruction of the institution itself.82 From this it is con
cluded that by accepting the benefit he by implied contract exempts
his benefactor from liability for the negligence of the carefully
chosen servants of the charity.83 The objection to this theory is that
19o6, Farrigan v. Pevear, 193 Mass. 147, 15o, 78 N. E. 855, 7 L. R. A.
(N. S.) 481, 118 Am. St. Rep. 484.
1916, Morrison v. Henke, 165 Wis. 166, 17o, 16o N. W. 173. See cases
cited in 19o8, Kellogg v. Church Charity Foundation, 112 N. Y. Supp. 566,
568, 128 App. Div. 214.
"19o6, Noble v. Hahnemann Hospital, 98 N. Y. Supp. 6o5, 6o7, 112 App.
Div. 663, 18 N. Y. Ann. Cas. 365.
"1888, Fire Insurance Patrol v. Boyd, 12o Pa. 624, 647, 15 Atl. 553, 1 L.
R. A. 417, 6 Am. St. Rep. 745"19o7, Adams v L"ni\ersity Hospital, 122 Mo. App. 675, 679, 68o, 99 S.
W. 453 1914, Thomas ,'. German General Benevolent Society, 168 Cal. 183, 188,
141 Pac. 1186; 19o6. Farrigan v. Pevear, 193 Mass. 147, 149, 78 N. E. 855, 7
I.. R. A. (N. S.) 4''1. "8 Am. St. Rep. 484; 19o1, Powers v. Massachusetts
TT~mceopathic Hosr &). 09 Fed. 294, 3o3, 3o4, 47 C. C. A. 122, 65 L. R. A. 372.

it does violence to the facts. "A patient entirely unskilled in legal
principles, his body racked with pain, his mind distorted with fever,
is held to know, by intuition, the principle of law that the courts after
years of travail have at last produced."84
It will not be necessary to accept any of the above theories. There
is a logical explanation based on facts which clarifies the situation.
The doctrine of qualified immunity where no negligence appears in
the selection or retention of agents or servants can properly and logi
cally be rested in most cases upon the theory that the physicians and
surgeons in attendance upon patients in hospitals or the nurses who
are under their direction are not the servants of the hospital in the
true sense because as to the nature and manner of their service they
are not under the direction of the defendant, but that they become
and remain the servants of the patient as long as they are in attend
ance upon him and that hence the charity has performed its full duty
when it has exercised due care in the selection of competent persons
for such service.88 Hence the New York Court has held that a
hospital is not responsible for an unauthorized operation performed
on a patient by the doctors and nurses connected with it.88 A hos
pital in Maine has been absolved from blame for the death of a
patient by falling out of a window where the patient occupied a
private room being placed there by her physician who retained full
charge of her case and directed the nurses and house doctors who
gave her such attention as her case called for.87 Even the Rhode
Island court in holding a hospital liable for the negligence of a nurse
has expressly recognized that where the hospital does not agree to
do more than furnish hospital accommodations, leaving the patient
to find his own physician or surgeon the hospital is plainly not liable
for their torts on the ground that they are not its servants.88
In order to recover it will therefore be necessary to show that the
relation of master and servant actually existed at the time of the in" 1914, Lindler v. Columbia Hospital, 58 S. C. 25, 36, 81 S. E. 512. The
extract is from the dissenting opinion.
1912, Basabo v. Salvation Army, 35 R. I. 22, 28, 29, 85 AtJ. 12o, 42 L.
R. A. (N. S.) 11o9.
"1914, Schloendorff v. New York Hospital, 211 N. Y. 125, 1o5 N. E. 92,
52 L. R. A. (N. S.) 5o5, Ann. Cas. 1915 C. 581.
" 191o. Jensen v. Maine Eye and Ear Infirmary, 1o7 Me. 4o8, 78 Atl. 898,
33 L. R. A. (N. S.) 141.
" 1879, Glavin v. Rhode Island Hospital, 12 R. I. 411, 423. 34 Am. Rep. 675.
408
MICHIGAN LAW REVIEW
jury. It follows that a hospital which keeps an ambulance at a livery

stable the owner of which furnishes the horse and driver, is not re
sponsible for a collision caused by the negligence of such driver. It
does not employ the driver, though it can bring such pressure to bear
as would force the owner of the stable to discharge him.80 A uni
versity has been held not to be liable for the acts of its agents in set
ting gopher guns on its campus through which the plaintiff was in
jured. Though the preservation of its grounds are desirable it is
not organized to engage in landscape gardening.80
It has been seen that the distinction with which we have just been
dealing is well established. It has also been seen that the mental
process by which it has been reached is far from uniform. In fact
the cases on this subject present an almost hopelessly tangled mass
of reason and unreason such as is not often encountered in the law.
They show a marked difference in the process by which they reach
results. This appears in the tests adopted to ascertain what is a cor
porate duty and a corporate neglect, in the confusion of the quasi
trust imposed on each corporation with the relation of a strictly legal
trustee to his trust fund and especially in the various means by which
courts have sought to escape from the patent injustice of applying
the extreme doctrine of respondeat superior to the personal defaults
of the employees of charitable institutions.91 The question is one on
which the courts have been fertile in drawing subtle distinctions,
many of them irrelevant to the point for decision, or, at least, leading
to no principle by which the conclusions reached can be reconciled.92
Many of the opinions rest on reasons or grounds which may well be
challenged as fallacious.98 However, "the identity of conclusion
reached, though by different roads, is a strong proof of its correct
ness"."
"1911, Kellogg v. Church Charity Foundation, 2o3 N. Y. 191, 96 N. E.
4o6, 38 L. R. A. (N. S.) 481, Ann. Cas. 1913 A. 883.
" 1912, Hill v. Tualatin Academy, 61 Ore, 19o, 198, 121 Pac. 9o1.
" 1895, Hearns v. Waterbury Hospital, 66 Conn. 98, 123, 33 Atl. 595, 31
L. R. A. 224.
"19o9, Whittaker v. St. Luke's Hospital, 137 Mo. App. 116, 118, 117 S.
W. 1189.
*19o8, Kellogg v. Church Charity Foundation, 112 N. Y. Supp. 566, 567,
128 App. Div. 214.
" 19o1. Powers v. Massachusetts Homoeopathic Hospital, 1o9 Fed. 294,
3o4, 47 C. C. A. 122, 65 L. R. A. 372.

Hospitals maintained by railroad companies and other corpora
tions either exclusively out of their own funds or in whole or part
out of deductions made in the wages of its employees for the purpose
of providing attendance to sick and injured employees present an
interesting problem. On the one hand employers of large numbers
of workmen should certainly be encouraged to establish hospitals for
their employees by exempting them from damage suits for the negli
gence of their properly selected employees.85 On the other hand it
may well be said that it is in the pecuniary interest of such employers
to maintain a state of health and capability among its employees as
instrumentalities of its business, which consideration in a real sense
results in a profit.98 In determining whether such a hospital is a
charity the question whether the fund taken from the wages of its
employees is used to make a profit or is so small as to be insufficient
for the purpose makes an important difference.87 If the fund is
raised with a view to financial profit it will not be entitled to any con
sideration as a charity.98 Where, however, it is maintained solely by
the company,98 or is not maintained with a view to profit though a
deduction is made from the wages of its beneficiaries100 it will be
* 1915, Nicholson v. Atchison, Topeka & Santa Fe Hospital Ass'n, 97
Kans. 48o, 155 Pac. 92o.
" 19o9, Zumwalt v. Texas Central R. Co., 56 Tex. Civ. App. 567, 571.
121 S. W. 1133 (reversed, 1o3 Tex. 6o3, 132 S. W. 113).
" 19oo, Hanway v. Galveston Ry. Co., 94 Tex. 76, 58 S. W. 724.
** 1899, Texas & Pacific Co. v. Connaughton, 2o Tex. Civ. App. 642, 5o
S. W. 173; 19o2, Sawdey v. Spokane Falls & N. R. Co., 3o Wash. 349, 7o Pac.
972, 94 Am. St. Rep. 88o; 19o8, Phillips v. St. Louis & S. F. R. Co., 211 Mo.
419, 111 S. W. 1o9, 124 Am. St. Rep. 786.
" 1895, Eighmy v. Union Pacific R. Co., 93 Iowa 538, 61 N. W. 1o56, 27
L. R. A. 296.
100l916, Arkansas Midland Ry. Co. v. Pearson, 98 Ark. 399, 411, 135 S.
W. 917, 34 L. R. A. (N. S.) 317; 1915, Nicholson v. Atchison, Topeka &
Santa Fe Hospital Ass'n, 97 Kans. 48o, 155 Pac. 92o; 19o3, Haggerty v. St.
Louis, K. & N. W. R. Co., 1oo Mo. App. 424, 74 S. W. 456; 191o, Barden v.
Atlantic Coast Line R. Co., 152 N. C. 318, 328, 67 S. E. 971; 19o3, Poling v.
San Antonio & A. P. R. Co., 32 Tex. Civ. App. 487, 75 S. W. 69 ; 19oo, Gal
veston H. & S. A. R. Co. v. Hanway, 57 S. W. 695 (affirmed 94 Tex. 76, 58
S. W. 724) ; 191o, Texas Cent. R. Co. v. Zumwaldt, 1o3 Tex. 6o3, 132 S. W.
113 (reversing 56 Tex. Civ. App. 567, 121 S. W. 1133) ; 191o, Wells v. Ferry
Baker Lumber Co., 57 Wash. 658, 1o7 Pac. 869, 29 L. R. A. (N. S.) 426;
1895, Richardson v. Carbon Hill Coal Co., 1o Wash. 556, 648, 39 Pac. 95;
1894, Union Pacific Ry. Co. v. Artist, 6o Fed. 365, 9 C. C. A. 14, 19 U. S. App.
MICHIGAN LAW REVIEW

treated as a charity and hence will not be held responsible for the
negligence of its carefully selected surgeons and other employees.
Where, however, it has failed to exercise ordinary care in the selec
tion of these servants it will be held to be liable.101 Hence a com
plaint alleging that the plaintiff became a member of the fund and
that he was injured through the negligence of its physician is demur
rable for not stating that the association failed to exercise proper
care in their selection.102
It has been seen that some courts hold that a waiver on the part
of the beneficiary of a charity is the real ground of exemption. This
certainly does not apply to a person who is not a beneficiary. "The
law may imply an intention on the part of the donors of the chari
table funds that such funds shall be used for the charitable purpose
only, and then imply an acquiescence in this intention by all persons
who accept the benefit of the charity, and in that way spell out a
waiver by such persons of any responsibility of the institution for the
negligence or torts of its servants. If the courts want to exempt
such institutions, this may be a tenable, though some may think a
rather ingenious or far fetched ground on which to do it. But no
such acquiescence or waiver can be attributed to outsiders".108 There
are no valid grounds upon which it can be held that the rights of
those who are not beneficiaries of a trust can be in any way affected
by the will of its founder. The rights of such persons are created
by general laws, and the duties of those administering the trust to
respect those rights are also created by general laws. A person
should not be allowed to nullify the law of the state, even in creating
a public charity. If the advantage accruing from such a charity is
to be the ground for exemption the argument should be addressed to
the legislative and not to the judicial branch of the government.10*
712, 23 L. R. A. 581. Followed 1895, Pierce v. Union Pacific R. Co., 66 Fed.
44, 13 C. C. A. 323, 32 U. S. App. 48.
,M 19o7, Illinois Central Ry. Co. v. Buchanan, 126 Ky. 288, 1o3 S. W. 272,
31 Ky. Law" Rep. 722 (reversing 27 Ky. Law Rep. 1193, 88 S. W. 312) ; 189.1,
Richardson v. Carbon Hill Coal Co., 6 Wash. 52, 32 Pac. 1o12, 2o L. R. A.
338.
"*I9o3, Plant System Relief and Hospital Department v. Dickerson, 118
Ga. 647, 65o, 45 S. E. 483.
"19o8, Kellogg v. Church Charity Foundation, 112 N. Y. Supp. 566, 57o,
128 App. Div. 214.
"* 19o7, Bruce v. Central M. E. Church, 147 Mich. 23o, 252, 253, 11o N.
W. 951, 1o L. R. A. (N. S.) 74.

A charity founded to benefit mankind should not be allowed to avoid
doing justice to its very employees. It, like other persons, must be
made to be just before it is generous. Besides a rule which exempts
it from liability may actually prevent its growth or even bring about
its extinction. It might conceivably become impossible for it to pro
cure employees if these employees are not protected from injustice.
A young woman employed by a hospital at ten dollars a month who
as an additional consideration receives instruction and gathers ex
perience in practical nursing has, therefore, been allowed to recover
damages from the hospital for contracting diphtheria from a patient
whom she was ordered to nurse without being told the nature of his
ailment.105 Other similar cases have been decided by other courts.108
What is true of an employee certainly holds doubly good in regard
to a stranger. It would be manifestly unjust and contrary to public
policy to hold that a person run over and injured on a public high
way by a horse and wagon belonging to a charity and driven negli
gently by its servant would not be entitled to recover against the
charity while a person similarly injured by the negligence of the
employee of an express company would be allowed to recover against
it. A hospital therefore is liable for such an injury though it has not
been negligent in selecting its servant.107 Persons negligently run
over by the ambulance of a hospital,108 or by the automobile of a
library100 have, therefore, recovered damages for their injuries.
Midway between servants and strangers there are invitees who
have certain rights the breach of which is attended with legal conI08 19o6, Hewett v. Woman's Hospital Aid Ass'n, 73 N. H. 556, 64 Atl.
19o, 7 L. R. A. (N. S.) 496.
1M 19o7, Bruce v. Central M. E. Church, 147 Mich. 23o, 11o N. W. 951,
1o L. R. A. (N. S.) 74; 1913, Mclnerny v. St. Luke's Hospital Ass'n, 122
Minn. 1o, 15, 141 N. W. 837 ; 1912, Armendarer; v. Hotel Dieu, 145 S. W.
1o3o, 1o31 (Tex. Civ. App.) ; 1914, Hotel Dieu v. Armendarez, 167 S. W. 181
(Tex. Civ. App.).
"* 1912, Basabo v. Salvation Army, 35 R. I. 22, 43, 44, 85 Atl. 12o, 42 L.
R. A. (N. S.) 1 1o9.
1M19o8, Kellogg v. Church Charity Foundation, 112 N. Y. Supp. 566, 128
App. Div. 214; 1917, Van Ingen v. Jewish Hospital of Brooklyn, 164 N. Y.
Supp. 832, 99 Misc. 655 (affirmed, 169 N. Y. Supp. 412, 182 App. Div. 1o).
1M 1913. Johnson v. Chicago, 258 Ill. 494, 1o1 N. E. 96o (affirming 174 Ill.
App. 414). But see 19o6, Fordyce v. Woman's Christian Library Ass'n, 79
Ark. 55o, 96 S. W. 155. 7 L- R. A. (N. S.) 485.
412
MICHIGAN LAW REVIEW
sequences.110 Hence a physician injured in a hospital while accom

panying a patient has been allowed recovery. Similarly mechanics
injured while making repairs on the premises of a charitable institu
tion have recovered the same as if the damage had occurred on the
property of any other owner.111
To sum up: A number of states have, following English dicta,
exempted charities from all tort liability against beneficiaries as well
as others on the ground that public policy demands that the trust
fund be not diverted to paying damages. The great majority of the
courts, however, do justice to employees, strangers and invitees by
holding the charity to the same degree of care exacted from other
entities. In regard to beneficiaries they hold the charity liable for
injuries resulting from the negligence of the trustees or managers in
selecting incompetent servants, but not for the negligence of servants
carefully selected. This rule applies also to the various relief funds
created by corporations, provided that these funds are not used for
the purpose of making a financial profit. It does not apply of course,
to non-charitable ventures or to charities which are conducted by the
public authorities. While the rule is well established the reason
given by the courts to support it are very various indeed. The most
satisfactory reason advanced is that a charity has performed its
whole duty when it tenders to a beneficiary a competent servant and
that thereafter such servant becomes the servant of the patient rather
than the servant of the charity.112
Carl Zo1xman.
Milwaukee, Wis.
""1914, Hospital of St. Vincent v. Thompson, 116 Va. 1o1, 81 S. E. 13,
51 L. R. A. (N. S.) 1o25. But see 1885, Benton v. City Hospital, 14o Mass.
13, 1 N. E. 836, 54 Am. Rep. 436.
IU 1918, Marble v. Nicholas Senn Hospital Ass'n, 123 Neb. 343, 167 N.
W. 208.
1oo9, Hordern v. Salvation Army, 199 N. Y. 233, 92 N. E. 626, 139 Am.
St. Rep. 889, 32 L. R. A. (N. S.) 62; 19o9, Gartland v. New York Zoological
Society, 12o N. Y. Supp. 24, 135 App. Div. 163.
M1ch1gan
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STUDENTS, "APPOINTED BY THE FACULTY
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Charles E. Turner, of Illinois
NOTE AND COMMENT
The Permanent Internat1onal Court of Just1ce.For the first time
in history leading powers both great and small have been able to agree upon
a plan for an international court of justice. The plan was formulated last
summer by an advisory committee of jurists sitting at The Hague. Since
then it has been submitted to the Council and the Assembly of the League
of Nations and has been approved. It will come into operation as soon as
the project has been ratified by a majority of the nations belonging to the
League.'
The Pennanent Court of International Justice, as it is called, will be
more than a mere panel from which arbitration tribunals may be constituted
from time to time, and it will be much less than a supreme court of the world.
It will be more than a mere panel of arbitrators because it is to be a per
manent institution established to develop and apply rules of law. It will
1 The text of the project with a commentary by J. B. Scott may be found in
Pamphlet No. 35 recently issued by the Division of International Law of the Carnegie
Endowment for International Peace. Other data taken frorh current periodicals and
press reports.
414
MICHIGAN LAW REVIEW
be less than a supreme court because, as approved by the League, it is to

have no obligatory jurisdiction. The draft-scheme provides for organization,
competence, and procedure. The procedure is to be very simple and in gen
eral much like the system already developed in arbitrations at The Hague.
There will be written proceedings, consisting of the submission of cases,
counter-cases, and, if necessary, replies, and also oral proceedings consisting
of the hearing of witnesses, experts, agents, and counsel. Details of pro
cedure are wisely left to be settled by the Court itself. Decisions are to be
made by majority vote; the judgment must state the reasons upon which
it is based; dissenting judges may have the fact of their dissent, but not
their reasons, recorded in the judgment.
The matter of competence is more important. It was readily agreed
that the Court should decide cases submitted by the parties under general or
special convention. It was also agreed that in the absence of general or
special convention, jurisdiction should be limited to disputes of a justiciable
nature between states which the states themselves are unable to settle by
diplomacy. Should jurisdiction within these limits be obligatory or volun
tary? The advisory committee recommended obligatory jurisdiction in all
controversies of a legal nature involving (a) the interpretation of a treaty,
(b) any question of international law, (c) the existence of any fact which,
if established, would constitute a breach of an international obligation, (d)
the nature or extent of reparation to be made for the breach of an interna
tional obligation, and (e) the interpretation of a sentence passed by the
Court. The recommendation was well received by the smaller nations. It
was opposed by the great powers, however, and the project was finally
approved with the obligatory feature eliminated. The five categories provide
an admirable enumeration of the kinds of controversy which the Court is
specially qualified to decide, but the submission of such controversies remains
optional with the parties. The Court is to apply, in the order named,
treaties, custom, general principles of law common to all civilized peoples,
and the judicial decisions and juristic writings of the various nations. It is
also required to give advisory opinions on questions referred to it by the
League Council or Assembly.
The real difficulty, and one which threatened to prove insuperable, was
the problem of the Court's composition. There are great powers and small
powers, strong powers and weak powers, powers which are advanced in the
civilization which is characteristic of the twentieth century and others which
are backward. The great powers will never submit to any tribunal domi
nated by the small, weak, and backward. The lesser powers know all too
well the dangers that inhere in the predominance of the great. How may
a tribunal be constituted among the fifty or more nations of the earth which
will satisfy the strong, safeguard the weak, be fairly representative, and yet
be small enough to function as a court? This problem prevented agreement
upon a plan before the world war. It threatened to disrupt the advisory
committee in 192o. The committee's membership was divided equally between
nationals of great and small powers. Members from the more powerful
NOTE AND COMMENT
4'5
states contended for permanent representation on the proposed court for

the great powers. Members from the smaller states insisted upon equality.
Elihu Root, in what may some day be regarded as the crowning achievement
of his career, piloted the committee to a satisfactory compromise. Taking
advantage of the existing League organization, and ably seconded by Lord
Phillimore, Mr. Root proposed a small court elected by the concurrent vote
of the League Council, in which the great powers are dominant, and the
League Assembly, in which all powers are represented equally. This pro
posal was accepted and became the basis for the plan eventually adopted.
The Court will consist at the outset of fifteen members, eleven judges
and four deputy judges. The members are to be elected from a list of can
didates nominated by the national groups which constitute the panel of the
so-called Permanent Court of Arbitration. Each national group may nomi
nate two candidates. If the Council and Assembly fail to agree on fifteen
members after three sittings, a small conference committee, called a Com
mittee of Mediation, will attempt to agree upon candidates to be recom
mended for the unfilled positions. If this does not result in an election, the
members already elected to the Court may fill the vacancies by selection
from among the candidates who have received votes in either the Council
or the Assembly. Election is for nine years and members are eligible for
reelection. While national political office is declared incompatible with a
position on the Court, it seems to have been the opinion of the advisory
committee that this should not disqualify members of national courts or
legislative bodies. If a state which is party to a controversy submitted to
the Court has no national on the Court, it is assured the right to name a
judge who shall sit during the trial and disposition of that particular con
troversy. The Court will sit at The Hague.
The plan naturally makes a few concessions to the civil law countries
for which the justification is none too obvious to lawyers trained in a dif
ferent system. There are several features which seem open to criticism,
notably the provision which makes French the sole official language and the
method of nominating candidates. These, however, are after all secondary
matters which may be amended as experience suggests. The project on the
whole is a remarkable one and one that does credit to the sagacity and states
manship of the jurists who labored on the advisory committee. This project
alone, it is believed, would more than justify the retention of the existing
organization of the League.
E. D. D.
Pr1ce Regulat1on by the State and Interstate Commerce.The liti
gation which has resulted from a recent attempt of the State of Indiana to
regulate the price of coal should lead to a determination of the extent of
three important but very general principles of police power. The first and
most important of these, from the point of view of this discussion, is that
the State has the power to regulate returns of businesses "affected with a
public interest." In the first attack upon the Indiana law, it was held that
the business of mining and selling coal under existing economic conditions
416
MICHIGAN LAW REVIEW
was within this class.1 At this time, the commission created by the act had
not entered upon the performance of its duties and several questions arising
under sections of the bill concerning these duties were deemed premature.
These sections, however, and subsequent orders of the commission pursuant
thereto, have raised the question as to the extent of the remaining principles
referred to. The first of these is that the State may do whatever is reason
ably necessary to render effective a valid exercise of the police power. The
other is that an otherwise valid exercise of the police power may be sus
tained, despite the fact that it incidentally interferes with interstate com
merce, in the absence of conflicting Federal legislation. The language in
which these principles have been stated in numerous cases, literally applied,
would sustain' the provisions of the Indiana law under discussion. It may
be conceded at once, however, that they have never been applied to a situa
tion closely analogous to that which arises under the coal law.
In order to prevent reducing to a nullity the power to regulate prices,
the law attempts to insure an available supply of coal at the prices fixed by
empowering the commission to apportion among the operators the amount
necessary for domestic purposes, except for manufacturing, and to require
each to produce and offer for sale each month his proportion of the whole,
with forfeiture of the license provided for by the act as a penalty for dis
obeying the orders of the commission, and a severe penalty for mining coal
without a license. The validity of this portion of the act was successfully
attacked in Vandalia Coal Co. v. The Special Coal and Food Commission of
Indiana,' the District Court of the United States for the district of Indiana
holding that these sections of the act constituted a direct interference with
interstate commerce, inasmuch as coal severed from the ground becomes an
article of commerce and the owner of the commodity has a right, so far as
the State is concerned, to sell and to contract to sell his entire output to
citizens of other States, and that this right cannot be interfered with by
compelling the sale of a certain amount in the State. The court also indi
cated that, aside from the interstate commerce question, the State has no
power to compel the production and sale of coal by imposing the alternative
of quitting business.
Before the principle relating to interstate commerce can become involved,
there must obviously be an otherwise valid exercise of the police power
which affects interstate commerce incidentally. So here, the question as to
the validity of compulsory production and sale, enforced through the alter
native of compelling a cessation of the business of mining, must be deter
mined in favor of the State before it becomes worth while to consider the
effect on interstate commerce. In view of the evident purpose of these
sections of the act to make price regulation a benefit rather than a detri
ment to the people of the State, their validity would seem to depend on the
application of the second principle : whether they can be said to be reason
ably necessary to make effective a valid exercise of the police power.
Fed.
1 American Coal Mining Co. v. Special Coal and Food Commission of Indiana,
(D. C. Ind., Sept. 6th, 1920). Discussed in 19 M1ch. L. Rev. 74.
2
Fed.
(D. C. Ind., Nov. 27th, 1920).
NOTE AND COMMENT
417
Examples of the applications of this principle which seem to bear directly

upon the present problem are to be found in the cases of New York ex rel.
Silz v. Hesterburg* and Sligh v. Kirkwood.' In the former, a law providing
a punishment for the possession of imported game during the closed season
was held valid in order to protect the local game, admittedly a valid exercise
of the police power. In the latter, a Florida statute prohibiting the shipment
of unripe citrus fruits out of the State, in order to protect the citrus fruit
industry of the State, was upheld. These cases illustrate the principle.
Conceding that the business of mining and selling coal is "affected with a
public interest," so that prices may be regulated,8 the valid exercise of the
police power exists. To sustain these measures, it must be shown that they
are reasonably necessary in order to render price regulation effective. It
requires little imagination to predict the result of a measure providing
merely for the regulation of the price of coal, with no means of compelling
the sale of coal at that price. Coal in the particular State would simply dis
appear from the market, either going to States where the seller is not com
pelled to accept reasonable prices for his product, or, where possible, being
stored until the law is recognized as an economic impossibility, and prices,
of necessity, rise to their old level. Nearly three hundred years ago Parlia
ment passed a law* providing for the regulation of the price of coal in
London, and included the following remedy for an anticipated result : "And
if any ingrosser or retailer of such coal shall refuse to sell as aforesaid,
that then the said Lord Mayor and aldermen and justices of peace respec
tively are hereby authorized to appoint and impower such officer or officers
or other persons as they shall think fit to enter into any wharf or other
place where such coals are stored up; and in case of refusal taking a con
stable to force entrance, and the said coals to sell or cause to be sold at
such rates as the said Lord Mayor and aldermen and justices respectively
shall judge reasonable, rendering to such ingrosser or retailer the money
for which the said coab shall be so sold, necessary charges being deducted."
Certainly there is some ground to support the conclusion of the legislature
as expressed in the act, that the measures are reasonably necessary to the
accomplishment of the principal purpose of the act, and the Supreme Court
has said,' "If no state of circumstances could exist to justify such a statute,
then we may declare this one void, because in excess of the legislative power
of the State. But if it could, we must presume it did."
If the requirement of compulsory production and offer for sale, enforced
through the alternative previously referred to, can be sustained under this
principle, a power of the State, valueless alone, becomes valuable, and the
State has a means of protecting its people from extortion on the part of
211 U. S. 31.
4 237 U. S. 52.
For the purpose of this discussion, it is assumed throughout that the first case
involving the law was correctly decided and that the Supreme Court will affirm the
power of the State to regulate the price of coal.
16 & 17 Cab. II, c. 2 (1661). Also 2 W. & M., c. 7 (1690), and 7 4 8. Wm. Ill,
c. 36, (1696).
' Munn v. Illinois, 94 U. S. 113; Antoni v. Greenhow, 107 U. S. 769.
4<8
MICHIGAN LAW REVIEW
those controlling the supply of a necessity. Is the part of the power which
makes the whole worth utilizing, being sustainable as an exercise of the
police power, to be rendered invalid because the entire production of coal
within the State cannot be shipped in interstate commerce if the act is
enforced, without subjecting the operators to the penalty of retiring? The
only principle which seems to offer any hope for the act is the third of those
already referred to, that an otherwise valid use of the police power is not
invalid although it interferes with interstate commerce, provided the inter
ference is incidental and there is no Federal law conflicting.
The basis upon which the legislature proceeds is a recognition in the
act* that the coal deposits of the State are sufficient to supply all legitimate
demands of intra- and interstate commerce for decades to come, and any
intention of prohibiting the sale or transportation of coal in interstate com
merce is disavowed. The evil which the law seeks to combat is not the
shortage of supply, but extortionate charges. The purpose is not that the
State should obtain a larger supply of its coal than before, at the expense of
other States, but that the regulation of prices may not become futile by
driving the commodity away from the local markets. The interference is
incidental, therefore, at least in the sense that it is not the primary purpose
of the act.
Moreover, if the statement of the legislature concerning the deposits of
the State is to be taken at face value, the quantum of interference may not
be great. It is easily conceivable that in many instances individual operators
might be unable to dispose of their entire output in interstate commerce,
however much they might desire to do so. However, there may be numer
ous other cases where the operator could dispose of his entire production
in interstate commerce if he were free to do so. Here there would be ar.
undoubted interference.
What is the meaning of the term "incidental" as used in cases where
the principle has been laid down? The cases in which some form of the
proposition has been stated are innumerable, but few of them are of any
value in the present discussion, and none is closely analogous. Two very
small groups of cases approach the question from opposite sides, but there
is a wide gap between, and somewhere in that gap lies the solution of this
problem. In the one group are such cases as Geer v. Connecticut;9 New York
ex rel. Site v. Hesterburg, supra; Hudson Water Co. v. McCarter," and
Sligh v. Kirkwood, supra. In the other are West v. Kansas Natural Gas
Co.;a Haskell v. Kansas Natural Gas Co.;" Corvnn v. Indiana, etc., Mining
Co.? and perhaps Leisy v. Hardin1* and Schollenburger v. Penna."
8 Act Creating a Special Coal and Food Commission of Indiana, Section 10.
161 U. S. 619.
10 209 U. S. 349.
"221 U. S. 229.
11 224 U. S. 217.
" 120 Ind. 575.
M 135 U. S. 100.
M171 U. S. 1.
NOTE AND COMMENT
419
Geer v. Connecticut and New York ex rel. Sils v. Hesterburg deal with
statutes enacted for the protection of game, a valid exercise of the police
power. In the first case, a statute forbidding the shipping of game out of
the State during certain seasons of the year was sustained. The second has
already been discussed. In both the objection was made that the statutes
directly interfered with interstate commerce. In both the statutes were sus
tained because the interference was held to be incidental.
In Hudson Water Co. v. McCarter, a New Jersey statute forbidding the
piping of water out of the State was sustained as a valid exercise of the
police power and an incidental interference with interstate commerce. In
Sligh v. Kirkuood, a Florida statute already discussed was sustained on the
ground that the protection of the citrus fruit industry of the State was a
valid exercise of the police power and that the interference with interstate
commerce was incidental.
All of these can be differentiated from the case of coal. The game and
water cases can be distinguished on the ground that the owner in both cases
has but a qualified property right. Sligh v. Kirkwood can be differentiated
on the ground that it is within the power of the State to say that unripe fruit
is not a legitimate article of commerce.
A discussion of West v. Kansas Natural Gas Co. sufficiently covers the
principle for which the other group stands. The State of Oklahoma had
passed an act prohibiting the piping of oil and gas out of the State for the
purpose of conserving the supply for its own people. The Supreme Court
of the United States held (three justices dissenting) that the act was a direct
interference with interstate commerce and invalid. The following proposi
tions were quoted with approval : "No State, by the exercise of, or by the
refusal to exercise, any or all of its powers, may prevent or unreasonably
burden interstate commerce within its borders in any sound article thereof.
No State, by the exercise of, or by the refusal to exercise, any or all of its
powers, may substantially discriminate against or directly regulate interstate
commerce or the right to carry it on." This case limits the principle upon
which the coal law depends. However advantageous it may be to the people
of a State to retain within its borders a natural resource, it cannot be done.
Between the two groups of cases there seems to be a wide gap, and it is
believed that the Indiana law will fall somewhere within that gap. In order
to be sustained it must be differentiated from the second group of cases.
Two distinctions at once suggest themselves. The primary purpose of the
Oklahoma law was to prohibit the exportation of the resource. The primary
purpose of the Indiana law is to make price regulation a benefit and not a
detriment to the people of the State. Then, too, there is an obvious distinc
tion in the quantum of the interference. The Oklahoma interference was
complete. The Indiana interference may be very slight.
In New York ex rel. Sils v. Hesterburg, Justice Day distinguished the
case at bar from Schollenburger v. Penna., where a law prohibiting the impor
tation of oleomargarine, a legitimate article of commerce, was held invalid,
though for the purpose of protecting the welfare of the people of the State,
42o
MICHIGAN LAW REVIEW
on the ground that in the latter case the interference was the direct purpose
of the act, whereas in the former the purpose was the protection of the local
game and the interference was incidental. The language of the court, both
in this case and in Sligh v. Kirkwood, seems to indicate that the term inci
dental refers, not to the quantum of the interference, but to the primarypurpose. If this is the test to be applied, the Indiana law is clearly distin
guishable from the Oklahoma law. From the legalistic standpoint, the ques
tion would seem to be rather doubtful, with no case directly in point or very
close. Language is to be found in the two widely divergent groups of cases
which mark the bounds within which the question falls, tending to support
the law on the one hand and perhaps to declare it invalid on the other.
Inasmuch as the Supreme Court found sufficient merit in the Oklahoma law
to result in a split, there would seem to be at least a f1ghting chance for the
Indiana law.
On the economic side, the case for the law may be summed up as fol
lows: The starting point is: The State has the power to regulate the price
of coal. In the absence of regulation a certain amount of coal is being sup
plied to the people of the State at extortionate prices. If the same amount
of coal can be obtained at the reasonable price set by the State, the people
will be greatly benefited and the people of adjoining States will not be harmed.
If coal cannot be obtained at the price set by the State, the law will, of
course, be extremely detrimental. Provided the State is to have the power
of regulating prices at all, and provided it confines itself to the necessities
of the case, why should it not be able to interfere with interstate commerce
to that extent. The principle that an otherwise valid exercise of the police
power can be sustained, though it incidentally interferes with interstate
commerce developed when the conception of the police power was confined
to health, morals and safety. Since then the police power has developed
considerably beyond that conception. Logically, it follows that the princi
ples which developed in the early conception of the police power and fur
thered the effectiveness of its exercise should not stand still, but should be
extended into new fields when the necessity arises.
A. W. B.
Voluntary Parol Trust w1th Impl1ed Power of Revocat1on.In the
recent case of Russell's Executors v. Passmore, 1o3 S. E. 652, in the Supreme
Court of Appeals of Virginia, it appeared that the donor had made a volun
tary transfer of certain bank stock about six months before his death. Sev
eral years later, the donee having died without making any disposition of
the stock, the donor's infant children brought suit in the name of their guar
dian against the donee's executors to establish an alleged secret parol trust
of the stock. There were two reputable witnesses who knew something
about the transaction. One of them, who was present and participated in
the initial transfer of the stock, testified that the stock was to be held "in
the event of the donor's death" for the benefit of the donor's eldest son. The
other witness, who was the donor's administrator and was present at his
death, testified that the donor said a few hours before his death that the
NOTE AND COMMENT
421
stock was held by the donee for the benefit of the donor's children. There
was also testimony by an employee of the donee that the donee had said a
few months before his death that he had some money for the donor's chil
dren. And it appeared that on three occasions prior to his death the donee
had made remittances for the donor's children. On the strength of this evi
dence, the court held that the original transfer was an executed gift in trust
for the oldest son, that this gift was conditioned by an implied power of
revocation, and that the original trust was later partially revoked and a
different and enlarged trust created for the benefit of all the children.
The implied power of revocation in this case must be supported solely
by the testimony of the witness who participated in the initial transfer. The
donor's declaration a few hours before death, remittances made by the
donee under circumstances which tended to indicate that they were intended
for all the children and the employee's testimony as to the donee's admission
a few months before death are all inadmissible to show such an implied
power. They may be admitted to show that the stock continued to be held
in trust, or that the original trust, if revocable, had been revoked and another
created in its stead. But they are inadmissible to show that the initial trans
fer was intended to be revocable under the settled principle of evidence that
statements made by the transferrer, after transfer of title, are not receivable
as admissions against the transferee. Tierney v, Fitspatrick, 195 N. Y. 433;
2 W1gmore on Ev1dence, 1o85. It must be assumed, therefore, that a
power of revocation was implied in reliance upon the testimony that the
stock was to be held "in the event of the donor's death" for the benefit of
the eldest son. The opinion makes it reasonably clear that the revocability
of the original trust was based upon this testimony.
As a general rule, a trust once completely and validly created, whether
by a simple declaration of trust or by transfer in trust, and whether gra
tuitous or for consideration, cannot be revoked unless a power of revocation
has been reserved. Viney v. Abbott, 1o9 Mass. 3oo; Swing v. Warner, 47
Minn. 446; 1 Perry on Trusts [6th ed.], 1o4. There seems, however, to
have been a slight reaction at some points from the liberality with which
voluntary trusts were formerly enforced. Following Ex parte Pye, 18 Ves.
14o, there was at first an inclination to torture imperfect gifts into declara
tions of trust and enforce them as such. Morgan v. Malleson, 1o Eq. 475.
But this inclination was soon repudiated, and it became well settled that an
imperfect gift will not be given effect as a declaration of trust. Cardoza v.
Leveroni, 233 Mass. 31o; Scott's Cases on Trusts, 151, note. In a few
instances voluntary trusts which are formally perfect have been held revo
cable. In the so-called savings bank trust cases, instead of regarding a
deposit in a savings bank in the depositor's name in trust for another as an
irrevocable trust, courts have frequently treated it as a tentative trust or
trust with implied power of revocation. In re Totten, 179 N. Y. 112; Walso
v. Latterner, 143 Minn. 364 ; 4 M1nn. L. Rev. 56. See Scott's Cases on Trusts,
224, note. Compare Casalis v. Ingraham, 11o Atl. (Me.) 359; 19 M1ch. L.
Rev. 356. This anomalous result seems to be justified, however, if it can
422
MICHIGAN LAW REVIEW
be justified at all, by factors which are more or less peculiar to savings bank
deposits in trust. See Beaver v. Beaver, 117 N. Y. 421, 43o-1. Voluntary
transfers in trust have been treated as revocable in a number of cases.
There have been cases of voluntary settlement or gift in trust without express
power of revocation in which the court has seemed to place upon the bene
ficiary the burden of proving that the donor intended to make the gift irre
vocable. See Couts v. Acworth, 8 Eq. 558; Everitt v. Everitt, 1o Eq. 4o5;
Garsney v. Mundy, 24 N. J. Eq. 243 ; Rick's Appeal, 1o5 Pa. 528. These cases
were cases of unusual hardship, however, in which the donor might have
been relieved without recourse to so dubious a principle. Compare Massey
v. Huntington, 118 Ill. 8o. It has sometimes been said that the omission
from a voluntary disposition in trust of a clause reserving a power of revo
cation raises a presumption that it was omitted by mistake. See Russell's
Appeal, 75 Pa. 269; Aylsworth v. Whitcomb, 12 R. I. 298. But such state
ments are believed to be unsound on principle and opposed to the weight of
authority. See Sands v. Old Colony Trust Co., 195 Mass. 575 ; Souverbye
v. Arden, 1 Johns. Ch. 24o.
It may be urged, of course, with some plausibility, that the evidence in
the instant case, although meager, indicated more than anything else an
intention to make a gift in trust for the eldest son at the donor's death in
case the donor died without revoking. This construction appeals to the
present writelr as a very dubious one. Why imply a power of revocation in
an executed gift to one to be held "in the event of the donor's death" in
trust for another? Nothing is more certain than death. The qualifying
clause is an appropriate way of indicating the time at which the beneficiary's
interest is to commence. Why attribute to it any greater significance? Com
pare Massey v. Huntington, 118 Ill. 8o; Viney v. Abbott, 1o9 Mass. 3o0.
Probably the case should be viewed as another manifestation of a somewhat
curious reluctance to commit irrevocably one who has made a voluntary
declaration or transfer in trust. So regarded the principle of the decision
seems clearly objectionable. The only authority cited by the Court, Sterling
v. Wilkinson, 83 Va. 791, was really a case of imperfect gift which the court
could not perfect after the donor's death, and anything said about implied
power of revocation seems to have been mere dictum. Everyone would
agree at the present day that equity has taken a sound position in refusing
to give effect to imperfect gifts. But has not the pendulum swung too far
when revocability is implied as readily as in the instant case? It would be
unfortunate if pawnship equity should be permitted to impair the stability
of gifts in trust.
R. E G.
An1malsDamages by Trespass1ng Ch1ckens.P alleged he had a
large feed barn, filled with grain, and a garden with growing vegetables, on
his lot surrounded by a lawful fence four and one-half feet high, over which
some of D's 4oo chickens crossed from her adjoining lot, and destroyed grain
and vegetables to the value of $6oo. The trial court sustained D's demurrer.
Reversed. Adams Bros. v. Clark (192o), Ky. , 224 S. W. 1o46.
NOTE AND COMMENT
4*3
The court says : "By the common law of England the owner of domes
tic animals, including fowls, was required to keep them on his own prem
ises, and was liable for their trespass on the lands of another." This common
law, as it was in 16o7 (4 James 1), was the common law of Virginia, and
later, when the State of Kentucky was formed, by constitutional provision
became the common law of that state.
The court also said that while a statute provided "no recovery could be
had for the destruction of property [by trespassing animals], unless it was
surrounded by a fence four and one-ha'.f feet high, so close that cattle could
not creep through," applied to cattle, and had not changed the common law
as to fowls. Also, that the storing of grain on P's premises was not an
attractive nuisance and an invitation to D's chickens to enter and eat thereof.
A pathetic argument was made on behalf of the chicken owner that she
was trying to bring down the high cost of living for her family by engaging
in the chicken industry. The court, however, thought the plaintiff's efforts
to bring down the high cost of living of his family by raising garden truck
was equally commendable, and he should not be expected to feed his neigh
bor's chickens also.
The court cites several cases involving horses, cattle, and hogs. The
only fowl cases cited are State v. Bruner (1887), 111 Ind. 98, to the effect
that a fowl is an animal within the statutes relating to cruelty to animals;
and McPherson v. James (1896), 69 Ill. App. 337, holding that the owner of
turkeys is liable for damages in trespass on a neighbor's unfenced property,
although not for a penalty for allowing them to stray, under statute naming
certain domestic animals, but not turkeys.
That a fowl is an animal within cruelty and similar statutes is generally
held. Holcomb v. Van Zylen (1913), 174 Mich. 274, Ann. Cas. 1915 A 1241,
with note.
There are very few cases holding that the owners of trespassing fowls
are liable for the damages they do ; most of the cases are those holding that
the person on whose property they trespass has no right to kill them. John
son v. Patterson (184o), 14 Conn. 1 (poisoning trespassing chickens, defend
ant liable) ; Matthews v. Fiestel (1853), 2 E. D. Smith, N. Y. 9o (poisoning
trespassing geese) ; Clark v. Keliher (1871), 1o7 Mass. 4o6, 4o9 (no right
to kill trespassing chickens) ; Reis v. Stratton (1887), 23 Ill. App. 314; State
v. Porter (1893), 112 N. C. 887 (killing trespassing pigeons is cruelty to
animals) ; State v. Neal (1897), 120 N. C. 613 (trespassing chickens could
be impounded at common law, and needlessly killing them is cruelty to ani
mals) ; James v. Tindall (1913), 27 Del. 413.
In Taylor v. Granger (1896), 19 R. I. 41o, it was held that case instead
of trespass was the proper action where a city negligently allowed the pigeons
from one of its parks to fly over and defile plaintiff's premises and annoy
him by the noise. In Lapp v. Stanton (1911), 116 Md. 197, an allegation in
an action of trespass that defendant's game chickens continually trespassed
on plaintiff's premises, roosted in his shed and on his new wagons and plows,
etc., to his damage, was held to be sufficient on demurrer.
424
MICHIGAN LAW REVIEW
It was early held in Missouri, Iowa, and many other states that the
common law relating to trespassing cattle was not suited to their condition,
and was not in force in those states. Gorman v. Pacific R., 26 Mo. 441 ; Waaner v. Bissell, 3 la. 396. In such states there are fencing statutes that affect
the subject materially. See note 3, Bt. Comm. 211 [Lewis's Ed.].
In Evans v. McLalin (1915), 189 Mo. App. 31o, where a farmer's chick
ens were alleged to have trespassed and destroyed a neighbor's crops, a
demurrer was sustained, and the owner of the chickens was held not liable.
This is based on the statute, and although directly in conflict with the prin
cipal case, admits the common law to be as ruled in that case.
In Keil v. Wright (19o7), 135 la. 383, an injunction was asked against
the owner of chickens which repeatedly trespassed on plaintiff's premises
and destroyed his crops. The defendant denied the facts, and claimed that,
since he was solvent, an action at law would be an adequate remedy. The
trial court found for the plaintiff and granted the injunction. In the supreme
court the defendant, in argument, urged that "chickens were commoners"
and had a right to roam at will without being considered trespassers. The
court refused to rule on this, since it was not pleaded nor considered by the
trial court, and so affirmed the decision of that court. Six years later, in
Kimple v. Scl1afer (1913), 161 la. 659, relying on the Keil case, plaintiff
asked an injunction to restrain the defendant from permitting his 2oo chick
ens to trespass on plaintiff's land and eat the oats he had planted there to
such an extent that he was obliged to resow it two or three times. The
defendant pleaded that "chickens were free commoners, and that the owners
of cultivated land must fence against them" ; that plaintiff had no lawful
fence enclosing his land ; and that his remedy, if any, was impounding or
suing for damages. The court, by Deemer, J., affirms the Keil case and
holds that an injunction will lie to prevent domestic animals from trespass
ing. He also says that at common law the owner must keep his domestic
animals at home; that trespass would lie for failure to do so; that the ani
mals could be impounded ; that these rules were early held inapplicable in
Iowa; that the matter was now regulated by statute, in reference to several
kinds of domestic animals ; that nothing had been done as to chickens, except
in cities, indicating that in the country chickens are free commoners, and
they, turkeys, ducks, geese, peacocks, and guinea hens have been so consid
ered from the beginning of the state; that it is much easier to fence poultry
out than to fence it in ; and that until the legislature made it obligatory the
court would not adopt a rule requiring the owner to fence them in, nor
enjoin him from permitting them to escape.
In all these cases it is assumed that the common law allowed an action
for damages, or distress damage feasant, for injuries done by trespassing
domestic animals. This is undoubtedly true as to horses, cattle, sheep, and
hogs. Yet by the laws of Ine (c. 69o), if a ceorl's close "be unfenced and
his neighbor's cattle stray in through his own gap, he shall have nothing
from the cattle; let him drive it out and bear the damage; but if there be
a beast which breaks hedges and goes in everywhere, and he who owns it
NOTE AND COMMENT
425
will not or cannot restrain it, let him who finds it in his field take it out
and slay it, and let the owner take its skin and flesh, and forfeit the rest."
LI. 4o, 42. The Welsh law was similar I Thorpe's Anc1ent Laws and
Inst. 127.
In the year books of Ed. II (13o7-1326) there are numerous cases of
replevin for cattle taken damage feasant, indicating that it was a common
remedy at that time; and in Boyden v. Alspath (13o8), Y. B. 2 Ed. II, 87,
pl. 29, a trespassing ferret might be taken damage feasant; also a greyhound.
De la More v. Thwing (13o8), Y. B. 2 Ed. II, 176, pl. 98a. In 1481, Y. B.
2o Ed. IV, fo. 1ob, where D had common in 2oo acres of land adjoining P's
land, and D's beasts entered P's unenclosed land without D's knowledge,
being driven there by wild dogs, and did damage, Brian, C. J., and Littleton,
J., held D was liable in trespass for the damage done, and the fact that the
wild dogs chased the cattle there made no difference. A hundred years later
the law was stated the same, relying on this case. Dyer, 372, pl. 10 (1581).
It seems the law has been thus since that time as to trespassing cattle, those
dangerous to crops. There seem to be no chicken cases in England.
In the Welsh law above referred to it was said : "The owner must make
his garden so strong that beasts cannot break into it ; and if it be broken
into there can be no redress, except for the trespass of poultry and geese."
1 Thorpe, 127, note.
In Boulton's Case (1597), 5 Co. 1o46, it was stated that one was not
liable for making a dove-cot from which the pigeons trespassed on the neigh
bor's land. This, however, was said to be contrary to Y. B. 4 H. VI, pl. 1o,
and 27 Ass., pl. 6; and in Dewell v. Sanders (1619), Cro. Jac. 492, 79 Eng.
Rep. 419, Doderidge, Croke, and Houghton, JJ., agreed that if pigeons come
upon my land I may kill them, and the owner has no remedy. Montague, J..
held contra, for the owner has a property in the pigeons. In Taylor v.
Newman (1863), 4 B. & S. 89, 122 Eng. Rep. 343, the Dewell case was
affirmed. And in Webb v. McFeat (1878), 22 Jour. Juris. (Sc.) 669, the
owner of a carrier pigeon was held to have no remedy when it was killed
by D's cat, both the pigeon and the cat trespassing on neutral ground at the
time. So in McDonald v. Godfrey (189o), 8 Pa. Co. Ct. 142, the plaintiff
had no remedy for the killing of his canary, on his own premises, by the
defendant's trespassing cat.
On the other hand, in Ferrer v. Nelson (1885), 15 Q. B. D. 258, Pollock,
J., held that one was liable in case for overstocking his land with 1,5oo
pheasants so that 3oo of them trespassed cm plaintiff's premises and injured
his crops. In Hadwell v. Righton (19o7), 76 L. J. (K. B.) 891, where a
bicyclist was injured by a fowl flying into his wheel, in the road, the court
seemed to think that the owner of the chicken might have been liable if it
had been trespassing at the time.
In Boulton's Case, above, it was held that overstocking D's ground with
rabbits, which strayed on P's premises and did damage, did not make D
liable, for P might kill them. This is contrary to the Ferrer case, above.
426
MICHIGAN LAW REVIEW
Compare Steam v. Prentice (1918), 68 L. J. (K. B.) 422 (defendant not

liable for the depredations of rats harbored in his boneyard).
It is generally held that one is not liable for the mere trespass of his
dog, not known to be dangerous to persons; ordinarily, of course, a dog is
not dangerous to crops. Brown v. Giles (1823), 1 Car. & P., 28 R. R. 769 :
Woolf v. Chalker (1862), 31 Conn. 121, 128; Read v. Edwards (1864), 17
Com. B. N. S. 245; Sander v. Teape (1884), Q. B.. 51 L. T. N. S. 263;
Buchanan v. Sweet (19o8), 1o8 N. Y. S. 38; Van Etten v. Noyes (19o8),
112 N. Y. S. 888; Doyle v. Vance (1880), 6 Vict. L. R. 87, contra.
Similar rulings have been made as to deer, Keilway, 3o, Y. B. 1o Hen
VII, 6, pl. 12 (1495); Brady v. Warren [19oo]. 2 I. R. 632, 661; State v.
Ward, 17o la. 185; and as to bees, Brown v. Eckes, 16o N. Y. S. 489; Earl
v. Van Alstine (1858), 8 Barb. 63o; O'Gorman v. O'Gorman [19o3], 2 I. R.
573Of course, fowls may become a nuisance because of the dust, odor, or
noise they cause. Ireland v. Smith (1895), 3 Sc. L. T. Rep. , 33 Scot. L.
R. 156; Desmond v. Smith, 9 Green Bag, 55o, 41 Sol. J. 167.
It is submitted the common law, as set forth in the principal case, should
be considered the correct rule, where damage is done by any such animals
in the exercise of their well-known natural propensities, unless due to the
intervening act of God or the independent act of some third party, or similar
excuse. See "Responsibility at Common Law for Keeping Animals,"
Thomas Beven, 22 Harv. L. Rev. 465 ; Robson, Trespass by An1mals.
H. L. W.
Future Interests 1n Recent Statutes and CasesRema1nders, Dev1ses
and Uses.To the layman, or the beginner in the study of property law,
the intricate sinuosities of Shelley's Case, and Archer's Case, of contingent
remainders and their destructibility, of indestructible executory devises and
uses, springing and shifting, seem inexplicable, incomprehensible, and use
less. But a longer estate than for the life of him who must perform the
feudal services on which his tenure rested is a concept that would have
seemed equally strange and impossible either to lay or legal mind when
feudalism was in fullest flower. Pure feudalism had no room for future
estates, but only for present holdings, based on present services, to be per
formed by the present tenant while he lived. An estate to A was not an
estate for A to pass to another, either inter vivos or at death, but to keep,
and only while he performed the personal services that went with it. When
estates to A and his heirs came to be recognized the concept was still of a
life estate to A, and "to his heirs" merely indicated that at the end of A's life
the estate in natural course would go to him who should be his heir, and so
on in indefinite succession. 15 Col. L. Rev. 68o.
It was a sign that feudalism was already beginning to crumble when it
began to be suggested that an estate might be created carrying a present
interest in A and a future interest in his heirs, and the development of the
concept was a long process. It is more than possible that the rule in Shel
NOTE AND COMMENT
427
ley's Case had never been if the first appearance of the principle now
known by that name (in 1324) had not preceded by more than a century
the recognition of the possibility of a destructible contingent remainder (in
143o). See Lord Macnaghtert in Van Grulten v. Foxwell [1897], App. Cas.
658. For if the remainder to the heirs of A in Shelley's Case had been
treated as a contingent remainder after A's death, and therefore destructible
by A in his life, free alienability by A would have been secured without
executing in him and adding to his life estate, as under the Rule in Shelley's
Case, the remainder expressly limited to his heirs.
But feudalism and its fruits have long been gone. It might be supposed
that the reason for the law having ceased, the law itself would have dis
appeared. Quite otherwise. Indeed, Lord Macnaghten's remark in the case
referred to, that the subject "rarely comes up for discussion nowadays," is
not justified by an examination of the recent reports. They are full of
cases involving contingent remainders, Shelley's Case, Archer's Case, etc.,
not merely in such a state as Illinois, where they are most exuberant and
intricate; Moore v. Reddel, 259 Ill. 36; Aetna Insurance Co. v. Hoppin, 214
Fed. 928 (a 1914 Illinois case), but in many other states as well. The cases
show we must say rather "the reason of the law having changed, the law
has changed also," but curiously enough, almost always by statute, not by
court decision. And the statutes hark back to the old phrases and terminol
ogy and the old rules, so that one can understand the language of the new
rule only by a thorough study of the old cases. In England at least three
attempts have been made to do away with the frailty of contingent remain
ders, and not yet is it completely gone. A comprehensive statute was enacted
in 7 & 8 V1ct., c. 76, s. 8, but it seems to have so affrighted the conveyancers,
see 3o Harv. L. Rev. 227 ff., that it was repealed and a new statute enacted
the next year, 8 & 9 V1ct., c. 1o6. This cured so little that thirty years later
the Contingent Remainders Act of 1877, 4o & 41 V1ct., c. 33, was enacted,
which partly restored 7 & 8 V1ct., but left some cases unprotected.
We may compare a Massachusetts and an Illinois statute. The latter is
not free from references to "supposed rules," and to "double possibilities,"
a much talked of and utterly repudiated term, but it is comparatively simple,
and attempts in sweeping terms to resolve contingent remainders to present
day needs, to make such a rule as we may suppose would have been adopted
if defunct feudal institutions had never been. Mass. Gen. Acts, 1916, c. 1o8,
provides that "a contingent remainder shall take effect, notwithstanding any
determination of the particular estate (Cf. 8 & 9 V1ct., above), in the same
manner in which it would have taken effect if it had been an executory devise
or a springing or shifting use (Cf. 7 & 8 V1ct., repealed by 8 & 9 V1ct.),
and shall, as well as such limitations, be subject to the rule respecting remote
ness known as the rule against perpetuities, exclusively of any other sup
posed rule respecting limitations to successive generations or double possi
bilities." How impossible an understanding of the language of this statute,
without a knowledge of the ancient estates and their history l To one who
understands, the last clause shows an intent to bring the Massachusetts law
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MICHIGAN LAW REVIEW
to the position contended for by Professor Gray in his attack on Whitby v.

Mitchell, 42 Ch. 494, 44 Ch. 85, Gray Rule Aga1nst Perpetu1t1es, Appendix
K, and the lively dispute there referred to between the author and Mr.
Charles Sweet, 3o Harv. L. Rev. 226. The Massachusetts statute in effect
abolishes contingent remainders, and resolves them, if they are limitations
in a will, to executory devises; if in a deed, to springing or shifting uses.
They are thus transformed, supposedly in accordance with the intent of the
devisor or grantor, from destructible contingent remainders into indestruc
tible devises or uses. Freedom of alienation is preserved by subjecting them
to the same rule against perpetuities that was invented to check executory
devises and springing and shifting uses, i. e., future estates cannot be limited
to take effect beyond a life or lives in being and twenty-one years. This
common law period is the rule in Massachusetts. Minot v. Paine, 23o Mass
514 (1918) ; Gray v. Whittemore, 192 Mass. 367 (1916). If this period is
too long to tie up land the remedy is for the legislature.
The Illinois statute referred to is Rev. St. 1874, c. 3o, s. 6: "In cases
where, by the common law, any person or persons might hereafter become
seized, in fee tail, of any lands, tenements or hereditaments, by virtue of
any devise, gift, grant or other conveyance, hereafter to be made, or by any
other means whatsoever, such person or persons, instead of being or becom
ing seized thereof in fee tail, shall be deemed and adjudged to be and become
seized thereof, for his or her natural life only, and the remainder shall pass
in fee simple absolute to the person or persons to whom the estate would,
on the death of the first grantee, devisee or donee in tail, first pass, according
to the course of the common law, by virtue of such devise, gift, grant or
conveyance." Here again to one not steeped in the ancient law the language
is meaningless. Its labored language in terms of the law of the past required
the impossible. In Illinois primogeniture had been abrogated. Property could
not "pass according to the course of the common law" to the eldest son, but
must be distributed among all the heirs of the first taker. In 1 I1x. L. Rev.
322 ff., Mr. Kales has well pointed out that the court has made over the
statute by high-handed construction. Moore v. Riddel, 259 Ill. 36. As made
over, it ties up the land for one generation at least as the feudal lords in
vain tried to do by the Statute de Donis, for it gives a life estate to the first
taker, with remainder in fee to persons not born perhaps till near the death of
the life tenant. That makes it possible to tie up the Marshall Field estate
for possibly seventy-five years from the death of the owner, a serious clog
upon alienation in a country changing so fast as ours. There seems urgent
need of a shortened period for the rule against perpetuities, but so firmly
is the old law upon us that no courts and few statutes have cut down the
period. New York, followed by Michigan and some other states, has fixed
the limit at two lives in being. This has some things to commend it, though
Mr. Gray finds in the increase of litigation in New York serious objections.
Gray, Rule Aga1nst Perpetu1t1es, Sec. 749 ff.
The clumsy Illinois statute doubtless was intended merely to abolish
estates tail. This could have been done by giving to the life tenant an estate
NOTE AND COMMENT
429
in fee simple absolute, or with contingent remainder over to the heirs. Twice
at least a fairly simple draft of a bill intended to do that has been submitted
to the Illinois legislature, but the old law stands.
In the centuries old contest over future estates there have been two lead
ing and conflicting ideas, intent and freedom of alienation, action and reac
tion on which have molded the law of future estates. To give effect to the
intent of the testator Lord Mansfield pronounced his famous, or infamous,
opinion in Perrin v. Blake, I W. Bl. 672, and precipitated the fierce and
humorous contest so entertainingly described in 3 Campbell's L1ves of the
Just1ces, 3o5. In Jesson v. Wright, 2 Bligh 1, Lord F.ldon emphasized free
dom of alienation, and brought the rule back to a rule of law to be rigidly
applied, even though defeating intent. He assumed to regard the general as
distinguished from the particular intent, but would have done better to agree
with Lord Redesdale in sticking to the law defeating intent As Cockburn,
C. J., put it in Jordan v. Adams, 9 C. B. (N. S.) 483, "the fatal words once
used" the law "inexorably and despotically fixes on the donor" all the con
sequences of bringing his provisions within the rule, "although, all the while,
it may be as clear as the sun at noonday that by such a construction the
intention of the testator is violated in every particular." As to contingent
remainders, the Massachusetts act very sensibly allows free play to intent
for a period by preserving them from the destruction that might have been
their fate at common law. Beyond that period the restrictions cannot operate ;
indeed, the limitations must not try to tie up beyond, or they are void in
their inception. Such in a general way is the effect of the various provisions
of the Michigan statutes, C. L. 1915, c. 22o, and of such a code as that of
Georgia, Code of 191 1, Sixth Title, c. 3.
The importance of the ancient rules and the history of their develop
ment have been touched upon. The digests show how constantly cases are
before the courts, and seem to justify the statutes that have tried to modify
the rules to suit present day needs, for Illinois, which has refused to make
many changes, shows an unrest and dissatisfaction to such an extent as to
give color to the claim that she has as many cases as all the other states
together. The three latest bound volumes of the Illinois reports illustrate
the fact that under the old rules one can hardly be sure what kind of a
future estate he has in hand until the supreme court has pronounced, not
once merely, but for the last time Not only do the lawyers differ, which is
to be expected if the opposing sides are to have counsel, and the judges dis
agree, which is not unusual, but the same court on consideration at different
times of the same instrument is not unlikely to reach different conclusions.
See, for example, Cutler v. Garber, 289 Ill. 2oo (Oct , 1919), findmg the
future interests to be executory, which in 261 Ill. 378 had been held to be
contingent remainders. Under the Massachusetts statute this would have
made no difference. In 292 Ill. attention may be called to Cole v. Cole, in
which, at page 17o, the old doctrine of destruction of contingent remainders
by merger is held to be still flourishing, and to Bender v. Bender, at page
363, where the contingent remainderman, there also a reversioner, is recog
43
MICHIGAN LAW REVIEW
nized as having an interest which he may protect by suit. This latter is

touched upon in Du Bois v. Judy, 291 Ill. 34o, in which the court attacks as
though they were new in the state the property problems of the case, stating
in full the rule in Shelley's Case, defining remainders, and laying down the
law as to the destructibility of contingent remainders which has hardly been
doubted since Chudleigh's Case, 1 Co. 12oa. In Gray v. Shinn, 293 Ill. 573
(June, 192o), the court feels called upon again to define contingent and
vested remainders, and announces the well-known fact that a contingent
remainder falls with the death of the life tenant before the vesting of the
remainder, page 579, as it would not if Illinois had the modern statute, and
Cf. Lewin v. Bell, 285 Ill. 227. At 293 Ill. 581, it is pointed out that there
is no rule to prevent voluntary destruction of contingent remainders by a
conveyance for that express purpose by the life tenant to a third person to
bring about a merger. But should there not be such a rule, coupled with a
rule against remoteness? It is for the legislature to say. Litigants seem to
want it, for the interesting thing is not so much that the courts should again
and again restate these elementary matters as though they were new and
not centuries old, but that there should seem to be such repeated and per
sistent refusal to accept the rules. The court contents itself, as probably it
must, with a restatement of the oft stated rules. Change in a rule of prop
erty so long acted upon should be made by the legislature, and then not
retroactively, but Illinois refuses to change, though curiously enough agita
tion there has been more insistent than elsewhere. See 1 IIl. L. Rev. 311.
In addition to the above cases, see Sellers v. Rike, 292 Ill. 468, fully stating
the Rule in Shelley's Case and rigidly applying it, though it overrides intent.
Noth v. Noth, 292 Ill. 536, dealing with an executory devise and an expec
tancy; McBride v. Clcmons (Ill., June, 192o), 128 N. E. 283, holding a lim
itation to be an executory devise and indestructible, arid not a destructible
contingent remainder; and Biwer v. Martin (Ill., October, 192o), 128 N. E.
518, applying the common law rule as to destruction of contingent remain
ders by merger, and the modified rule as to conveyance of such remainders
by way of an estoppel or release. Cf. Kenwood Trust & Savings Bank v.
Palmer, 285 Ill. 552, holding a contingent remainder cannot be the subject
of sale, as it could be in Michigan and other states where it is alienable,
descendible and devisable. Graff v. Rankin, 25o Fed. 15o, may be cited as
a recent case in which the Federal court applied the Illinois law to contin
gent remainders in a devise to one "Illinois Riggs and her lawful issue,"
with certain added limitations. Truly, this was an Illinois case, and the
peculiar thing about many of the above cases is that if the Illinois law had
been changed the questions in dispute would not have arisen.
In other states there still are, and no doubt always must be, cases on
future interests, even in those that have done most to square the law with
present day conditions and desires. In Trull v. Tarbell (May, 192o), 127 N.
E. 541, the Massachusetts court construed interests as vested in preference
to contingent. The Michigan statute as to perpetuities had to be construed
in Cary v. Toles, 21o Mich. 3o (April, 192o), and Woolfit v. Preston, 2o3
NOTE AND COMMENT
43t
Mich. 5o2 (Dec., 1918). The Michigan court is justified in its position in
In re Blodgctt's Estate, 197 Mich. 455, that full force may be given to intent,
since the statute has relieved contingent remainders of their common lawinfirmities, and by proper restrictions has protected the public against the
perpetuities that might result. The law favors vested estates, but will rec
ognize others where the intent to create them is clear. It does not favor
joint tenancies, but nevertheless permits them. The language to create con
tingent remainders must, however, be plain and unambiguous. In re Shumway's Estate, 194 Mich. 245. That such language may be held by a trial judge
and by the Supreme Court to show clearly two perfectly opposite things
appears in Colby v. IVortley, 2o5 Mich. 6o9. Expectant estates having been
made descendible, devisable, and alienable, it matters less than formerly
whether estates are vested or contingent, but there are still vital distinctions.
This note is already too long to permit further detailed notice of cases.
The present importance in all jurisdictions of problems of future interests
is suggested by the following list of very recent cases which the curious may
examine. Alabama, Deremus v. Deremus, 85 So. 3o7 (Feb., 192o) ; Georgia,
Cock v. Lipsey, 96 S. E. 628 (Aug., 1918) ; Kansas, Moherman v. Anthony,
t88 Pac. 434 (March, 1o2o) ; Maine, Real Estate, etc., Co. v. Dearborn, 1o9
Atl. 816 (April, 192o) ; Carver v. Wright, 1o9 Atl. 896 (May, 192o) ; Mary
land, Hempel v. Hall, 11o Atl. 21o (Feb., 192o); Mississippi, City Sovings
Bank, etc., v. Cortwright, 84 So. 136 (April, 192o) ; Missouri, Bram hall v.
Bramha.ll, 216 S. W. 766 (Dec., 1919) ; Hartnett v. Langan, 222 S. \V. 4o3
(June, 192o) ; Nebraska, Yates v. Yates, 178 N. W. 262 (June, 192o) ; New
York, In re Tift, 18o N. Y. S. 884 (Feb., 192o) ; Montague v. Curtis, 181 N.
Y. S. 7o9 (March, 192o) ; U. S. Trust Co. v. Perry, 183 N. Y. S. 426 (July,
192o) ; Ohio, In re Youtsey, 26o Fed. 423 (March, 191C) ; Oregon, Lee v.
Albro, 178 Pac. 784 (Feb., 1919) ; Pennsylvania, Berkley v. Berkley, 1o9 Atl.
686 (Feb., 192o) ; In re McConnell's Estate, 1o9 Atl. 846 (Feb., 192o) ; In re
Groninge/s Estate, 11o Atl. 465 (June, 192o) ; Rhode Island, Aldrich v.
Aldrich, 11o Atl. 626 (July, 192o); South Carolina, Home Bank v. Fox, 1o2
S. E. 643 (March, 192o) ; Texas, Crist v. Morgan, 219 S. W. 276 (March,
192o) ; Virginia, Turner v. Monteiro, 1o3 S. E. 572 (June, 192o); Prince v.
Barham, 1o3 S. E. 626 (June, 192o).
This brief study justifies the claim that the common law rules as to
future interests are quite inconsistent with the legislative policy of England
and the United States. Where the old rules have not been changed litigants
are constantly objecting. In the states that have changed most appears com
parative quiet. The lesson, if lesson there be, is that statutes should give free
dom to intent in creating futures estates, and preserving them when created,
but at the same time preserve freedom of alienation by cutting down, per
haps more than has yet been done, the period of perpetuities. With such
statutes the Rule in Shelley's Case, Chudleigh's Case, Purefoy v. Rogers,
and the rest, could be filed away as curios, and the law of real property and
modern needs and desires could dwell together in harmony.
E. C. G.

Acknowledgment.Under a Statute Regulat1ng Acknowledgments by
Marr1ed WomenAn Exam1nat1on Made Over Telephone 1s not Suff1
c1ent.In a question involving the validity of a mortgage deed, it appeared
that the acknowledgment of a Mrs. Bertholf had been taken by means of tele
phone. The court, in construing the Idaho statute regulating acknowledg
ments of married women, held that the clear intent of the statute was that
all acknowledgments should be taken in person before the magistrate, and
any attempted acknowledgment not taken in person, though correct in form
and without suspicion of fraud, was void, being beyond the power of the
officer. Myers v. Eby (Idaho, 192o), 193 Pac. 77.
That so common a method of taking acknowledgments should be found
void is perhaps startling, yet seems in entire accord with the great weight of
authority. Privy examinations of married women taken by telephone have
generally been held invalid. Roach v. Francisco, 138 Tenn. 357, 197 S. W.
1oo9, refuses to allow such a practice upon the general basis that their statute
had not been passed at the time of the inauguration of telephones, and
acknowledgments by such means could not have been within the purview of
the legislature? Wester v. Hurt,
Tenn.
, 13o S. W. 1o99, decides
against such a practice on the ground that judicial determination has decided
that such examinations must be personal. The chief authority for a differ
ent view is Banning v. Banning, 8o Cal. 271, 13 Am. St. Rep 156, where the
court states the unmistakable view that an acknowledgment made by tele
phone may be valid and the facts in it may not be impeached so long as
there are no errors in form and no evidence of fraud is produced. The
statute in that case and that in the principal case are similar, and there is
no more basis for regarding the necessity for personal appearance greater
in one case than in the other because of the mere wording of the statutes.
Although in Banning v. Banning the wife is attempting to avoid the deed
on the ground that acknowledgment was made over the telephone, the court
does not put its decision upon the basis of estoppel, but takes the stand that
such an acknowledgment is sufficient to satisfy the statute. While such a
practice might prove expeditious and is already much used, the dangers of
such a course appear in Sullivan v. First Nat. Bank, 37 Tex. Civ App. 228,
where the court says that the safeguards given in the requirement of acknowl
edgment lie in the fact that the officer knows the person making the oath
and stating the deed to be his own. If the officer is forced to receive the
acknowledgment by telephone, in very few cases he is in a position to
identify the speaker and must accept the statement of the speaker as to his
identity. Thus, when the question later arises as to whether the one whose
name was used in the deed made the aknowledgment, there is no means of
determining whether the identity of the one whose name was used in the
acknowledgment is the same as the one using the telephone to secure the
433
acknowledgment. The court in the principal case seems justified m con

struing the statute so as to secure better means of obtaining satisfactory
evidence that the one making the acknowledgment is the same person
described in the instrument.
Automobu.esContr1butory Negl1gence of the Guest 1n Fa1l1ng to
Warn the Dr1ver of Impend1ng Danger.The plaintiff was riding as a guest
in the defendant's automobile. The windshield of the car was frosted so that
neither was able to see that a crossing was blocked by a standing train until
too late to avoid collision. The plaintiff had warned the defendant of the
excessive speed at which he was driving, but testified that he did not know
whether or not the defendant had heard his protest. The plaintiff knew the
position of the railroad crossing, but did not remonstrate with the defendant
in regard to the manner in which he was approaching it. Held, that the
plaintiff was guilty of contributory negligence as a matter of law. Failure
on the part of the guest to see that the driver is keeping a proper lookout
or to protest the negligent manner in which the car is being driven will bar
a recovery from the driver in case of injury. Howe v. Corey (Wis., 192o),
179 N. W. 791.
The driver of an automobile owes a duty to his invited guest to exercise
ordinary care not to increase the danger ordinarily incident to driving; and
if he fails to exercise such duty he is liable for the injury proximately
resulting. Perkins v. Galloway, 198 Ala. 658, affirming 194 Ala. 265 ; Beard
v. Klusmeier, 158 Ky. 153. And it seems that the guest, likewise, owes a
duty to use reasonable care for his own safety. Penn. Ry. v. Henderson,
179 Fed. 577. But what does this duty require of the guest? The Indiana
court has held that it is not necessary for him to jump out of the car. Union
Traction Co. v. Love, 18o Ind. 442. Nor is he required to aik permission to
get out. Turney v. United Rys. Co. of St. Louis, 155 Mo. App. 513. And
the Rhode Island court does not even require the guest to protest when the
car is being driven at an excessive speed. Herman v. Rhode Island Co., 36
R. I. 447. However, the principal case would seem to place a burden upon
the guest not only of protesting an excessive rate of speed but also cf con
tinuing to protest until he is certain that his complaints have come to the
knowledge of the driver. Furthermore, he must remonstrate with the driver
in regard to the manner in which each new situation of danger is approached
in order not to assume the risk of possible resulting injury. It appears to
the writer that such a rule is quite contrary to the dictates of sound reason
and common experience. It, in effect, places a burden upon the guest of
electing between becoming a "back seat driver" or his own insurer against
all the perils encountered during the drive.
Carr1ersL1ab1l1ty for Lost BaggagePassenger from Adjacent For
e1gn Country.The plaintiff was on a journey from Canada to El Paso,
Texas, traveling on a coupon ticket to El Paso and return, with a stop-over
privilege of which she availed herself at San Antonio. She checked her
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MICHIGAN LAW REVIEW
trunk from there to El Paso, on which trip it was lost. When she purchased
her ticket at Timmins, Ontario, she was not told of any limitation of the
carrier's liability, and it does not appear that any notice appeared on the
ticket. The company claims that she was on an interstate journey, and that
since it had duly filed with the Interstate Commerce Commission and pub
lished a tariff limiting liability to $1oo unless passenger declared a higher
value and paid excess charges, it is liable only for that amount. The plaintiff
sued in a Texas court for the full value, which was $5oo. The Texas Court
of Appeals allowed full recovery. Held, that she is entitled only to $1oo.
Galveston, Harrisburg & San Antonio Rofavoy Co. v. Woodbury (U. S.
Supreme Court, Dec. 13, 192o).
For history of the development of the right of a carrier to limit liability,
see Law Review articles cited in 17 M1ch. L. Rev. 183. The Act to Regulate
Commerce applies to "passengers and property" expressly in three situations :
where the passenger is traveling from one state to another, where he is trav
eling from a point in the United States to another point in the United States
through a foreign country, and where he is traveling from a point in the
United States to an adjacent foreign country. Before the Carmack Amend
ment was passed it had been held that a common carrier could contract to
exempt himself from all liability except for losses caused by his own negli
gence. R. Co. v. Lockwood, 17 Wall. 357. And an agreement as to valuation
of property is valid, and carrier*s liability is restricted to that value, not by
virtue of a contract, but by estoppel. Hart v. Penn. Rd., 112 U. S. 331. It
was held in Matter of Released Rates, 13 I. C. C. R. 55o, that the Hepburn
Act with the Carmack Amendment made carriers liable for losses caused
by them, thus stipulating that the carrier could not stipulate to exempt him
self from liability for losses due to his own negligence; and that although
he could limit recovery to an honestly agreed valuation, even where the loss
was due to his own negligence, Hart v. Penn. Rd., supra, yet where the val
uation was only an arbitrary attempt to limit recovery to a specified amount,
regardless of value, "the law will not countenance so obvious a subterfuge."
The Act superseded all state legislation on the subject, leaving the shipper
only the rights he had had under existing Federal laws. Adams Express Co.
v. Croninger, 226 U. S. 491. Attempts to limit liability for losses due to neg
ligence are void (Boston & Maine Rd. v. Piper, 246 U. S. 439), but the utmost
freedom in limiting liability to an agreed valuation has been allowed, holding
the shipper to the agreed valuation, where both shipper and carrier know
that it bears no relation to the real value, even though loss is due to carrier's
negligence. Pierce Co. v. Wells, Fargo & Co., 236 U. S. 278. The Carmack
Amendment applies to baggage. Boston & Maine R. v. Hooker, 233 U. S.
97. The Cummins Amendment, 38 Stat. 1196, passed shortly after the Pierce
case, supra, was decided, applied to baggage, but as amended, 39 Stat. 441,
it does not, as is said in the principal case, Culbreth v. Martin, 1o3 S. E. 374.
Justice Brandeis, in his opinion in the principal case, follows Boston & Maine
R. v. Hooker, supra, which holds that although the passenger did not know
of the limitation of liability in the tariffs of the carrier filed with the Inter
435
state Commerce Commission, vet if such stipulation in the tariffs limits lia
bility for loss of baggage to $1oo if no other valuation is declared, and the
regulations are observed, and the passenger makes no declaration, he cannot
recover more than the $1oo. However, the dissenting opinion by Justice
Pitney, in which he says that the formula of rates filed does not constitute
a binding contract without the consent of the passenger or shipper, and that
there is no basis for estoppel, as in the Hart case, supra, seems better law.
Homer v. Railroad, 42 Utah, 15 ; St. Louis, I. M. & S. Ry. Co. v. Faulkner.
111 Ark. 43o. In Ferris v. Minneapolis & St. L. Ry. Co., 173 N. W. 178, in
a baggage case arising under a state statute similar to the Hepburn Act, it
was likewise held that there must be a valid contract fairly assented to by
the passenger, and that the contract must be a reasonable limitation, the
burden of proof being on the carrier to prove the contract. At any rate, to
apply the result of the decisions to one traveling from Canada is carrying a
bad thing too far. And to say that the Act meant to include travelers from
an adjacent foreign country, as well as those to such country", 't is submitted,
is judicial legislation. True, in International Paper Co. v. D. & H. Co., 33
I. C. C. 27o, as Justice Brandeis says, the Commission placed that construc
tion on the Act, but that controversy concerned a difference in rates between
Canada and the United States, and the Commission held that it had authority
over all carriers within the limits of the United States, without regard to
direction of shipments. Yet it held the rate established by the Canadian
Commission to be reasonable, and that comity demanded that it be not
changed. T. & P. Ry. Co. v. /. C. C, 162 U. S. 197, cited, says, in a dictum.
that the Act was meant to apply to the whole field of commerce except intra
state, but this was not necessary to the decision. But perhaps this decision,
like that in the Pierce case, supra, will agitate better legislation on this matter.
Const1tut1onal LawConcurrent Power under the E1ghteenth
Amendment.Habeas corpus proceedings against sheriff for detaining plain
tiff, who was arrested for violating the prohibition law of the state. Plaintiff
maintains that the Volstead Act superseded and abrogated all state laws on
the subject, and hence there was no state law in existence. Held, the power
of the state is equal to that of Congress in passing laws on this subject, so
the state law was not abrogated Jones v. Hicks (Georgia, 192o), 1o4 S.
E. 771.
For a discussion of the meaning of "concurrent power" under the Eigh
teenth Amendment, see 19 M1ch. L. Rev. 329. The opinion in the principal
case goes so far as to say that Congressional legislation cannot interfere
with the enactment of any future legislation by the states to enforce pro
hibition. This gives to Congress and the states equal power. This suggests
the analogy of concurrent jurisdiction exercised by states over the waters
of a river forming the boundary between them. See IVedding v. Meyler,
192 U. S. 573; Neilson v. Oregon, 212 U. S. 315; supra, p. 331. But Justice
White, in Rhode Island v. Palmer, 4o Sup. Ct. 486, said that the object of
the second section of the amendment was to adjust the matter to our dual
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MICHIGAN LAW REVIEW
system of government. To hold that Congress and the states have equal
power here would change the dual system. In Gibbons v. Ogden, 9 Wheat. 1,
at p. 211, Chief Justice Marshall said that state laws enacted by the states in
the exercise of their acknowledged sovereignty, not transcending their powers,
must give way to laws passed by Congress in pursuance of the Constitution
where contrary to them, for the Acts of Congress are supreme. See Wiscon
sin v. Duluth, 96 U. S. 379. In Keller v. U. S., 213 U. S. 138, which held that
an Act of Congress was invalid because it encroached upon the police power
of the state, Justice Brewer says, at p. 145 : "Doubtless it not infrequently
happens that the same act may be referable to the power of the state as well
as to that of Congress. If there be collision in such cases the superior
authority of Congress prevails." The principal case relies on Ex parte
Guerra, 11o Atl. 224. In that case the plaintiff, convicted under a state pro
hibition law, maintained that the war-time Prohibition Act of Congress
superseded all state legislation, but it was held that Congress acted under
valid war power and the state under a valid exercise of its police power, and
that the state statute does not yield to that of Congress unless its enforce
ment conflicts with the Acts of Congress. It was, in that case, held not to
conflict. It is submitted that any proper adjustment to our dual system of
government requires the state statute to yield in case of manifest repugnance
to the Act of Congress. See City of Shreveport v. Marx (La., 192o), 8&
So. 6o2.
Const1tut1onal LawDue ProcessExempt1on of Farmer from Food
Control under Lever Act.Under section four of the Lever Act it is made
unlawful for persons to perform any acts knowingly in an attempt to enhance
prices, or prevent production, to cripple transportation of necessaries, or to
attempt to acquire a monopoly of such necessaries, and it is also made pun
ishable by fine or imprisonment for persons to combine or conspire to accom
plish such ends. It is also provided that this section shall not apply to
farmers or associations of farmers, and upon the basis that this was a classi
fication without a reasonable basis it was held that this section of the Act
was invalid. U. S. v. Yount (D. C, W. D., Pa., 192o), 267 Fed. Rep. 861
It is unquestioned that the separate states in the exercise of their police
powers may subject the citizen to such restraint, to be enforced by reason
able regulations, as the safety of the general public may demand. To do
this, classification of the different subjects or persons to be regulated is
always permissible so long as the classification rests upon some difference
bearing a reasonable and just relation to the subject matter in respect to
which the classification is proposed. Connolly v. Union Sewer Pipe Co., 184
U. S. 54o. 46 L. Ed. 679. Yet this classification may not be arbitrary and
without reasonable basis. The court in the principal case, following the
precedent in the Connolly case, takes the stand that since the purpose of the
act is to prevent the hoarding, the monopolizing, the manipulation of neces
saries so as to raise prices and to allow profiteering, the exemption of the
437
farmer was omitting a class subject to the same temptations to combine for
these purposes as any other class, and thus there was no reasonable basis for
such a discrimination. Yet this stand is subject to the criticisms that appear
in Mr. Justice McKenna's dissenting opinion in that case, in which he takes
the view that the legislature has a wide range of discretion in the matter of
classification, and that there is no evidence in the case to show that there
was not a valid reason for legislating against combinations in the hands of
traders, persons, and corporations, and exempting producers. The American
Sugar Ref. Co. v. Louisiana, 179 U. S. 89, 21 Sup. Ct. 43, seems authority for
such a classification, despite the fact that it is distinguished in the Connolly
case, for, in the Sugar Refining Company case a certain tax is imposed upon
the manufacturers of sugar and not upon the growers of that article, while
in the principal case certain conduct is merely penalized as to certain classes
in which farmers and associations of farmers are not included. Other
grounds for regarding this a supportable classification appear in the fact
that the aim of the Lever Act as a whole was to aid the production of neces
sities. That the legislature saw fit to exempt farmers from the section pun
ishing monopolies, combinations in restraint of transportation, profiteering,
etc., indicates that the legislators evidently considered that the danger of
such evils was not so great in the case of this particular class of producers
and that they considered that the need for farm products was so great as. to
warrant encouraging farmers to the extent of allowing them a free hand in
the means that they might take to strengthen their position. Certainly there
are distinct differences in the situation of the farming class, and it seems
that the legislature might be left to determine the relation of these differ
ences to the acts declared invalid. In analogous cases similar exemptions
have not been regarded as arbitrary, though class distinctions are scarcely as
marked as in the principal case. In State v. McKay, 137 Tenn. 28o, 193 S.
W. 99, certain restrictions placed upon the seller of seeds were not applied
to the farmer vendor in certain kinds of sales, and this was held not a, vio
lation of the "equal protection" clause of the Constitution because such sales
were probably less open to the practice of deception. Whether the dangers
of combines and conspiracies on the part of farmers to raise prices are pro
portionately more in the principal case than danger of deception in the case
just mentioned seems doubtful. In St. John v. New York, 2o1 U. S. 518, 3o
Sup. Ct. 443, the non-producing vendor of milk was made liable by statute
to certain fines and penalties to which the producing vendor was not liable
on a showing that the milk was in the same condition as at the time when
it had left the herd. Whether there is a more valid distinction between such
classes and those established by the Lever act in the present case is open to
question.
Const1tut1onal LawPower op Leg1slature to Regulate Rental
Rates.In an action by a landlord to recover possession the tenant relied
upon the Ball Rent Law passed by Congress for the regulation of the busi
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MICHIGAN LAW REVIEW
ness of renting property in the District of Columbia. Held, that the Rent
Law was invalid, inasmuch as there is no devotion of rented property to a
"public use." Hirsh v. Block (C. C. A., D. C, 192o), 267 Fed. 614.
In the exercise of its police power a state may regulate rates charged in
businesses "affected with a public interest." Munn v. Illinois, 94 U. S. 113:
Budd v. New York, 143 U. S. 517; Brass v. North Dakota, 153 U. S. 391;
German Alliance Insurance Co. v. Lewis, 233 U. S. 389. Congress possesses
all the police power within the District of Columbia that a state legislature
has within its state. Washington Terminal Co. v. District of Columbia, 36
App. D. C. 186, 191 ; District of Columbia v. Brooke, 214 U. S. 147, 149. The
majority of the court in the principal case refused to differentiate between
a "public interest" and a "public use," and explained Munn v. Illinois, supra,
as based upon the fact that the owner of the grain elevator in that case had
devoted it to a public use in handling grain for the public generally. The
dissenting opinion in the principal case points out that the argument was
advanced in the Munn case and its successors that the owners of the property
in question were private individuals, doing a private business without any
privilege or monopoly granted to them by the state ; yet it was held that their
property was affected with a "public interest." Against these considerations
"the court opposed the ever existing police power in government and its
necessary exercise for the public good, and declared its entire accommoda
tion to the limitations of the Constitution." German Alliance Insurance Co.
v. Lewis, supra. In the case last mentioned the business of fire insurance
was held to be affected with a "public interest" and subject to regulation.
See 28 Harv. L. Rev. 84 for a discussion of this case. The idea that a
"public interest" is synonymous with a "public use" has been advocated in
every case from Munn v. Illinois to the German Alliance case, and has found
favor only in the dissenting opinions. In the exercise of the war-power
Congress regulated prices of necessaries, yet even the war-power can touch
only "business affected with a public interest," and clearly there was no devo
tion of property to a "public use." See Weed & Co. v. Lockwood, 266 Fed
785. Whether or not Congress is justified' in declaring the rent business
affected with a public interest under the conditions prevailing in the District
of Columbia, it seems clear that the statute cannot be disposed of by a con
clusion that there is no "public use" involved. For a more extended discus
sion as to the scope of the phrase "businesses affected with a public interest,"
see 19 M1ch. L. Rev. 74.
Const1tut1onal LawRepeal op Tax Exempt1on as Impa1rment of
Contract.Under a New York statute of 1853 (Laws of 1853, c. 462) the
relator's property was exempt from taxation above the value of $3o,ooo.
This statute was repealed by an act of 19o9 (Acts of 19o9, c. 2o1), and there
after the assessors of the City of Troy placed a value of one million dollars
upon the relator's property, upon which valuation city taxes were assessed.
In an action to set aside the taxes so assessed, the relator claims that the
repeal of the act of 1853 effected an impairment of his contract, embodied
439
in that act, contrary to the contract clause of the Federal Constitution (Art.
I, 1o). Held, assessment should be sustained. People ex rel. Troy Union
Ry. Co. v. Mealy et al. (192o), 41 Sup. Ct. Rep. 17.
The courts are not inclined to view claims for exemption from taxation
favorably. Tucker v. Ferguson, 89 U. S. 527. And will not find a contract
in a statute granting such exemption unless there is quid pro quo. Ry. Co.
v. Supervisors, 93 U. S. 596. To the contrary, where it appears that the
party exempted furnished no consideration, the exemption is simply a prom
ise of a gratuity, spontaneously made, and subject to repeal at the pleasure
of the legislature. Christ Church v. Phila. County, 65 U. S 3oo. Mere action
in reliance upon the statute will not be held good consideration. Ry. Co. v.
Powers, 191 U. S. 379. But even where a consideration has been given, an
express reservation of power to repeal, in the act itself or in the state con
stitution, will give the legislature the right to withdraw the privilege at will.
Greenwood v. Freight Co., 1o5 U. S. 13; Colder v. Michigan, 218 U. S. 591.
A grant of privileges contained in a corporate charter stands upon a some
what different footing. In such a case the precedent of Dartmouth College
v. Woodward, 4 Wheat. 518, precludes the court from holding that a grant
of exemption is nudum pactum. Owensboro v. Telephone Co., 23o U. S. 58.
The decision in the principal case rests upon a solid foundation in that the
relator furnished no consideration for the exemption, and furthermore, that
the right of repeal was reserved in Art. VIII, 1 of the Constitution of
New York.
Cr1m1nal LawWa1ver of Confrontat1on.During the progress of
the defendant's trial on the charge of rape the state offered in evidence,
without objection on the part of the accused or his counsel, the testimony
of the prosecutrix as taken before the grand jury. Counsel for the state
and for the defendant were present in the grand jury room when the evi
dence was given, and both agreed to the use of the testimony at the trial.
Held, the defendant had waived his constitutional right to be confronted by
the witness, notwithstanding the fact that the stipulation had been made by
an attorney appointed by the court to represent the accused. Denson v.
State (Ga., 192o), 1o4 S. E. 78o.
By the federal constitution and the constitutions of most of the states,
in a criminal proceeding the accused has a right to be confronted with the
witnesses against him. I W1gmorf, Ev., Sec. 1396. The authorities are prac
tically uniform on the proposition that this right of confrontation is a per
sonal privilege which the accused can waive. Smith v. State, 14s Wis. 612.
13o N. W. 461 ; State v. Williford, 111 Mo. App. 668, 86 S. W. 57o; 2 B1shop,
New Cr1m1nal Procedure [2d Ed.], Sec. 12o5; 16 C. J. 84o. The waiver
may be either by express consent, as where the accused agrees to the reading
of depositions taken elsewhere; by failure to assert the right in time; or by
conduct inconsistent with a purpose to insist on it. State v. Mitchell. 119 N.
C. 874, 25 S. E. 873 ; Chamberlayne. Ev., Sec. 462. According to the great
weight of authority art express agreement or stipulation made by counsel for
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MICHIGAN LAW REVIEW
an accused, in reference to a waiver of the right of confrontation, has the

same effect as if made by the defendant himself. Rosenbaum v. State, 33
Ala. 354. And as Cooley, J., pointed out in People v. Murray, 52 Mich. 288,
17 N. W. 843, it makes no difference whether the stipulation is made by
counsel employed by the accused or by counsel appointed by the court for
the accused. Texas alone seems to hold that the waiver, to be binding, must
be made by the accused himself. Allen v. State, 16 Tex. App. 237. The
latter tribunal seemingly forgets that the attorney is the accused's personal
representative at the trial and acts for him; it also overlooks the fact that
even though the accused may have had no voice in the selection of the
appointed counsel, he could have objected in due time to the stipulation and
waiver. In the instant case he offered no objection until after the verdict
was rendered against him. Logically, the accused here can hardly complain,
considering the further fact that his counsel had cross-examined the witness
whose testimony was read at the trial. "The main and essential purpose of
confrontation is to secure the opportunity of cross-examination." 2 W1cmore, Ev., Sec. 1395. This is the primary right the constitutional provision
mainly guarantees, and once this opportunity and right are had and enjoyed
by the accused he cannot claim that he was denied due process of law.
DeedsDel1veryGrantor Reta1n1ng Possess1on.The defendants
claimed land under an instrument, signed, sealed and acknowledged by the
grantor. The latter, during his life, retained possession of the land and of
the instrument; he gave the latter to no one at any time, and he made no
declarations regarding it, its existence being unknown until after his death,
when it was found among his papers. In an action by the heirs of the
grantor for partition, it was held that there had been no valid delivery of the
instrument. Mumpower v. Castle (Sup. Ct. App., Va., 192o), 1o4 S. E. 7o6.
The defendants claimed under an instrument, signed, sealed and acknowl
edged by the grantor (testator), who in his will spoke of land which he
had "deeded'' to the defendant, and said that the deed would be found with
the will. Apparently, the deed was signed and acknowledged some time
after the will was made, for it bore a later date than the will. After the
testator's death it was found, signed and acknowledged, along with the will.
In a suit by two grandchildren of the testator for partition, it was held that
there had been a valid delivery of the deed. Payne v. Payne (Sup. Ct. App.,
Va., 1o2o), 1o4 S. E. 712.
Delivery of a deed, as the court points out, is essentially a matter of
intention on the part of the grantor to consummate the transaction as far as
he is concerned ; i. e., to have the instrument operate presently as a convey
ance. The cases above, recognizing that manual transfer of possession is
unnecessary, nevertheless hold that even where an instrument is signed,
sealed, and acknowledged there must be some other circumstance or word
or act of the grantor showing an intention on his part to have the instru
ment operate presently as a conveyance in order to constitute a valid delivery.
The weight of authority supports this doctrine that delivery is an affirmative

act, as essential to the validity of the deed as the signing or sealing, and
being a distinct requisite for validity, must be proved by the one claiming
under the instrument. Fain v. Smith, 14 Ore. 82, 58 Am. Rep. 281 ; Fisher
v. Hall, 41 N, Y. 416; Boyd v. Slayback, 63 Cal. 493. In the second case, the
language used by the testator in his will regarding the deed, and his subse
quent action in acknowledging the deed and placing it with his will were
considered as clearly indicating his intention to make it then operative as
his deed. For a very similar case see Toms v. Owen, 52 Fed. 417. See also
17 M1ch. L. Rev. 344 and references given there. There are misleading state
ments in certain cases cited in Payne v. Payne, supra, to the effect that thel
signing, sealing and acknowledging of a voluntary conveyance raise a prima
facie presumption of its delivery. The language, however, was unnecessary
to the decision of the cases cited and is impossible to reconcile with elementary
principles of the law as to delivery.
Equ1tyUnclean Hands.Plaintiff was a corporation giving chiro
practic lessons by mail, and had built up its business by false, misleading,
and fraudulent advertising. Defendant, a former president of the plaintiff
company, started a rival institution and took with him a list of plaintiff's
present and prospective pupils, and sent letters to them derogatory to plain
tiff, and calculated to draw its pupils away. The defendant built up his busi
ness by the same kind of fraudulent advertising. Plaintiff asked for an
injunction to restrain defendant from sending out any more such letters.
Held, the plaintiff's unclean hands preclude equity from giving the relief
asked. American University v. Wood, 128 N. E. 33o (Ill., 192o).
The court in the principal case lays down the broad proposition that
equity will not aid a litigant in the promotion of a fraud on the public,
although his wrong did not affect the private rights of the defendant, and
had no necessary connection with defendant's wrong-doing, citing Primeau
v. Granfield, 193 Fed. 911, in which, there being a suit to declare a trust and
for an accounting between plaintiff and defendant, who were engaged in a
fraudulent joint enterprise for tr1e sale of worthless mining stock to the '
public, the court dismissed the bill, holding the plaintiff had not come into
court with clean hands. The Trade Mark or Trade Name cases, 4 A. L. R.
32, note, in which plaintiff asks for an injunction to restrain an infringe
ment, are the most numerous and important type in which the courts have
applied the doctrine of unclean hands, as in Worden v. California Fig Syrup
Co., 187 U. S. 516, where an injunction restraining an infringement on the
trade name, "Syrup of Figs," was refused, the court holding that the name
was a fraud' on the public, as the product contained no fig syrup, but was
merely an extract of senna, and dismissed the bill because of the plaintiff's
unclean hands. In Memphis Keeley Institute v. Leslie E. Keeley Co., 155
Fed. 964, plaintiff asked an injunction to restrain defendants from adminis
tering their remedies, and to cancel the contract. The court found that the
so-called "Gold Cure" contained no gold, although the sale of the medicine
had been built up by representations to that effect, and held that as this
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MICHIGAN LAW REVIEW
advertising amounted to a fraud on the public, equity would not interfere

where plaintiff's hands were unclean. In both this case and the principal
one the rule that the misrepresentation must be directly connected with the
subject matter of the suit {Shaver v. Heller, 1o8 Fed. 821, 834), was consid
ered inapplicable. In Coca Cola Co. v. Koke Co. (U. S S. Ct., October term,
192o), 41 Sup. Ct. 113, the court sustained an injunction against an infringe
ment of the name "Coca Cola," in spite of the objection that the name was a
deceit on the public. In reversing the conclusion in 255 Fed. 894, and modify
ing and affirming the holding in 235 Fed. 4o8, the court decided that there was
no fraudulent advertising in the case, and that although the name was derived
from a derivative of cocaine, and now, as a matter of fact, the drink con
tained no cocaine, yet the public asked for the beverage itself, and not for
a drink with the expectation of getting cocaine in it. From a consideration
of these cases it would seem that the Illinois court in its broad application
of the rule was justified in principle, although none of the cases considered
has stated or applied it so liberally.
Ev1denceTest1mony of the Deceasfd G1ven After the T1me of the
Acc1dent 1s Adm1ss1ble as Part of Res Gestae.Statements made by the
deceased after being shot that the defendant had attacked and robbed him,
though made some time after the accident, held admissible as part of the
res gestae, since there had been no opportunity to deliberate on the effect
of the words. Solice v. State (Ariz., 192o), 193 Pac. 19.
The doctrine of res gestae, as a basis for the admission of evidence, may
be summarized, in a limited sense, as the practice of admitting the entire
collection of primary facts constituting the immediate and necessary field
of judicial inquiry in the particular case. This may involve the admission
of declarations and statements that might otherwise be classed as hearsay
evidence, even though these statements may not have occurred at the time
or at the place of the principal occurrence. A further inquiry into the exact
nature of the doctrine of res gestae reveals the fact that it has been applied
as a loose name covering several more definite rules fcr admitting evidence,
the more important of which are spontaneous exclamations or statements,
statements admissible under the verbal act doctrine, statements showing men
tal condition, and statements admissible as part of the issue under the plead
ings, and others. This confusion of several distinct bases for the admission
of evidence has in many cases led to confusion of the elements necessary
for the admission of evidence of the type involved in the principal case,
and more technically known as spontaneous exclamations. Spontaneous
exclamations, as an exception to the hearsay rule, are admissible when,
because of the element of the time of making such exclamations and the
circumstances of making, it is evident that the words have been emitted
spontaneously and without previous reflection on their effect. Untrustworthiness being the basis of the hearsay rule, it is the spontaneity of this partic
ular form of res gestae that insures their truth and forms the basis of the
exception. Hence the elements necessary for the presence of this guaranty
443
seem to be a startling occasion, a statement made before there is time for

fabrication, the content of which relates to the circumstances of the occur
rence. A number of courts in treating matters coming distinctly under the
head of spontaneous utterances of this kind have confused the requirements
with those of other forms of res gestae, and part1cularly with those of verbal
acts. The elements of a verbal act are either that the words must be a
part of the issue under the substantive law involved or must be such as to
give a certain legal significance to the principal occurrence, and such state
ments have generally been held only to be admissible if those of the actor
and if precisely contemporaneous in time with the principal act. Courts,
then, in confusing these two classes of evidence have called statements made
after the time of the accident and not in exclamatory form "narrative," and
exclude such statements on the basis that they are not a part of, contempo
raneous with, or having a particular bearing on the principal act, without
considering that the real necessity is that such statements must merely be
made under such circumstances as to guarantee their truthfulness. In Car
roll v. Knickerbocker Ice Co., 218 N. Y. 935, the court considers that the
mere fact that the statement was in narrative form sufficient reason for
excluding it. Other such cases are: Vicksburg M. R. Co. v. O'Brien, 119'
U. S. 99; Dompier v. Lewis, 131 Mich. 144; Clark v. Electrical Supply Co.,
72 Mo. App. 5o6; Ruschenberg v. So. Elec. R. Co., 161 Mo. 7o, 61 S. W. 626.
In Butler v. M. Ry. Co., 143 N. Y. 417, 38 N. E. 454, the court does not seem
to consider spontaneous utterance as a basis for the admission of evidence,
but stated that statements were admissible only when unfolding the char
acter or quality of the principal act. Williams v. So. Pac. Co., 133 Cal. 55o,
goes so far as to intimate that narration in any form, even though given
during the time of the principal occurrences in question, may be excluded.
It is evident that if so strict a rule were consistently followed most spon
taneous utterances would be entirely excluded. This case also follows
another element of the verbal act doctrine in its intimation that only prin
cipal actors' statements are so admissible, while the spontaneous exclama
tions of chance witnesses have generally been admitted if the other neces
sary guaranties of trustworthiness are present. Other cases following the
principal case in admitting statements of this kind when the necessary ele
ments of trustworthiness are present are : Louis v ///. Cen. R. Co., 14o La. I ;
Freemen v. Ins. Co., 195 S. W. 545 ; Daly v. Pryor, 197 Mo. App. 583, 198 S.
W. 91. For a full collection of cases of this type, see 42 L. R. A. (N. S.) 918.
InsuranceDeath Wh1le 1n M1l1tary Serv1ce.A life insurance pol
icy provided, "If, within five years from the date of this policy, the insured
shall engage in military or naval service in time of war, the liability of the
company, in event of the death of the insured while so engaged * * * shall
be limited to the return of the regular premium * * *" After the issuance
of the policy the insured was inducted' into military service under the pro
visions of the Selective Service Law, and died of pneumonia in a hospital
at Camp Taylor, Kentucky. In an action by his administrator to recover the
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MICHIGAN LAW REVIEW
face value of the policy, it was held, the company was not liable. Bradsl1aw
v. Farmers' and Bankers' Life Ins. Co. (Kans., 192o), 193 Pac. 332.
A life insurance policy contained this provision : "This policy is incontestible after one year from date of issue * * *: Provided, however, that it
is especially understood and agreed that, in case of the death of the insured
while engaged in any military or naval service in time of war, the beneficiary"
shall recover a sum equal to the total premiums paid, etc. The insured
enlisted in the naval service of the United States during the Great War, and
died of pneumonia while at his home on furlough shortly after the Armis
tice. In an action by his administrator, held, the company was liable for the
full amount of the policy. Long v. St. Joseph Life Ins. Co. (Mo. App., 192o),
225 S. W. 1o6.
The problem of these cases is discussed and the cases reviewed in 18
M1ch. L. Rev. 686. See also Ibid. 8o1. Since those notes several cases, in
addition to the principal cases, have been decided. Mattox v. New England
Mut. Life Ins. Co. (Ga. App., 192o), 1o3 S. E. 18o, where without discussion
of the point the court held the company not liable for the full amount ;
Slaughter v. Protective League Life Ins. Co. (Mo. App., 192o), 223 S. W.
819, where recovery was limited to the premiums paid; Sandstcdt v. Amer
ican Cent. Life Ins. Co. (Wash., 192o). 186 Pac. 1o69, where also the recovery
was limited, though the discussion was on another point. Apparently, the
conflicting views of the Courts of Appeals in Missouri will be settled by the
Supreme Court of that state, for the Long case, supra, is certified to the
higher court.
InsuranceInvoluntary Manslaughter of Insured by Benef1c1ary
Does not Bar Recovery.The beneficiary of a life insurance policy, through
his gross negligence, caused the death of the insured. In an action by the
beneficiary against the insurer, it was held that even though the plaintiff was
guilty of involuntary manslaughter under the Penal Code, that fact would
not defeat his action. Throop v Western Indemnity Co. (Cal., 192o), 193
Pac. 263.
It is contrary to public policy to permit a person who wilfully kills
another to enforce through the courts the contract for the payment of insur
ance upon the life of the person killed. New York Mut. Life Ins. Co. v.
Armstrong, 117 U. S. 591; Anderson v. Life Ins. Co., 152 N. C. 1. See
24 Harv. L. Rev. 227. The rule forbidding such recovery is analogous to
that prevailing in fire insurance, where the fire is set by the insured. 4
Cooley on Insurance, 3154. The reason given for the existence of the pub
lic policy is that to allow a recovery would furnish the party interested the
strongest temptation to bring about the event insured against and would
encourage crime. The killing in the present case was accidental, and as far
as the wording of the contract is concerned a recovery should be allowed.
There would, however, seem to be considerable room for argument whether
the same rule of public policy which operates in the case of a wilful killing
should not apply in the present case. Allowing the plaintiff to recover in
445
this case places a premium upon gross negligence. The court made no men
tion of public policy in the principal case, nor did the Illinois court in the
case of Shreiner v. High Court of I. C. O. of F., 35 Ill. App. 576. In thd
latter case the court said that a contract of insurance impliedly assumes the
risk of all carelessness by every person, whether a possible beneficiary under
the contract or not ; therefore, a death which is unintentional, though caused
by some neglect or unlawful act of the beneficiary, is within the contract,
and ought not to defeat the policy. See L. R. A. 1917B, 121o.
JudgesProv1s1on for Expenses not Increase of Compensat1on.
Where by statute the Missouri legislature allowed probate judges a cer
tain sum for the payment of necessary expenses while engaged in holding
court, it was held that such allowance did not constitute additional "compen
sation" within the constitutional provision that the compensation of a public
officer should not be increased or diminished' during his term of office.
Macon County v. Williams (Mo., 192o), 224 S. W. 835.
It seems to have been almost universally held that any allowance for
expenses incident to the discharge of the duties of office, in addition to the
salary provided by law, is not an increase of salary or compensation, a per
quisite, nor an emolument of office, forbidden by the United States Consti
tution and the constitutions of practically all of the states. McCoy v. HandHn, 35 S. D. 487, 153 N. W. 361; Milwaukee County v. Halscy, 14o Wis. 82,
136 N. W. 139. The test of validity is : Was the purpose of the legislature
to increase the salary or was its purpose merely to save such salary, so that
the officer would, in fact, receive the whole thereof for the performance cf
his official duties? The constitutional prohibition is aimed at the former
alone. It was framed in the public interest that the judiciary may be inde
pendent of the other departments, on the ground that, as Hamilton put it,
"A power over a man's subsistence amounts to a power over his will" (Fed
eral1st, No. 79). True, the power to allow or withhold sums for expenses
may give the legislature some hold on the judiciary, yet courts have con
sistently confined the prohibition to increases or decreases of the compen
sation for services rendered, allowing the appropriation of special sums for
traveling and other incidental expenses of office. Such appropriations do
not add to the salary; they merely insure the official's full enjoyment of it.
Kirkwood v. Soto, 87 Cal. 304, 25 Pac. 488; Smith v. Jackson, 241 Fed. 77o
(approved, 246 U. S. 388, 62 L. Ed. 788) ; State v. Sheldon, 78 Neb. 552, 11 1
N. W. 372. Yet, in a recent case the United' States Supreme Court declared
that the prohibition was applicable both to direct and indirect changes in
salaries, and, reversing the lower court decision, held that the income tax
on the salaries of federal judges violated this constitutional provision. Evans
v. Gore (U. S. S. C, 192o), 64 L. Ed. , 4o Sup. Ct. 55o. It seems absurd
to say that while the allowance of expenses to judges does not violate
the provision, the taxation of the salaries of judges in common with those
of other citizens does violate it. This tax is not such a diminution of
judges' salaries as to bring the judiciary within reach of the legislative
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MICHIGAN LAW REVIEW
department, nor would it cause any suspicion of influence that might tend
to shape their decisions, since the tax is on all "incomes from whatever
source derived." The judge's claim for salary is unimpaired; the amount
of income remains the same; the deduction comes later when the govern
ment comes to collect taxes from all citizens, whatever be their position or
place. See 18 M1ch. L. Rev. 697. The purpose of a constitutional prov1sion
must guide courts in its application, and it is submitted that if the independ
ence of the judiciary is not tampered with by allowances for expenses it
certainly is not violated by a tax laid on all citizens alike. See dissenting
opinion in Evans v. Gore, supra.
Landlord and TenantMode of Ut1l1zat1on of Prem1sesConstruc
t1on of Covenant not to Use for Immoral Pract1ces.A lease contained
the covenant, "that the lessee will not keep or allow any hquor or beverages
of any intoxicating nature or tendency, kept or tolerated on said premises,
nor any gambling, or other immoral practices." The tenant used the prem
ises as a book store and sold certain books of an immoral character. In an
action by the landlord in forcible entry and unlawful detainer, the trial court
found (1) that there had been a default in the payment of rent, and (2)
that the premises had been used for immoral practices within the scope of
the covenant in the lease. A statute empowered the tenant to reinstate his
rights under the lease by payment of the rent at any time before possession
was taken by the landlord under legal proceedings. Admitting the default
in payment of rent, it thus became necessary for the court to pass upon the
second finding in order to determine whether or not the tenant could exer
cise his statutory power. Held, in view of the lease describing the premises
as a book store, a prohibition on the kind of books to be sold was not within
the contemplation of the parties at the time of the execution of the lease.
A construction of the words, "or other immoral practices," in view of their
following directly after the specification of gambling or keeping of intoxi
cating liquors, must be confined to practices generally understood to be sub
versive to common decency, such as allowing the premises to be used as a
bawdy house or for lewd dancing. Paust v. Georgian (Minn., 192o), 179
N. W. 735Generally, the tenant is not restricted in the use of the leased premises
except by statute or express provision in the lease. Taylor v. Finnegan, 189
Mass. 568, 76 N. E. 2o3; Heise v. Penn. Ry Co., 62 Penn. 67. Where the
tenant is prohibited from using the premises for certain specified trades or
any other noisome or offensive trade, such words as those italicized are con
strued as relating only to trades ejusdem generis with those which have
already been set out in particular in the covenant. Witherell v. Bird, 2 Ad'ol.
& E. 161; Jones v. Thome, 1 Barn. & C. 715; 1 T1ffany, Land. & Ten,
123 d. There seems to be no reason why the same principle should not be
adhered to in the principal case; for it is self-evident that gambling is not
in the same category as the sale of certain immoral books which are among
those kept in a general stock in trade.
447
L1belPubl1cat1on to Agent.Boltz and wife ordered a stove of the

defendant company, giving their joint note therefor. Young, an agent of
the stove company, was given the original order with the words "no good"
written across the face thereof, and directed not to deliver the stove unless
he could collect $57 which was not called for by the contract of sale. As
Boltz was working away from home, he asked a neighbor, Faulk, to assist
in receiving, unloading and placing the stove. Young showed the said order
to Faulk and to Mrs. Boltz, in explanation of his demand for the payment.
Held, it was unnecessary to decide whether the words were libelous per sc,
for there was no publication. Wrought Iron Range Co. v. Bolts (Miss., 192o),
86 South. 354.
The court reasons that showing the alleged libelous words to the wife
was no publication, for she was jointly interested in the contract, and show
ing them to Faulk was no publication, for he was the agent of Boltz and
simply stood in his place. No authority was cited for either proposition.
The first, however, seems clear upon principle, but the second is more doubt
ful. Authority precisely in point is scarce. The statement that communica
tion to any person other than the plaintiff is sufficient publication, Salmond
on Torts, 412; Jozsa v. Moroney, 125 La. 813, is too broad in the light of
many recent cases, some of which are cited, infra. But this is the rule, and
contrary cases are exceptions. Duke of Brunswick v. Harmer, 14 Q. B. 185.
is contrary to the principal case. The publication there consisted of he sale
of a newspaper to the agent of the plaintiff, sent purposely to make the pur
chase. Wright v. Great Northern R. R. Co., 186 S. W. 1o85 (Mo., 1916), is
also contra, but is without value here because placed by the court, unneces
sarily, it seems, upon a special state statute. In Brown v. Elm City Lumber
Co., 167 N. C. 9, and Alabama & Vicksburg R. R. Co. v. Brooks, 69 Miss.
168, the sending of libelous letters to the plaintiffs' attorneys in response to
claims presented by the said attorneys for their respective clients, was held
sufficient publication. Dickinson v. Hathaway, 122 La. 644, also an attorney
case, seems contra to the two cases last cited, and to lend some support to
the principal case, but therein the matter of publication is badly confused
with that of privilege. Such a doctrine certainly finds no support in Jozsa
v. Moroney, supra. On principle, it is hard to see why the plaintiff was not
as much damnified by the exposure of the order to this particular neighbor
whom he had asked to help receive the stove as to any other person. The
temporary agency was neither prevention nor cure for the injury to his
reputation. The court in the instant case passes without notice another very
interesting question, to-wit, whether the handing of the libelous paper by
the company to their agent, Young, was not publication. On the authority
of Bacon v. Mich. Central R. R. Co., 55 Mich. 224; Ward v. Smith, 6 Bing.
749; Gambrill v. Schooley, 93 Md. 48; Pullman v. Hill [1891], 1 Q. B. 524,
and the numerous cases following the Pullman case, it is submitted that this
was publication. While the tendency is undoubtedly away from the Pullman
case, as far as publication to a stenographer in the course of business is con
cerned, it is doubted if the court which gave the decision in Owen v. Ogilvic
448
MICHIGAN LAW REVIEW
Pub. Co., 32 App. Div. 465, and its many followers, would include a deliveryman of merchandise in their "all one act" theory. See further 17 M1ch. LRev. 187, 346, and 19 M1ch. L. Rev. 1o6, for the phase of the problem last
discussed above.
Mun1c1pal Corporat1onsR1ght to Condemn Land for Waterworks
1n Another State.The states of Washington and Oregon enacted recipro
cal statutes providing that a municipal corporation of any adjoining state
might acquire title to land or water rights within the state by purchase or
condemnation for waterworks purposes. A city in Washington planned to
issue bonds to construct a waterworks system which required the city to
condemn lands in Oregon by virtue of the Oregon statute. A taxpayer
sought to enjoin the issuance of the bonds on the ground that the city could
not exercise the power of eminent domain in another state and so could not
lawfully proceed with the project. Held (four justices dissenting), that in
view of the reciprocal statutes, the city may exercise the power of eminent
domain in the other state, and that the injunction should be refused. Langdon v. City of Walla Walla (Wash., 192o), 193 Pac. 1.
The right of eminent domain, by constitutional provisions which prevail
generally in the United States, is restricted to taking property for public use.
Lew1s, Em1nent Doma1n, - 1. The public use for which property may be
taken is a public use within the state from which the power is derived. Gen
erally speaking, one state cannot take or authorize the taking of property
situated within its limits for the use of another state. N1chols, Em1nent
Doma1n, 29. If the state authorizing the use of the power benefits thereby,
it is no objection that another state also benefits. Gilmer v. Lime Point, 18
Cal. 229. The relative amount of direct benefit accruing inside and outside
of the state is not material. Thus, property was taken to be used to prevent
the water supply of two cities in the home state and one in a neighboring
state from being polluted. Columbus Water Works Co. v. Long, 121 Ala.
245 ; and to increase the power of the condemner's electric plant located
within the state 4,75o horse-power, and of its plant located outside of the
state 13,5oo horse-power, Washington Power Co. v Waters, 19 Idaho .595:
and to construct a pipe-line serving a few people in West Virginia and many
people in Pennsylvania, Carnegie Gas Co. v. Swiger, 72 W. Va. 557. It has
been held that unless some direct benefit from the proposed use is to accrue
to the state in which it is located, the state's power of eminent domain can
not be used to condemn property. In Grover Irrigation Co. v. Lovella Ditch
Co., 21 Wyo. 2o4, the land sought to be condemned was to be used only to
facilitate the irrigation of land in another state; the use of the power was
refused. But indirect benefit to the state has also been recognized as suf
ficient to justify the exercise of the power. Thus, the United States was
permitted the state's right of eminent domain in Maryland for the purpose
of furnishing a water supply to the District of Columbia, the court basing
its decision partly on the ground that, as the United States benefited, Mary
land as a part of the United States benefited also ReddaH v. Bryan, 14 Md.
449
444. And in In re Thomas, 39 N. Y. 171, the right of eminent domain was

exerted against land in New York to maintain a canal in New Jersey because
of the benefit to the people of New York, though the canal was situated
entirely in New Jersey ; this benefit, a mere possibility, was that the people
of New York could use the canal, since it terminated on the Hudson river.
On the other hand, in the Grover Irrigation Co. case, supra, although it was
pointed out that certain cities in Wyoming would benefit from the resulting
fertility of land in the neighborhood, the court considered this an indirect
benefit and refused to allow the exercise of the eminent domain power for
such purpose. Thus, it appears that the requirement of benefit may be
applied from a strict or a liberal viewpoint. From a strict viewpoint, the
dissenting judges in the principal case are correct and the majority are not
in accord with the weight of authority, for the reciprocal statute is at best
only an indirect benefit to Oregon. But a treatment of the problem liberally,
from the standpoint of reasonableness and desirability, would be better.
From such a standpoint the opinion of the majority is correct. In cases of
irrigation and water-rights a view has been taken broader than that of the
minority opinion. As long as Oregon, through its legislature, is willing to
permit a foreign municipality to use its power of eminent domain, and the
use of its land so acquired is a public one in the broad, liberal sense of the
word, no citizen of Washington should be heard to object.
Nu1sanceA1d1ng Bett1ng on Races Ind1ctable.D was indicted for
the offense of maintaining a common and public nuisance. The evidence
showed that he maintained a room in which he carried on a commission bet
ting business. People would call him over the telephone and place bets with
him on horse races; he received their bets and transmitted them to his father
in New York, who would let him know if they were all right. They received
money by check from D's father in New York or transmitted money to his
New York office in case they lost the bet. There was no evidence of any
disturbance or noise in or about the office of D, and his place of business
was not known to the public generally. He was not indicted under the
statute relating to betting on horse racing, but under the common law for a
public nuisance. Held, he was guilty of maintaining a public nuisance by
aiding betting in violation of law. Enright v. Commonwealth (Ky., 192o), 225
S. W. 24o.
The decision is undoubtedly correct and follows the general rule. At
common law any form of gambling was regarded as a nuisance because of
its tendency to corrupt morals, disturb the community, and ruin fortunes, and
it has been held that a pool room maintained to facilitate betting on horse
races is a common law nuisance. State v. Vaughn, 81 Ark. 117; State v.
Ayers, 49 Ore. 61. The decision in the principal case is based upon earlier
Kentucky decisions. In Ehrlick v. Commonwealth, 125 Ky. 742, which was
a prosecution for maintaining a common nuisance (a pool room), the court
said : "A nuisance per se is any act or commission or use of property or thing
which is of itself hurtful to the health, tranquility, or morals, or outrages the
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MICHIGAN LAW REVIEW
decency of the community. It is not permissible or excusable under any

circumstances." In James v. State, 4 Okla. Crim. Rep. 587, it is said that a
house or place kept for the purpose of enabling persons to place bets or
wagers upon horse races is a common gambling house, and is, therefore, a
nuisance per sc. See also Jones v. State (Okla.), 132 Pac. 319. In the Ehrlick case, supra, the court also held that where the thing is per se a nuisance,
such as a pool room or gambling house, it is no defense that there was no
noise or disturbance, nor that the community was not disturbed by its pres
ence. This is supported by authority, King v. People, 83 N. Y. 587, where it
was held that it was not an essential element of the offense of keeping a
disorderly or gaming house that the public should be disturbed by the noise.
Nu1sanceAttract1ve Nu1sanceNe1ther Coffer Dam nor Pond Is.
The Supreme Court of Iowa recently handed down two decisions on attrac
tive nuisances. In the one case, a railroad maintained a coffer dam in sup
port of one of the piers of its bridge. A beam extended entirely around the
dam, and the plaintiff's intestate (eight years old) was drowned by the
water within the dam by losing his balance in an attempt to walk the beam.
In the other, the plaintiff's intestate (five years old) was drowned in a pond
that was allowed by the railroad to remain undrained on its right of way.
In both cases the plaintiff's right to recover was denied. Massingham v.
Illinois Central Ry. Co. (Iowa, 192o), 17o N. W. 832; Blough v. Chicago
Great Western R. Co. (Iowa, 192o), 179 N. W. 84o.
The trend of the decisions points to a refusal by the courts to extend
the rule of attractive nuisance advanced in the turntable cases. 2 Cooley,
Torts [Ed. 3], 1272, n. 43. For cases representative of this tendency, see
Ryan v. Towan, 128 Mich. 463 (water wheel) ; Sullivan v. Boston & Albany
R. Co., 156 Mass. 378 (charged wire on the roof of a shed) ; Rogers v. Lees,
14o Pa. St. 475 (hoisting apparatus) ; Loftus v. Dehail, 133 Cal. 214 (open
cellar); O'Connor v. Brucker, 117 Ga. 475 (open door of a vacant house) ;
Arnold v. St. Louis, 152 Mo. 173 (pond covered with ice). But see Comer
v. City of Winston-Salem (N. C. 1919), 1oo S. E. 619, 18 M1ch. L. Rev. 34o,
where the city was held liable for failure to maintain a proper railing on its
bridge. See also Ramsay v. Tuthill Building Material Co. (Ill., 192o), 129
N. E. 127, which arose over the death of a child smothered by sand in a
bin in which deceased was playing.
Nu1sanceFuneral Home 1n a Res1dent1al Sect1on.The defendants
bought a house in an exclusive residential section and commenced to use it
for the purpose of a funeral home in connection with their undertaking
establishment, which was situated in another part of the city. They con
structed a driveway entirely around the house for the purpose of parking
funeral cars and carriages. The nature of the business required that bodies
should be allowed to remain there from twenty-four to thirty-six hours.
Services were held and funeral processions started from the home. The
effect of the establishment was to impair materially the value of the sur
451
rounding property. In a suit by residents of the neighborhood, held, that

although a funeral home is not a nuisance per se, under the circumstances
of this case it must be held to be such; and an injunction will issue to
restrain the use of the premises for that purpose. Meagher v. Kessler
(Minn., 192o), 179 N. W. 733The court places the funeral home in the same category as undertaking
establishments, which uniformly have been held not to be nuisances per se.
They become nuisances, however, when they are conducted in a residential
district, and where their effect is to impair the enjoyment of the neighboring
premises and to decrease the value of the property in the neighborhood gen
erally. There are but few cases on the subject, most of which are collected
in a note to Goodrich v. Starrett, 1o8 Wash. 437, 184 Pac. 22o, in 18 M1ch.
L. Rev. 246. See also 19 M1ch. L. Rev. h1, commenting on Beiscl v. Crosby
(Neb., 192o), 178 N. W. 272.
Res Ipsa Loqu1turRelat1on to Burden of Proof.In an action for
negligent burning of timber on the plaintiff's land there was some evidence
that the fire originated from sparks emitted from one of the defendant's
engines. The court recognized that the case was a proper one for the appli
cation of the doctrine of res ispa loquitur, and in its instruction to the jury
imposed upon the defendant the burden of satisfying the jury by a prepon
derance of the evidence that it was not negligent. Held, instruction errone
ous. The doctrine of res ipsa loquitur does not change the burden of proof,
but merely makes a prima facie case in favor of the plaintiff and places on
the defendant the burden of going forward with the evidence. Page v.
Camp Mfg. Co. (N. C, 192o), 1o4 S. E. 667.
The court in the instant case correctly states what is now the prevailing
view as to the relation between the doctrine of res ipsa loquitur and the
burden of proof. The principle is applied where the circumstances of the
occurrence are such as to warrant the inference of negligence and makes it
incumbent upon the defendant to adduce evidence in rebuttal if he desires
to do so. Sweeney v. Erving, 228 U. S. 233; Kay v. Metropolitan St. Ry. Co.,
163 N. Y. 447; Everett v. Foley, 132 Ill. App. 438. South Carolina supports
the view that the burden of proof is thereby shifted. Sullivan v. Charleston
& W. C. R. Co., 85 S. C. 532. Instructions similar to those given in the
instant case were upheld in Atlantic Coast Line R. Co. v. Jones, 132 Ga. 189.
For many other cases approving similar instructions see note in L. R. A.
1916A 93o. Even in many cases which recognize 1he theoretical soundness
of the rule that the burden of proof never shifts confusion has been intro
duced into the law in deciding whether or not given instructions are in con
formity to the rule. This has been due to a misapprehension of the correct
meaning of the terms "burden of proof" and "preponderance of the evidence"
or to a loose employment of these terms. Furnish v. Mo. P. R. Co., 1o2 Mo.
438; Baum v. N. Y. Q. C. R. Co., 124 App. Div. 12; Abrams v. Seattle, 6o
Wash. 356; Carroll v. Boston Elev. R. Co., 2oo Mass. 527. Some of these
courts have suggested that a loose or unscientific use of these terms will not
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MICHIGAN LAW REVIEW
confuse the jury, and that therefore instructions to the effect that ''the bur
den of proof has shifted to the defendant" or "the defendant must prove by
a preponderance of the evidence that he was not negligent" are not preju
dicially erroneous. But it would seem that if these terms have a well-defined
legal meaning, their correct use should be insisted upon, even at the risk of
reversal on what seem purely technical grounds. Such is the view of the
United States Supreme Court in Sweeney v. Erving, supra, which is approved
in the instant case. As to whether the presumption of negligence requires
or merely permits a verdict for the plaintiff if the defendant produces no
evidence in rebuttal, the decisions are not in harmony. See Sweeney v. Erv
ing, supra, and Briglio v. Holt, 85 Wash. 155. See W1gmore, par. 25o9. for
rules governing the application of the doctrine of res ipsa loquitur.
Slander"Crook" not Slanderous Per Se.It was alleged that defend
ant said of plaintiff, "Madame is a crook," and that the words imputed com
mission of crime involving moral turpitude or infamous punishment. Held.
the innuendo is not supported by reason or authority; that "crook" is applied
to persons who are not guilty of crime, and as no special damage is alleged
the cause is dismissed on demurrer, yillemin v. Brown, 184 N. Y. S. 57o.
In the English courts and the majority of American courts it is the duty
of the court to determine whether the language used in the publication can
fairly or reasonably be construed to have the meaning imputed, and if the
court determines it is capable of such construction it is then left to the jury
to decide in what sense the language was used. Hankinson v. Bilby, 16 M.
& W. 441 ; Shubley v. Ashton, 13o la. 195; Downs v. Hawley, 112 Mass. 237;
Longer v. Courier News, 179 N. W. 9o9. On the other hand, in some juris
dictions, including that of the principal case, when the words are free from
ambiguity or evidence tending to change their natural meaning, whether
they are slanderous or libellous per se or not is passed upon by the court as
a matter of law. Cooper v. Greeley, 1 Denio (N. Y.) 347; More v. Benett,
48 N. Y. 472 ; Pugh v. McCarty, 44 Ga. 383 ; Gottbehuet v. Hubachek, 36 Wis.
515; Gabc v. McGinnis, 68 Ind. 538. Determined either as a matter of fact
or of law, it would seem that "crook" means a person liable to imprisonment
for crime. The court in the principal case apparently treats of "crook" and
"crooked" as synonymous. This may have been a source of error. While
neither term is credited with a precise meaning, "crooked" commonly denotes
failure to abide by the prevailmg morality, whereas "crook" is a term carry
ing greater opprobrium, and ordinarily suggests a person who gains a livel1
hood by committing felonies. The class of slanders per se is a rigid one,
but not without reason, and, as the principal case holds, whenever a plaintiff
has suffered actual damage he is always at liberty to show it and recover
for it.
Street Ra1lroadsContr1butory Negl1gence 1n Fa1l1ng to Stop and
Look a Quest1on of Fact.Plaintiff, while crossing defendant's street rail
way track, was struck by a street car and severely injured. Plaintiffs auto
453
mobile was moving at a rate of two miles an hour and the street car wis
approaching at a speed of thirty miles an hour. Defendant moved for a
peremptory instruction in its favor, contending that plaintiff's failure to
stop and look before crossing constituted contributory negligence, as a mat
ter of law, which barred his right to recover. The court refused so to
instruct, and left the question of contributory negligence to the jury. Held,
that failure to stop and look does not constitute contributory negligence as
a matter of law, but is a question of fact for the jury. Washington Ry. &
Electric Co. v. Stuart (D. C, 192o) 267 Fed. 632.
The court, in this case, clearly draws the distinction between cases
involving steam railway crossings and those involving street railway cross
ings. The general rule in the case of steam railway crossings seems to be
that failure to stop, look and listen before crossing constitutes contributory
negligence as a matter of law. Koch v. Southern California R. R., 148 Cal.
677, and cases there cited; Haven v. Erie R. R., 41 N. Y. 296; Northern
Pacific Ry. Co. v. Freeman, 174 U. S. 379. In the principal case the court
points out that no one has a right to assume that a steam train or interurban
car, operated on the company's right of way, will be under control with a
view of stopping promptly if the safety of a pedestrian or other person cross
ing the track requires it. It also points out that street railway tracks are
necessarily to be crossed with great frequency, by reason of their occupancy
of public streets, and that the facility with which such cars are stopped and
the frequency of their stopping make the danger measurably less than that
incurred in crossing an ordinary railroad crossing. The weight of authority
seems to support the distinctions here drawn. Detroit United Ry. v. Nichols,
165 Fed. 289; City & Suburban Ry. Co. v. Cooper, 32 App. D. C. 55o;
McQuisten v. Detroit Street Ry., 148 Mich. 67.
Tr1alsMot1on for D1rected Verd1ctEffect of Mot1on by Both
S1des.P sued D as assignee of X. D set up as a special defense that the
assignment was void because it was champertous. At the close of the testimany D moved for a directed verdict on the ground the evidence conclusively
showed champerty, and P. also moved for a directed verdict, with the proviso
that if the court ruled against them he be allowed to go to the jury upon the
facts. The court refused to accept the conditional motion and ordered P
to elect between going to the jury and moving for the directed verdict.
Under protest P moved for a directed verdict, and then the court found as
a fact that the assignment was champertous and rendered judgment for D.
Held, error, for where counsel makes it plain that he wishes to go to the
jury on a question of fact, a motion for a directed verdict by both sides does
not present the question of fact irrevocably to the court. Sampliner v. Motion
Picture Patents Co. (U. S., 192o), 41 Sup. Ct. Rep. 79.
While it is true, as the trial court held, that a request by both sides for
directed verdict, by the great weight of authority, waives the right to trial
of the facts by the jury and submits them to the court, yet it does not follow
that the implication of waiver may not be rebutted by an express or implied
454
MICHIGAN LAW REVIEW
denial of an intention to waive. Hatch v. Calhoun County, 17o Mich. 322;

St. Louis Railway v. Mulkey, 1oo Ark. 71, Ann. Cas. 1913C 1338, and note.
The trial court seems to have fallen into the same error which has deterred
minority courts from following the general rule on the ground that its adop
tion would provide a trap for the unwary and a penalty of a denial of trial
by jury upon a motion for directed verdict. Wolf v. Chicago Sign Co., 233
Ill. 5o1, 13 Ann. Cas. 369, and note; Virginia-Tennessee Hardware Co. v.
Hodges, 126 Tenn. 37o. One court at least has reached the minority rule as
a matter of logic and analysis of the effect of a motion for directed verdict,
saying that "one who claims that the evidence is all his way cannot reason
ably be held to waive the right to claim that, at least, some of it is his way."
Fitssimmons v. Richardson, 86 Vt. 229. That the minority courts have no
reason to refuse to follow the majority rule because of its danger is not only
shown conclusively by the decision of the court in the principal case but
also by an unbroken line of decisions in courts following the majority rule.
Empire State Cattle Co. v. Atchison Ry., 21o U. S. 1, also note in 6 Ann.
Cas. 547; Pemiston v. Coleman, 126 N. Y. S. 736. The power of counsel to
request a jury trial even after both parties have moved for directed verdicts
apparently should conclusively answer the objections to the general rule
given voice to in the Wolf and Hodges cases, supra.
Vendor and PurchaserAgreement to Convey Free from Encum
brances as Appl1ed to V1s1ble Easements.Suit was brought by an execu
tor to enforce specifically an agreement for the sale of land free from all
encumbrances. W defended on the ground that the plaintiff could not give
him a marketable title, since the land was subject to an easement of way
for electric wires carried upon huge steel towers. Held, no defense, for
vendee is presumed to have contracted to accept the land subject to encum
brances of an open and notorious nature. McCarty v. Wilson (Cal., 192o),
193 Pac. 578.
The decision of the principal case rested largely upon another recent
California decision, Ferguson v. Edgar (1919), 178 Cal 17, where it was held
that a vendee had no right to rescind a contract to purchase land free from
encumbrances, because of the existence of an irrigation ditch and canal upon
the land. This principal has been generally applied in cases involving a public
highway, Patterson v. Arthurs, 9 Watts (Pa.) 152, and especially in suits
upon covenants against encumbrances by the grantee of a warranty deed.
Maup1n on Marketable T1tle, 3o4; Kellog v. Ingersoll, 2 Mass. 97, contra;
and in one case at least it was held not an encumbrance within the meaning
of the covenant, even though the purchaser did not know of the existence
of the highway. Sandum v. Johnson, 122 Minn. 368, but this case is extreme.
As to ordinary private easements, the authorities are irreconcilably in con
flict. The theory of one group of these cases seems to be that the mstru
ment being the grantor's, and having failed to put in an exception, he must
abide by his covenant as made, and knowledge by the grantee cannot have
the effect of qualifying a general covenant, since an article may be warranted
455
to be sound when both parties know it to be unsound {Hubbard v. Norton,

1o Conn. 423; Beach v. MUler, 51 Ill. 2o6); but the general rule is that a
general warranty does not cover defects which the buyer must have observed.
W1luston on Sales, 2o7. In Haldane v. Sweet, 55 Mich. 196, Cooley, J.,
laid down the rule that the existence of an alley which is visible is no excuse
for failing to perform a contract to purchase land, in accordance with the
reasoning of the principal case. Kuts v. McCune, 22 Wis. 628; Smith v.
Hughes, 5o Wis. 62o, accord. It is submitted that although the rule of the
principal case seems to be more calculated to do justice where urged as a
merely technical defense to a contract lawfully entered into, the opposite
rule is more logical, and not so dangerous to apply. See 3o L. R. A. N. S.
833 and 48 L. R. A. N. S. for a compilation of the authorities.
W1llsTrust not Created by D1rect1on to D1spose of Property "Ac
cord1ng to Best Judgment."A will directed the executor and another named
person "to divide and distribute the residue according to their best judg
ment." In a bill for a construction of the will, held, there was no trust,
express or implied, but an unqualified power of appointment which the court
could not control. Harvey v. Griggs (Del., 192o), 11l Atl. 437.
There are two possibilities in such a case. First, the language may be
interpreted as an absolute power of disposition, uncontrollable by the court.
Second, it may be regarded as creating a trust which is void for indefiniteness, and there will be a resulting trust for the heirs or next of kin. In the
following cases no trust was implied: "to be at the disposal of his wife in
and by her last will and testament to whom she shall think fit and proper
to give the same," Robinson v. Dungate, 2 Vera. 181 ; "to be disposed of unto
such person or persons * * * as they in their discretion shall think proper
and expedience," Gibbs v. Rumsey, 2 V. & B. 294; to executors to dispose of
"as they in their discretion shall think fit," Paice v. Archbishop of Canter
bury, 14 Ves. Jr. 364; to be disposed of "as the trustee hereof for the time
being in the uncontrolled absolute discretion or pleasure of such trustee
shall see fit," Norman v. Prince, 4o. R. I. 4o2. In the following cases a result
ing trust for the heirs or next of kin was imposed : "Upon trust to * * *
dispose of the ultimate residue to such objects of benevolence and liberalty
as the bishop * * * in his own discretion shall most approve of," Morice v.
Bishop of Durham, 9 Ves. Jr. 656; "in trust to expend solely for benevolent
purposes in their discretion," Willets v. Willets, 1o3 N. Y. 65o: "in trust to
be distributed and disposed of as he pleases," Haskell v. Staples, 116 Me.
1o3; "to such charitable, educational and scientific purposes as in your judg
ment will most substantially benefit mankind," Tilden v. Green, 1o3 N. Y.
29. For many other cases see Ames, Cases on Trusts l^nd Ed.], p. 93, note;
37 L. R. A. (N. S.) 4oo. Having determined in the instant case that the
executor took an arbitrary power of disposition, the case is simple of solu
tion. If he is willing to carry out the obvious intention of the testator, the
court cannot prevent him. Norman v.'Prince. supra. But if it is clear that
the executor is not to take beneficially (courts have seized upon the words
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MICHIGAN LAW REVIEW
"in trust" or "to trustees" as controlling, though in Norman v. Prince, supra,

it is denied that they are significant), and that the trust is not charitable, the
fact that there is no beneficiary who can enforce the trust has caused most
courts to allow it to fail. Morice v. Bishop of Durham, supra. Where, how
ever, the trustee is willing to act in such cases, there would seem to be no
reason for refusing to permit him to effectuate the intention of the testator.
Rc Gibbon [1917], I I. R. 448. For arguments on both sides of this question
see 5 Harv. L. Rev. 389 and 15 Harv. L. Rev. 5o9.
Workmen's Compensat1onAcc1dent Ar1s1ng Out of Employment
Sport1ve Act of Co-employee.Where an employee while devoting his time
to his work was struck in the eye by an apple thrown by a fellow servant
engaged in horseplay, it was held that the injury was one "arising out of and
in the course of his employment," within the Workmen's Compensation Law.
Leonbruno v. Champlain Silk Mills (N. Y., 192o), 128 N. E. 711.
The general rule under the English Workmen's Compensation Act is
that an employee who is injured while "larking" or while in :he performance
of some sportive act cannot recover, for the reason that the injuries are not
regarded as arising out of the employment. Fitzgerald v. Clarke & Son
[19o8], 2 K. B. 796; Wilson v. Laing [19o9], Court of Session, 123o; WrigUy
v. Nasmyth, Wilson & Co. [1913], W. C. & Ins. Rep. 145. To the same
effect are most of the American decisions. Thompson v. Employers' Liability
Assur. Corp., Ltd., 2 Mass. W. C. C. 145; Matter of Stilhvagon v. Callan
Bros., 224 N. Y. 714; In re Zelavzmi, 1 Ohio Ind. Comm. Bull. (No. 7) 87,
(No. 48427, 1914), 8 N. C. C. A. 286; Payne v. Industrial Comn. (Ill., 192o),
129 N. E. 122. The reason for refusing the award is that the claimant has,
by himself engaging in the horseplay, suspended his work and temporarily
stepped outside his employment. The New Jersey court has gone even
farther by declaring that the employer is not liable for an injury due to
horseplay "whether the injured party instigated the occurrence or took
no part in it; for, while an accident happening in such circumstances may
arise in the course of, it cannot be said to arise out of, the employment."
Hulley v. Moosbrugger, 88 N. J. L. 161. To the same effect, see also the
two Michigan cases of In re Boelema and Ratkowski v. Am. Car. & Foundry
Co., 5 N. C. C. A. 7o8. The principal case, in drawing the line between
those cases in which the claimant did and those in which he did not take
part in the sportive acts which resulted in the injury, has the support of a
number of decisions, both American and English. Knopp v. Am. Car &
Foundry Co., 186 III. App. 6o5 ; Pekin Cooperage Co. v. Industrial Board, 277
Ill. 53; In re Mack, 1 Ohio Ind. Comm. Bull. (No. 7) 12o (No. 37914, 1914) ;
Shaw v. Macfarlane, 52 Sc. L. R. 236. The extension of the operation of
the Workmen's Compensation Acts to the latter class of cases may, perhaps,
be justified upon the ground that these statutes are remedial and should be
broadly interpreted. Moore v. Lehigh Valley Ry. Co., 154 N. Y. S. 62o. But,
even so, the reasoning in the principal'case to the effect that the injury arises
out of the business because skylarking among the employees is "something
457
reasonably to be expected" proves rather too much. Followed to its logical

conclusion, this argument would destroy the very distinction sought to be
established, and would lead to allowing the claim even in a case where the
injured employee was himself taking part in the sportive acts which resulted
in his injury. For a note on the general subject of accidents "arising out
of" employment, see 16 M1ch. L. Rev. 179.
Workmen's Compensat1on ActCompensat1on for Injury Aggravat
1ng a Latent D1sease.P, an apparently able-bodied young man, in starting
a gas engine caught his foot, which was lacerated, and fell in a faint. He
lost the use of his legs. Medical testimony showed he was suffering from
multiple sclerosis, hardening of the brain. Also that this disease was hered
itary or caused by acute infection; that any shock or excitement would aggra
vate the disease and bring on the present condition of disability. In an action
for compensation, held, the injury precipitated the present condition of P
and is fully responsible therefor. P is entitled to compensation for total
incapacity for life. Blackburn v. Cogeyville Vitrified Brick and Tile Qo.
(Kan., 192o), 193 Pac. 351.
The Compensation Acts, generally speaking, impose a liability on the
employer for any accidental injuries to his employees arising out of the
employment. Honnold, Workmen's Compensat1on, 4. The question arises
as to what constitutes an accidental or personal injury within the meaning
of the acts. Often the incapacity from which the employee suffers or which
causes his death is the immediate result of a disease. Then the problem is
to determine whether the disease is to be considered as the proximate result
of an accident so as to make the Compensation Act applicable. In cases like
the principal case, where the disease from which the employee was suffering
or died was aggravated or accelerated by the accident, compensation is
awarded on the theory that the accident was the proximate cause of the
disability or death. Thus where an employee accidentally fell, and testimony
showed that the injury aroused latent tuberculosis, accelerated the disease
and caused death earlier than otherwise, compensation was given for death.
Retmier v. Cruse (Ind.), 119 N. E. 32; Van Keuren v. D1vight Divine &
Sons, 165 N. Y. Supp. 1o49; see cases cited in 15 N. C. C. A. 632 and 17 N.
C. C. A. 864. The accident aggravating the disease may be undue excite
ment or strain in the course of employment. Thus, where a night watchman
died after the excitement of a fire in the plant, it was found he had a weak
heart. The court, in reversing the decision of the Accident Board denying
compensation, said : "The fact that the man's condition predisposed him to
such an accident or stroke must be, under the authorities, held to be imma
terial. While the exertion and excitement which accelerated the heart action
were not the sole proximate cause of the death, they were certainly concur
ring causes. Schroetke v. Jackson-Church Co., 193 Mich. 616. So also,
where a miner who was pushing a coal car up a grade suddenly complained
of his side and died shortly, the evidence showing that his heart was diseased
and that the strain caused a rupture of the heart resulting in death, the court
458
MICHIGAN LAW REVIEW
awarded compensation on the ground that the personal injury, the rupture
of the heart. was by accident, as it hastened to a fatal end an ailment.
Indian Creek Coal Co. v. Calvert (Ind.), 119 N. E. 519. Death or incapacity
resulting from a non-occupational disease alone is not compensable. A
workman dying of apoplexy was denied compensation where there was neither
unusual happening nor accident. Guthrie v. Detroit Ship Co., 2oo Mich. 355.
It appears that there must actually be an accident in order for an injury
aggravating a disease to be compensable. The compensation recoverable is
usually held to be for the total disability, not merely for that degree of the
disability which was caused by the accident as distinguished from that which
was caused by the disease. Indianapolis Abattoir Co. v. Coleman (Ind.),
117 N. E. 5o2. "The previous condition of health of the employee is of no
consequence in determining the amount of relief to be afforded * * * [But]
it is only where there is a direct causal connection between the exertion of
the employment and the injury that an award of compensation can be made."
In re Madden, 222 Mass. 487, the court pointing out that where the disease
was the cause of the injury no award can be made, but where the employ
ment was a proximate contributing cause to the injury there ought to be an
award made. The decision in the principal case appears to be in accord
with the authorities and the correct view. The theory of the Compensation
Acts is that every personal loss to an employee, as such, is an element of
the cost of production and should be charged to the industry. It is to pro
tect the employee at the expense of the industry. Being social in its aim
and conception, and making no distinction in the condition of the health of
employees, the Act should compensate for the disability, even though the
injury is aggravated by or aggravates a congenital weakness or a preexisting
disease.
Workmen's Compensat1on ActInjury Ar1s1ng Out of and 1n Course
of Employment.Leaving the works where she was employed during the
dinner hour, a machinist went to a canteen provided by her employers in
another part of the premises. Hurrying down a flight of stairs leading from
the canteen to the street which connected the canteen and the works, she
slipped and broke her ankle. Held (two of the five judges dissenting), the
injury arose out of and in the course of the employment, within the meaning
of the Workmen's Compensation Act. Armstrong, Whitworth & Co. v.
Redford [192o], A. C. 757.
A workman's employment is not confined to the actual work upon which
he is engaged, but extends to those actions which by the terms of his employ
ment he is entitled to take or where by such terms he is taking his meals
on the employer's premises. Brice v. Lloyd [19o9], 2 K. B. 8o4; Friebel v.
Chicago City Ry. Co., 28o Ill. 76, 117 N. E. 467; Scott v. Payne Bros., 85 N.
J. L. 446, 89 Atl. 927. The period of employment is not necessarily broken
by mere intervals of leisure such as those taken for meals. In re Sundine,
218 Mass. 1, 1o5 N. E. 433; Honno1.d, Workmen's Compensat1on, Sec. 111.
As the court said in the instant case, "the taking of meals is a matter ancil
459
lary and incidental to the employment." Up to this point there is little con
flict of opinion. Where the courts divide is as to what acts of the dining
employee are "within the contemplation of both parties to the contract as
necessarily incidental to it." Plainly, where the worker is in a forbidden
place or doing an obviously dangerous act during the lunch hour there can
be no recovery for any injuries he may receive. Brice v. Lloyd, supra;
Manor v. Pennington, 18o App. Div. 13o, 167 N. Y. Supp. 424; IVeis Paper
Mill Co. v. Industrial Commission (Ill, 192o), 127 N. E. 732. Similarly, if
during the leisure hour a workman absented himself from the place of
employment for his own purposes there would be such an interruption of
the employment as to defeat a recovery of compensation for an injury during
such absence. Davidson v. M'Robb [1918], A. C. 3o4. On the one hand,
where the employee eats his lunch in the factory according to an established
custom and he is there injured, the mishap is said to be incidental to his
employment and a recovery is allowed. Racine Rubber Co. v. Industrial
Commission, 165 Wis. 6oo, 162 N. W. 664. On the other hand, where the
accident occurs in a public street the courts are inclined to refuse a recoverv,
unless it can be shown that the employee was in the street on the business
of, or as a duty that he owed to, his employer. Bell v. Armstrong, 88 L. J.
K. B. 844. See in this connection 16 M1ch. L. Rev. 179. Between these two
extremes come injuries, such as that in the principal case, which occur on
the employer's premises. In In rc Sundim, supra, such an accident was held
to have arisen out of and in the course of the employment. although the stairs
on which the employee slipped and was hurt were not' under the employer's
control. The court said it was sufficient that they were on his premises. In
Highlcy v. Lancashire & Y. Ry. Co., 85 L. J. K. B. 1513, a worker recovered
although the accident occurred on train tracks which workers used as a
"short cut" to the mess room, against the railway company's orders. In the
instant case the arbitrator found that the stairs were part of the premises
where the injured employee was employed, and where she would have no
right to be except by virtue of her employment. In this fact the majority of
the court found the element of causal relationship between the employment
and the accident necessary to allow a recovery under the Act. The rule
announced in the principal case seems to be in harmony with the trend of
modern authority on the point involved See Boyd. Workmen's Compensa
t1on, Sec. 481 ; L. R. A. 191? A. 32o; 6 A. L. R. 1151 . See also 19 M1ch. L.
Rev. 232.
BOOK REVIEWS
Patent Law, by John Barker Waite, Professor of Law in the University of
Michigan Law School. Princeton University Press, 192o.
This is a good book on what was once described by Justice Story as
"the metaphysics of the law."
When it is realized that an invention is not "an art, machine, or com
position of matter"these may be material embodiments of itbut that
the invention itself is an intangible thing, an idea, a mental concept, which
existed in the mind of the inventor before it was put in tangible form, and
may co-exist in tangible forms not physically resembling each other, it is
easy to see what opportunity this subject offers for ingenious as well as
amusing speculation, as, for example, whether a jail is an art, a machine, or
a composition of matter,1 or whether the gift to the inventor's fiancee of a
set of corsts is a public use.1
The successful practitioner must be able to analyze his client's invention
and find out what there is about it that is newwhat, in fact, the invention is.
He must patiently pursue, overtake, and be able to recognize the intangible
and elusive thing that has been created and which never existed before, and
he must be able to describe it so that a judge, who as often as not cannot
drive a nail, can understand it.
In no other branch of law is the human element, both of court and coun
sel, so important and so uncertain, and this accounts, more than anything
else, for the apparently irreconcilable conflict of decisions.
There are very few legal principles that are at all disputed. The whole
patent system is based on one or two lines in the Constitution and some short
and simple statutory provisions. The trouble is that the courts are dealing
with imponderables and some men perceive them better than others.
Decided cases are of little use as a guide. No two cases are alike; con
sidering the subject matter, they cannot be. It is an absurdity to try to find
rules for the decision of the instant case from cases which have gone before.
Precedents may indicate factors which have influenced courts, in certain
instances, to find invention or the lack of it; but it is quite irrational to try
to formulate rules of thumb for determining this question. Books which
make this pretense are misleading. It is the conspicuous merit of Mr. Waite's
book that he attempts no such impossibility. His discussion of the meaning
and characteristics of invention in Chapter II is excellent, and when this
matter is understood the troublesome part of patent cases is at least per
ceived, because invention, anticipation, and infringement are all the same
question. The answer depends on the ability to discover, discern, and
describe a mental concept. Finding that mental concept to be new, there is
invention ; finding it in the earlier knowledge, there is anticipation ; finding
1 Jacobs v. Baker, 7 Wall. 295 .
2 Egbert v. Lippmann, 104 U. S. 333.
BOOK REVlliWS
461
it in the patentee's claims, not in the earlier knowledge and in a later device,
there is infringement.
There is not the same opportunity for close reasoning and accurate state
ment in the other parts of the book as there is in the treatment of invention,
but always the subject is discussed with sense and discrimination and with
a clarity which, in law books, and particularly in books on this subject, is as
refreshing as it is uncommon.
This book is readable. There is a conspicuous absence of the trade pat
terthe argot of the so-called patent lawyer, which seems to be the usual
thing in most discussions of patent questions, as if the subject itself were
not sufficiently esoteric, but needs, in addition, a jargon of its own to make
it the more obscure. One does not have to learn a new language to read
this book. It is clearly expressed in good English. It has none of the pro
fessional cant of the practitioner whose door is adorned with the sign, "Pat
ents, Trademarks, Copyrights, and Corporations." And it is free from the
curious and irritating mannerisms which deface some books on patent law
such as Walker's affection for the word "relevant," which is a good enough
word, but a book which uses it to the exclusion of others equally good is
apt to be tiresome.
Mr. Waite's book contains one glaring mistake. The preface states :
"Although the book is as complete in its field and as thorough
as I could make it, it is written primarily for others than patent prac
titioners. They, presumably, being already trained specialists in this
subject, have no longer any need for discussion and exposition of
principles."
There never was a greater error than the implication which this para
graph contains. The presumption that patent practitioners are trained spe
cialists who have no need for a discussion and exposition of principles is
amiable but mistaken. The average patent practitioner is usually a person
who has grafted a limited specialty on an imperfect education, who cultivates
a constricted outlook, an uncouth speech and a mysterious manner. No
one needs an introduction to principles more seriously than he, and a study
of this book would do him a world of good.
Chicago, III.
Edward S. Rogers.
Contracts 1n' Eng1neer1ng, by James Irwin Tucker, B.S., LL.B.. Director
of the School of Civil Engineering, University of Oklahoma. 2d Ed.
New York, 192o. McGraw-Hill Book Co. Pp. xii, 331
This single volume is not in any sense a complete presentation of law
on any subject, of course, but is an effort to give to engineers "substantial
information upon many legal matters." It is in form a text-book. Each
general topic is followed by pages of questions upon its subject matter. The
work covers not only general principles of contracts but also "Agency, Tort
and Independent Contractor," "Real Property," "Contracts of Association,"
"Contracts of Sale and Transportation," and "Negotiable Paper." An
"Appendix" carries miscellaneous juristic information. As it is a condensed
462
MICHIGAN LAW REVIEW
presentation of general rules and principles, rather than an elucidation of

complex problems, the author very properly omits, as a rule, references to
authority.
The reviewer confesses to a prejudice against works of this general type
which purport to give some knowledge of law. Experience in practice has
not led him to believe that a little knowledge of law may not be dangerous,
even though its possessor be warned, as the author does warn his readers,
that the services of legal counsel cannot completely be dispensed with.
Whenever the author discusses abstract principles of law, rather than con
crete applications, it is well done. Nevertheless, the reviewer has a feeling
that he understood it all only because he was already conversant with the
matter. He suspects that four out of five laymen, after studying the section
on "consideration," would fail to realize that while a detriment suffered in
reciprocation of a promise is consideration for it. detriment suffered in mere
reliance upon the promise is not. This is no criticism of the author's pre
sentation, but merely comment upon the inherent defects of any such book.
But, after all, the man who draws his own contracts, like "the jolly
testator who writes his own will," makes business for lawyers more because
he does not anticipate the possibilities for dispute, or, having anticipated
them, does not express himself definitely in regard to them, than because he
does not understand the principles of law. To quote from the book, "Attor
neys say that probably seventy-five per cent of the litigation in court at the
present moment is due to the fact that some one, either a lawyer or a lay
man, has at some stage of the proceedings failed to state with exactness and
clarity just what was intended in a writing or in an oral declaration." To
correct this source of litigation and trouble is essentially, one may deduce,
the aim of the book. To this end, one of the best chapters in it, from the
point of view of a lawyer, is the one entitled "Engineering Contract Writing."
The author begins by scotching the common idea that a contract must be
framed in technical legal language to be effective. Undoubtedly, much uncer
tainty in laymen's contracts is due to the use of misunderstood technical
terms. Incidentally, the same thing might be said, with considerable accu
racy, of lawyers' contracts. Having thus urged the use of plain and definite
English, the chapter then suggests a very comprehensive list of possible
sources of dispute in engineering contractse. g., the insufficiency of speci
fications, time elements, methods of measurement and valuation, extras, risks,
and the like.
It is in the suggestion of such non-legal points as these that the book
would seem to be most valuable. Nevertheless, its suggestions as to legal
rules are not without real worth. That one is not legally safe in believing
another's statements about a third person seems mere r -1on sense. But
it is worth the time of reading to have it brought home t.. \ cannot make
C pay for work which A did on orders from B, merely b'* se B himself
stated that he was the agent of C.
.'li*
This type of information, also, is clearly and inclusively" presented, and
the book as a whole is the best one of its type that the reviewer knows of.
John Barker Wa1te.
MICHIGAN
LAW
Vol. XIX
REVIEW
MARCH, 192 1
No. 5
RESPECTIVE RIGHTS OF PREFERRED AND COMMON

STOCKHOLDERS IN SURPLUS PROFITS
HE movement in the field of cooperative commercial undertakings has been, school-book-like, a movement from the sim
ple to the complex, from the common-law situation of persons asso
ciating together to conduct a business for profit to the modern statu
tory association and the corporation possessing an enormous capital
derived from a host of individuals whose respective interests are
represented by various classes of transferable shares.
Of course, the real incentive of the individual member of such a
group is to share in the increased profits secured by mobilization
of capital, with the resultant efficiency of the large scale enterprise
over such small undertakings as his limited means could finance.
Usually, therefore, he seeks to protect his interest in the profits of
the concern by express contract, but with characteristic business
man confidence in the other fellow, he often employs very general
terms and relies upon trade usages and the market-place sense of
fair play to cover the details.
He is, moreover, prone to assume that what is law among business
men in their dealings with each other, and in reliance upon which
they daily pay out large sums of money in purchase or settlement,
is also law ' he courts. Unfortunately, the law merchant and the
common "
have never yet been on all fours with each other, and
perhaps 1. _y never will precisely coincide, since it is the peculiar
function of the law merchant to be always reaching out to control
the latest developments in the commercial field, while the common
law must r ;ds await the definite crystallization of the mercantile
464
MICHIGAN LAW REVIEW
usage upon a particular point before it can in justice add its sanc
tion.1
In this instance, however, the business view and the legal doctrine
seems to have been in accord to the extent, at least, that both
regarded the rights of the respective classes of stockholders inter
sese as governed by the statute of incorporation, or by the contract,
expressed or implied in fact, under which the prefered stock was
issued.2 It is worthy of note that, although for upwards of seventy
years3 classification of corporate stock has been a common thing, and
the rights of the various classes with respect to each other have been
the substance of everyday business transactions in the issue and sale
of preferred and common shares and payment of dividends thereon,
yet business men have felt so confident of the interpretation given
those rights by the generally accepted mercantile usage that resort
to the courts has been rare indeed. In consequence, we find few
cases even indirectly involving our subject, either in England or
America, prior to the opening years of the twentieth century.
The implied contract of equality of shares in the simple corporate
situation with its one class of stock is now accepted as a matter of
course, but when our specific problem is presented with its diversi
fied classes of stock, one having priority over another in division of
profits, capital, or otherwise, then, as we have seen, the statute or
1 See Dean Pound's address, "Commerce and Legal Progress," delivered
before the Commercial Law League, July, 1917, in which he points out how
commerce has in the past opened up the path of progress for the law. 28
Amer1can Legal News, October, 1917; Commercial Law League of America,
Bulletin 1, XXII (1917), 6o8.
* Recent cases stating this settled view are : Paterson v. R. Paterson &
Sons, Ltd. (House of Lords), 1917, 54 Scot. L. Rep. 19; Speare v. RocklandRockport Lime Company, 113 Me. 285, 93 Atl. 754 ( 1915) ; In re National
Telephone Company, [1914] 1 Ch. 755; Bassett v. U. S. Cast Iron Pipe &
Foundry Co., 74 N. J. Eq. 668, 673, 7o Atl. 929 (19o8).
9Everhart v. West Chester, etc., R. R., 28 Pa. St. 339 (1857) ; Henry v.
Great Northern Ry. Co., I De. G. & J. 6o6 (1857).
See New York Act, March 29, 1848 (P. L. 238), empowering the New
York & Harlem R. Co., to issue preferred stock; Pennsylvania Act, March
4, 185o (P. L. 129), authorizing the Beaver Meadow Railroad & Coal Com
pany to issue preferred stock which was to be entitled to preference over all
other stock of said company in future dividends of profits; New Jersey Gen
eral Corporation Act, March 22, 186o (P. L. 6o3), first providing in that state
for the issue of special preferred stock.
PREFERRED AND COMMON STOCK

contract creating such classification becomes the dominant factor in
determining the respective rights of the different groups of stock
holders.*
The very fact that our problem is essentially one of statutory con
struction and interpretation of contracts has led some authorities
to belittle it as a matter of general legal interest,5 and probably
accounts for the off-hand manner in which the text-writers have
treated it, if, indeed, they touch upon it at all.0 On the other hand,
seldom are the courts called upon to decide a matter of such wide
spread significance to the business world, one in which frequently
the division of millions of dollars is at stake, and furthermore, we
have the statement of one of our most scholarly federal judges that
this is a field in which authoritative legal writing is much needed.7
That we may have a definite conception of the scope of our sub
ject, it must be emphasized that this discussion is limited to the
specific problem of the respective rights of the typical classes of
corporate stockholderspreferred and commonin the distribution
of the surplus profits of a going corporation for a particular year,
or in the division of an accumulated surplus of profits.8
* Note 2, supra, and cases discussed, infra.
"My Lords, this appeal raises a question of great interest from a busi
ness point of view, but it is difficult to see how it can be said to raise any
question of general legal interest. The point in dispute (our very subject)
is one of construction, and construction must always depend on the terms
of the particular instrument; it is only to a limited extent that other cases
decided upon different documents afford any guidance." Viscount Haldane.
L. C, in Will v. United Lankat Plantation Co., Ltd., [1914] A. C. 11, 15.
8VI Fletcher, Cycloped1a Corporat1ons (1919), Sec. 3755; I Cook on
Corporat1ons [7th ed., 1913], Sec. 269; IV Thompson on Corporat1ons [2nd
ed., 19o9], Sec. 36o3; Conyngton on Corporate Organ1zat1on [19o8 ed.], p.
7o, same in edition of 1917, p. ; II Clark and Marshall on Pr1vate
Corporat1ons (19o1), Sec. 417; Taylor on Corporat1ons fard ed., 1894],
Sec. 788; I Morawetz on Pr1vate Corporat1ons [2nd ed., 1886] , Sec. 456.
* "This is not the court in which it is appropriate to write an elaborate
essay on the rights of preferred shareholders, although the facts presented
in this brief record (relating to division of surplus profits^ afford the oppor
tunity. Such an essay, if well done and with authority, is much needed."
Hough, D. J., in Niles v. Ludlow Valve Mfg. Co., 196 Fed. 994 ^912).
* The authorities, generally, have made a distinction between a preference
in profits of a going concern and a preference in capital assets on liquidation,
holding that though stock is preferred in profits that does not make it pre-
466
MICHIGAN LAW REVIEW
The question arises from two general types of statutes or con

tracts :
I. Those statutes or contracts in which the preferred shares are
in express terms, or by words of necessary implication, allowed or
prohibited, as the case may be, a further participation in the profils
after they have received their stipulated preferential dividend."
Sometimes the statute or contract provides in great detail for the
rights of each class of stockholders in the distribution of profits.
For example, in an English case10 the company's memorandum of
association gave the preferred shares a preference dividend of seven
per cent and one-fifth of any surplus profits remaining after an
equal dividend had been paid to the ordinary shares. This method
indicates careful and intelligent draftsmanship and is to be highly
commended.
Very often the terminology is not so definite and certain as the
above, and the courts are forced to resort to the various documents
ferred in assets on a winding up, but it participates equally with the common
stock both as to return of capital and in division of surplus assets. In re
London India Rubber Co., L. R. 5 Eq. 518 (1868) ; Birch v. Cropper, 14 App.
Cas. 525 (1889); Lloyd v. Pennsylvania Electric Vehicle Co., 25 N. J. Eq.
263, 72 Atl. 16 (19o9).
The same has been held as to distribution of capital surplus of a going
corporation. Jones v. Concord & Montreal R. R., 67 N. H. 119, 234 (1891).
But see In re National Telephone Co., [1914] 1 Ch. 755, denying to stock
preferred both as to dividends and to assets, on a winding up, the right,
after being repaid its par value, to participate with the common shares in
distribution of surplus capital assets. Also, Michael v. Cayey-Coquas Tobacco
Co., 19o App. Div. 618, 18o N. Y. Supp. 532 (192o). Cf. In re Fraser &
Chalmers, Ltd., [1919] 2 Ch. 114.
9A careful research indicates that every decision relating to the right of
the preferred stockholders to share with the common stock in surplus profits
in excess of their stipulated dividend prior to 19o6 was of this type.
"Ashbury v. Watson, 3o Chan. Div. 376, 54 L. J. Ch. (N. S.) 985 (1885V
See also Field v. Lamson & Goodnow Mfg. Co., 162 Mass. 388, 38 N. E. 1126
(1894), where the statute (Mass. Laws 1885, Ch. 349. Sec. 2) expressly pro
vided that the holders of preferred stock in the defendant corporation should
"be entitled to all the privileges of other members of said corporation,
including the right to vote upon such stock," and the rights of the preferred
stock issued thereunder were very definitely stated, inter alia, "to share pro
rata with the holders of the common stock in any excess divided in any year
above a dividend on the whole stock of said company at said rate of six per
cent."
467
making up the contract relating to the particular stock issue and the
purposes they were designed to serve in order to determine the
rights of the respective groups of stockholders. In Bailey v. Han
nibal & St. Joseph R. Co.,11 the preferred stock certificate stated
that the holder was entitled to a preference in profits "up to $7 per
share" in each year, "and to share in any surplus beyond $7 per
share which may be divided upon the common stock." A dividend
of seven per cent having been declared on the preferred and three
and a half per cent on the common, a preferred shareholder sought
to share equally with the common in this fund, but the court looked
back to the plan of reorganization under which the bondholders sur
rendered their bonds for said preferred stock, and found that it
specifically provided that said stock was "to share with the common
stock any surplus which may be earned over and above 7 per cent
upon both in any one year," and dismissed the suit.
Also, in the well-known case of Gordon's Executors v. Richmond,
etc., R. Co.,12 the resolution under which the preferred stock was
issued provided that it should be entitled to share in all dividends
paid on the common in excess of the preferred dividend, and the
court accordingly admitted it to participate with the common in a
script dividend representing accumulated profits used for better
ments.
Then there are the opposite cases under this type in which the
statute or contract prohibited any further sharing of surplus profits
by the preferred stock after payment of the preferential dividend.
One such case involved the cutting of an eighty-million-dollar "mel
on" of accumulated surplus profits, and the common stock took it all
under a clause of the articles of association which, after providing
for the stipulated preferred dividend, added, "but to no other or
further share of the profits."18
These cases turn on well-settled legal principles, and perhaps their
chief value to the lawyer is to impress upon him the importance of
specifically covering this problem in drafting the various corporate
"84 U. S. (17 Wall.) 96 (1872).
"78 Va. 5o1 (1884).
" Equitable Life Assurance Society v. Union Pacific R. R. Co., 212 N. Y.
36o, 1o6 N. E. 92 (1914) ; also, Russell v. American Gas & Electric Co., 152
App. Div. (N. Y.) 136, 136 N. Y. Supp. 6o2 (1912).
468
MICHIGAN LAW REVIEW
papers relating to the classification of the stock," for, as we have

seen, once the courts discover explicit contractual provisions they
will enforce them, irrespective of the huge sums involved. They
also teach a very practical lesson to both the lawyer and business
man: that the purchaser of preferred stock cannot always depend
upon the purported definition of his rights in the stock certificate,
but in the abundance of precaution should check it up with the other
documents which together contain the contract governing that stock
issue.15
The other type of statute or contract might be termed the short
or mercantile form, and may be described as :
II. Those statutes or contracts providing for preferred shares
entitled to a specified preferential dividend before anything is paid
to the common stock, but containing no provision whatever respect
ing its right to share in any surplus profits in excess of the stipu
lated dividend.
It is this second type that presents the real legal problem in solv
ing the respective rights of preferred and common stockholders in
surplus profits. Strangely enough, we have but a judicial dictum
or two from the last century,18 and in fact the question seems to
have been first directly broached in Anglo-American law in 19o1,
in the leading case of Scott v. Baltimore & Ohio R. Co." That case,
however, as actually decided was of Type I, and it has derived its
outstanding importance from the dictum rather than the decision
"See suggested form in Palmer's Company Precedents, Part I [11th
ed., 1912], p. 1 1o6, Form 464 et seq.; V Cook on Corporat1ons [7th ed., 1913],
P. 4o44" It is agreed that the terms of these contracts are to be gathered from
the articles of incorporation or memorandum of association, the by-laws,
minutes of corporate meetings, resolutions of the stockholders and directors,
propositions or reports to the company, and agreements, conveyances, etc.,
pertaining to the issue of the stock in question, and classes having a prefer
ence over it. See I Cook on Corporat1ons [6th ed., 19o8], Sec 269.
"In re Bridgewater Navigation Co., 39 Ch. Div. 1, 11, 13 (1888) ; North,
J.; Birch v. Cropper, 14 App. Cas. 525, 531 (1889), Lord Herschell; In re
Bridgewater Navigation Co., [1891] 2 Ch. 317, Lindley, L. J., where profits
set apart by directors for depreciation, insurance, and improvements were
held on a winding up to go to ordinary shareholders exclusively, although
there were preferred shares entitled to a preferential dividend of five per cent.
"93 Md. 475, 49 Atl. 327 (19o1).
469
upon the point before us. It appeared that in the reorganization of

the railroad company preferred stock was issued which was entitled
to an annual non-cumulative dividend "up to, but not exceeding four
per centum before any dividend shall be set apart or paid upon the
common stock." A preferred stockholder who had received his stip
ulated dividend sought to participate upon an equal footing with the
common stock in the division of the remaining annual profits. The
court denied his claim on the ground that the words "not exceeding"
were words of limitation, measuring the maximum rights of the
preferred shareholders in distribution of profits.18
Our problem as presented under Type II might conceivably be
solved in any one of three ways r
(1) After payment of the agreed preferential dividend any bal
ance of profits be divided pari-passu among both the preferred and
common shares.
(2) Upon payment of the designated preferred dividend, a like
annual dividend be paid to the common stock any profits remaining
to be divided equally among both the preferred and common share
holders.
(3) When the preference dividend specified has been fully paid,
the entire residue of the profits to go exclusively to the common
stock.
To date no court has adopted the first of this triology of pos
sible solutions as applied to the Type II situation, the conflict of the
cases having centered about the respective merits of the second and
third views.
For a concise statement of the legal situation as it existed in 19o1
with respect to cases of Type II, we cannot do better than quote the
words of Page, J., in Scott v. Baltimore & Ohio R. Co}* (p. 5o2) :
"Whatever courts may hold eventually as to the right of
ordinary preferred stock20 to share in the residue of net earn"Semble St. John v. Eric Railway Co., 89 U. S. (22 Wall.) 136, 147
(1874), Swayne, J.
M See note 17, supra.
"The suggested distinction between "ordinary preferred stock," that is,
preferred stock issued simultaneously with the common stock or in ordinary
course of the corporate existence, as distinguished from such stock issued
in a reorganization adjustment, seems unsound in principle, and has not been
adopted in later cases.
MICHIGAN LAW RSV1EW

ings after its preferred dividend has been received, the main
tenance of that right, in the absence of anything in the con
tract creating such preferred stock, so far as we are informed,
has not yet been taken by any court. No decision holding
this has been furnished us by the very able and industrious
counsel"1 who argued this case for the appellant, and we have
found none ourselves. It is true that some text-writers22 do
intimate that such may be the law, but the cases cited are
those where there is express provision for the participation
in the surplus, and fall far short of sustaining the proposi
tion by which the appellants here seek to impose the addi
tional quality on the preferred stock. * * * So that there is
no room here for the argument that in declaring the rights
of the preferred stock it was not necessary to state particu
larly that it should have such attributes, because of the reason
that under well-settled principles of law it is entitled proprio
vigore to such participation."
The second or theoretical conception, however, succeeded in get
ting away to a running start, in spite of the fact that the third solu
tion seems to have been the original and generally accepted under
standing in business and financial circles.
Thus, in 19o6, in the very first decision of our problem under
Type II in Anglo-American law, we find the Pennsylvania Supreme
Court, in Fidelity Trust Co. v. Lehigh Valley R. Co.,28 upholding
" The most brilliant corporation lawyers of the time appeared in this
case (inter alia), John G. Johnson, Esq., of Philadelphia, Pa., for the appel
lant; William D. Guthrie, Esq., of New York City, for the appellee, and
Victor Morawetz, Esq., of New York City, for certain voting trustees.
"See I Cook on Corporat1ons [4th ed., 1898], Sec. 269: "It seems that
unless the contract expressly provides otherwise, preferred stockholders par
ticipate in the surplus profits remaining after the proper dividend has been
declared on. the preferred and an equal dividend on the common stock."
This statement is typical of most of the text-books of the day; cf., the more
conservative statement of Taylor on Pr1vate Corporat1ons [3rd ed., 1801],
Sec. 788: "Aside from considerations arising from the circumstance that
part of the shares are preferred, or that a part are more fully paid up than
others, every shareholder is entitled, both in the distribution of profits and
on the winding up of the corporation, to participate in proportion to the
number of shares held by him."
"215 Pa. 61o, 64 Atl. 629 (19o6).
471
the right of the preferred stock to share pro rata with the common
in the distribution of surplus profits remaining after payment of the
stipulated preference dividend, and a like annual dividend upon the
common stock. There the statute under which the preferred shares
were issued merely provided that they should be entitled to a divi
dend of ten per cent per annum before the other stock of the com
pany should participate in any further distribution of its profits.
Long before, the company had in three prosperous years paid an
extra dividend of ten per cent upon both the preferred and common
stock after payment of the preferential dividend and an equal divi
dend upon the common shares. The common stockholders claimed
these extra dividends should be treated as advance payment of the
stipulated preferred dividend, and should, therefore, be deducted
from arrearages due to preferred stockholders for unpaid dividends.
The court, however, denied the contention on the ground that the
statute fixed no limitation on the rights of the preferred stock in
granting it a fixed preference in dividends, "but when each class
of stock had been paid ten per cent they were equal and equally
entitled to partake of whatever remained in the fund applicable for
dividend purposes." No authorities were cited by the court in reach
ing this decision. Perhaps the result may be supported upon the
assumption, as appears in the case, that the two classes of stock
holders interested had adopted a practical interpretation of the
statute respecting their rights by acquiescing without objection in
that method of distributing the surplus profits.
By a coincidence, the next case under Type II, and the one which
has become the foremost champion for the second solution, also
arose in Pennsylvania. This was Sternbergh v. Brock,2* in 19o9.
The contract under which the preferred stock was issued provided
that it should "receive a cumulative yearly dividend of five per cent,
payable quarterly * * * before any dividend shall be set apart or
paid on the common stock," and the court held that the preferred
shareholders were entitled to share pro rata with the common stock
in surplus profits in excess of the preferential dividend and a divi
dend at an equal rate per cent upon the common shares. The dis
tribution of an eight per cent dividend among the common stock
holders was, therefore, enjoined so far as related to the amount in
14 225 Pa. 279, 74 Atl. 166 (19o9).
472
MICHIGAN LAW REVIEW
excess of five per cent. The fact that the common stock dividends
had been eighteen per cent upon the amount actually paid in thereon
was rejected as a practical interpretation by the parties on the ground
that it was immaterial since these dividends amounted to but two
per cent of the par value of said stock. In reaching its decision the
court declared there was no ambiguity in the contract, and laid down
the broad rule (p. 286) :
"Where there is no stipulation in the contract to the con
trary, the weight of authority clearly favors the right of pre
ferred stockholders to share with the common stockholders
in all profits distributed, after the latter have received an
amount equal to the stipulated dividend on the preferred
stock."
In view of the fact that at this time the entire "weight of author
ity" in the whole field of Anglo-American law was but its own deci
sion in the Fidelity Trust case three years previously, opposed to
which, as we have seen, was the strong dictum in Scott v. Baltimore
& Ohio R. Co., one is tempted to wonder whether this statement
may not have been used as a judicial smoke-cloud. Probably the
true explanation is that although the court cites only its own prior
decision and the opinions of several text-writers for this new doc
trine, it had in mind in using that expression the language of the
treatises, a majority of which did support this doctrine.25
Such was the condition of the law in 1912 when the question again
came up in Americathis time in the federal courtsand was also
first presented for decision to the English judges. In the American
case, Niles v. Ludlow Valve Mfg. Co.,20 a New Jersey corporation,
had an accumulated surplus of profits amounting to half a million
dollars, and the preferred stock having been paid its stipulated pref
erence dividends in full, the directors voted to distribute said sur
plus exclusively to the common stock, whereupon a preferred share
holder brought suit, claiming the right to participate equally with
the common stock in said distribution after that stock had received
an annual dividend equivalent to the preferred dividend. Under
* See notes 6 and 22, supra.
"1o6 Fed. 9o4 (D. C, S. D, N. Y.) (1912).

the New Jersey corporation laws in force when the corporation was
formed, the preferred stock was to be entitled "to a fixed yearly
dividend" to be stated in the certificate of incorporation. In this
instance the certificate of incorporation provided that the preferred
shares should "receive interest or dividends of 8 per cent per annum
and be27 preferred as to capital as well as dividends," while the stock
certificates simply stated an agreement to pay "to the holder of this
stock a yearly dividend of 8 per cent. * * *" The United States Dis
trict Court held that the preferred stock had no right to participate
in the distribution of these accumulated surplus profits, but, on the
contrary, that the entire amount belonged exclusively to the com
mon stockholders.
This decision was affirmed in the Circuit Court of Appeals.2"
Both courts laid much stress upon the practical construction of the
contract by the parties themselves as evincing their intention with
regard to their respective rights as preferred and common stock
holders. The evidence showed that for twenty years the corpora
tion had paid the stipulated preferential dividend, and in nearly
every year had also paid greater dividends to the common stock ;
that, in fact, for nine years the common dividend had been approxi
mately double the preferred.
The ratio decidendi of the case was thus expressed by Coxe, J.,
in the Circuit Court of Appeals (p. 143) :
" It has been sought to distinguish this case because of the presence of
the word "interest" (I Cook on Corporat1ons [7th ed., 1913], Sec. 269, note
3), but as the statute merely referred to a "yearly dividend," the word seems
to have no special significance. In New Jersey, Ohio, and several other states,
however, the issue of preferred stock is assimilated to the making of a
secured loan, thus : (a) the dividend rate may not exceed a prescribed max
imum (eight per cent, which in Ohio is also the legal maximum for interest) ;
(b) the amount of preferred stock which may be issued is limited and
gauged like that of corporate bonds proportionately to the actual paid in
capital (usually two-thirds) ; and (c) provision is made for redemption of
preferred stock at par, with accrued dividend. This would seem to import
a legislative recognition that the stipulated dividend per cent sets both a
maximum and a minimum to the rights of the preferred stockholders in
surplus profits. The point was not made in the principal case. N. J. Gen'1.
Corp. Law, 18, 149; Oh1o Gen'1, Code, 8667, 8668, 8669.
K 12o C. C. A. 319, 2o2 Fed. 141 (1913). Ward, J., dissented in favor
of the second or Pennsylvania view.
474
MICHIGAN LAW REVIEW

"The common shareholders bear substantially all the losses
of adversity and are entitled to the gains of prosperity. A
contract that they should assume all the risk with no corre
sponding advantage should be clearly established. We find
nothing in the law or the certificates or in the past action of
the defendant (the corporation) to indicate that anyone con
nected with the business supposed that the preferred stock
holders were to share equally with the common stockholders
in the division of surplus earnings."
The English case, unique as one of the first impression in those

long established courts, was that of Will v. United Lankat Planta
tions Co., Ltd.29 By the articles of association the defendant cor
poration was authorized to issue preferred shares and to fix their
preference or priority. Accordingly, the resolution authorizing the
issue of the preferred stock provided, that it should '"be entitled to
a cumulative preferential dividend at the rate of ten per cent per
annum * * * and to rank both as regards capital and dividends in
priority to the other shares." The company, which was chiefly
engaged in tobacco cultivation in Sumatra, sold the rubber branch
of its business for 3o,ooo and 45,ooo fully paid shares of 1 each
in a new company, and the stipulated preferred dividend having
been paid in full, allotted the 45,ooo shares to the common stock
holders exclusively. A preferred stockholder began suit to have
said distribution declared illegal, and to obtain a declaration that the
preferred shares were entitled to rank for dividend pari passu in
any profits of the company available for distribution after providing
for the cumulative preferential dividend of ten per cent per annum
and an equal dividend on the ordinary shares.
In the Chancery Division, Joyce, J., made the declaration sought,
basing his decision upon his interpretation of a section of the articler,
of association which read :
"Subject to any priorities that may be given upon the issue
of any new shares, the profits of the company available for
distribution * * * shall be distributed as dividend among the
members in accordance with the amounts paid on the shares
held by them respectively."
" 1o6 L. T. Rep. (N. S.) S31.
475
The judge thus stated his position (p. 533) :

"In my opinion, when you look at the thing calmly and
fairly, the right of priority given to the preference class is
the right to be paid ten per cent, at least in respect of the
current year, and in respect of past years, and subject to that
right, the profits are to be divided amongst both classes accord
ing to the amount paid upon their shares."80
Although pressed with the admitted fact that the preferred had
never received more than the specified dividend, while much larger
dividends had been from time to time paid on the ordinary shares,
the court refused to consider that practical interpretation of their
rights by the parties as material in the face of its own construction
of the contract. In other words, the decision here was almost iden
tical with the earlier Pennsylvania decision in the Sternbergh case,
although that case was not cited to or by this court.
The Court of Appeals,31 however, unanimously reversed the Chan
cery Division, and expressly held, in accord with the third or mer
cantile view, that, in the absence of any provision to the contrary in
the statute or contract under which the preferred shares were issued,
they are entitled to their stipulated dividend only, and to no other
share in the surplus profits, at least, while the corporation is a going
concern. On appeal, the House of Lords unanimously affirmed this
decision32 on the ground that, as a matter of interpretation of the
Type II statute or contract, the third solution was correct and the
second erroneous.
Thus, before the end of the year 1914 the practical view had over
taken the theoretical solution and wrested from it the weight of
authority. Since then the second view has been twice reaffirmed in
the state of its nativityPennsylvania33 while the third method
"This language of the learned judge would support the first view, but
his decision did not go that far.
" [1912] 2 Ch. 571, 1o7 L. T. Rep. (N. S.) 36o.
" [1914] A. C. 11, 83 L. J. Ch. (N. S.) 195, 1o9 L. T. Rep. (N. S.) 754"Stirling v. H. F. Watson Co., 241 Pa. 1o5, 88 AH. 297 (1913). There
the preferred stock was entitled to a cumulative semi-annual dividend of
four per cent, and was subject to retirement upon payment of the par value
and all arrears of dividends. The company undertook to retire the preferred
stock by deducting from arrearages of dividends a twenty-five per cent stock
476
MICHIGAN LAW REVIEW
was approved and followed in 19 17, in an unreported case, by a fed

eral court sitting in that state,34 and during the autumn of 192o the
Supreme Court of Maine added its support.35
So much for the state of the authorities. Let us now consider
dividend which had been distributed equally to preferred and common, but
the court held said dividend could not be charged against the back dividends
as common and preferred, after each has received an equal dividend, have
the "right to participate in the distribution of surplus earnings upon an
equal basis."
In Englander v. Osborne, 261 Pa. 366, 1o4 Atl. 614 (1918), (also 6 A. L.
R. 8oo and note), the Pennsylvania court settled a doubtful point raised
by the broad language of the rule laid down in the Sternbergh case, and
not decided in the Sterling case, viz. : must the common stock, after pay
ment of the preferred dividends in full, be paid past omitted dividends
equal to all the preferred had received, or only that particular year's dividend
to the same amount as the annual preferential dividend? It was held that
the common shares were only entitled to an equivalent dividend for the cur
rent year and not to be reimbursed for unearned dividends in past years ;
therefore, the preferred stockholders were entitled to share pro rata with
the common stock in all profits distributed after the latter have received in
any year an amount equal to the stipulated dividend on the preferred stock.
Notice this leaves open the question of the right of the common stockholders
to profits in excess of the preferred dividend retained from year to year for
depreciation, betterments and improvements. For a criticism of this case,
see 3 M1nn. Law Rev. 65 (Dec. 1918).
"Keith v. Carbon Steel Co. (U. S. D. C, W. D. Pa.), Orr, D. J. Opin
ion denying preliminary injunction filed April 3o, 1g17; opinion on final
hearing filed August, 1917. In that case the holder of preferred non-cumu
lative six per cent stock, who had received the preference dividend in fuli,
brought suit to restrain the corporation from paying accumulated earnings
amounting to nearly one-half of its entire capital exclusively to the common
stock, but the court rejected the Pennsylvania doctrine, and adopted the
third view both as a matter of principle and upon authority of the Niles case
and the English decisions.
"Stone v. U. -,S. Envelope Co., Me. , m Atl. 536 (192o), Deasy. J.
A common stockholder sought to restrain the corporation from distributing
equally between the common and preferred shares a stock dividend repre
senting an accumulated surplus of earnings which the directors in their dis
cretion had retained and employed for betterments and improvements, claim
ing that as the preferred had been paid in full, its stipulated annual dividend
of seven per cent, all remaining profits belonged solely to the common. The
court upheld this contention, placing its decision expressly upon the third
or mercantile doctrine. Semble: Bassett v. U. S. Cast Iron & Foundry Co.,
75 N. J. Eq. 539, S41. 73 Atl. 514 (19o9)-
477
the matter on principle. Which of the various criteria suggested

should be accorded legal sanction, or rather, which of the conceiv
able solutions of this Type II phase of our problem best combines
the support of legal principles, and adaptation to the actualities of
the commercial field in which it is to operate, so that it most nearly
attains actual justice in the concrete case?
We may summarily dismiss the first view, for, as pointed out, it
has never found favor either in the courts or among business men.
The question is thereby narrowed to an issue between our second
and third suggested solutions.
The Pennsylvania or second criterion is based upon the very plau
sible argument of many text-writers that "a share of stock is a share
of stock, whether preferred or common."38 The underlying theory
is that since in the simple corporate situation with one class of stock
all shares are equal, classification of the stock into preferred and
common does not displace this basic equality, but to the extent of
the preference amplifies the rights of the preferred stock, therefore,
in the absence of distinctly restrictive provisions, the preferred stock
holders possess all the rights of common stockholders, and in addi
tion their own special advantages.87 We find this idea well expressed
in the dissenting opinion of Ward, J., in Niles v. Ludlow Valve Mfg.
Co., (p. 144) :
"The general principle is that all stockholders share equally
in net profits, except as their relations are altered by statute
or contract. If a preference is given to one class of stock
holders over the rest, it should be construed consistently with
this general principle as far as possible. For instance, if the
preferred stockholders are given the right to receive a divi
dend of a fixed amount before the common stockholders get
anything, the latter should next receive an equal amount, and
then the surplus, if any, be equally divided between the pre
ferred and common stockholders. Where the privilege is
"See I Cook on Corporat1ons [5th ed., 19o2, and subsequent editions],
Sec. 269, where the learned author in a footnote advocates this as the theo
retically and logically correct principle, in spite of the mercantile view to
the contrary. This view seems to be fundamentally a syllogism.
" Sternbergh v. Brock, and other Pennsylvania cases (supra).
"In U. S. Circuit Court of Appeals, 2nd Circuit, 2o2 Fed. 141 (1o13).
47
MICHIGAN LAW REVIEW

intended to be restrictive, the intention should be expressed,
as by saying that the preferred stockholders are to be paid a
certain dividend before the common stockholders get any
thing, and are to receive nothing more."
There is also somewhat of legal analogy in support of this view.*9

For example, although apparently not called to the attention of the
Pennsylvania court, the basic principle of its doctrine had been pre
viously enunciated and applied by the courts in the closely analogous
situation of the respective rights of stockholders, whether preferred
or deferred as to profits, to share in a distribution of capital. In
the leading case of Jones v. Concord & Montreal R. R.,* Doe, C. J.,
relying upon the simple concept that a share of stock is a share of
stock, no matter what adjective is attached to it, allowed all classi
fications of stock to share pro rata in a stock dividend distributing
a capital surplus.41
This fundamental premise of the equality of corporate shares,
which constitutes the heart and substance of the second view, was
accepted by the text-writers generally and by the Pennsylvania
Supreme Court as axiomatic,41 but in the later case of Will v. United
Lankat Plantation Co., Ltd.,iS the English judges vigorously
"One naturally thinks of the oft-repeated statements of the text-writers
that where stock is given a preferential dividend, nothing being said as to
whether it is to be cumulative or non-cumulative, it shall be deemed to be
cumulative, and that preferred stock, in the absence of provision to the con
trary, possesses equal voting power with the common, but the cases do not
bear out this broad phraseology.
"67 N. H. 119 (1891), and other cases cited in note 7, supra.
" It should be noted, however, that on a rehearing (67 N. H. 234) (1892)
the court (Isaac Smith, J.) specifically distinguished our problem, pointing
out (p. 241) that it did not appear what the corporation had earned, or what
division had been made of its earnings ; therefore, "The facts stated in the
case do not show that the proposed issue of new stock is a dividend of earn
ings (belonging to different classes of stockholders), or a violation of any
provision of the contract of union (under which the various shares were
issued) relating to dividends." Also, In re Bridgewater Navigation Co.,
[1891] 2 Ch. 317, where profits reserved for depreciation and similar pur
poses were given exclusively to the ordinary shareholders and not distrib
uted pro rata to the preferred shares on the winding up of the company as
were the capital assets.
" See note 36, supra.
479
denounced this hypothesis as untrue. Speaking on this point in the

House of Lords, Viscount Haldane, Lord Chancellor, said (p. 17) :
"I think that Lord Justice Farwell called attention to what
is really a cardinal consideration in this matter. Shares are
not issued in the abstract and priorities then attached to
them; the issue of shares and the attachment of priorities
proceed uno flatu; and when you turn to the terms on which
the shares are issued you expect to find all the rights as
regards dividends specified in the terms of the issue. And
when you do find these things prescribed it certainly appears
to me unnatural to go beyond them, and look to the general
provisions of an article which is only to apply if nothing
different is said" (i. e., no priorities specified).
The third solution has been adopted by other courts as an excep
tion to the general principle of equality of shares. For instance, in
the very latest case4* the Maine Supreme Court said :
"We put the decision, however, upon the ground that,
where nothing to the contrary appears, the creation of pre
ferred stock prima facie implies that the preferential rights
of the stockholder are given in lieu of and to the exclusion
of the equality in participation which would otherwise exist."
The maxim, "Expressio unins est exclusio alterius," is fre
quently made the basis for the third solution. The reasons which
lead the courts to resort to this old maxim on the point before us
are well stated by Orr, D. J., in Keith v. Carbon Steel Co.,*9 where,
in denying to a preferred stockholder who had been paid in full a
preliminary injunction restraining distribution of all remaining
profits to the common stock, he said :
"The holders of the preferred stock must be deemed to
have been unwilling to take the same risks as the holders of
the common stock were willing to take. In other words, they
were not willing to take their certificates without an expres- " Stone v. U. S. Envelope Co., Me. , 11 1 Atl. 536 (192o).
"Broom's Legal Max1ms, p. 651.
** See note 34, supra.
480
MICHIGAN LAW REVIEW

sion therein of the amount which they were entitled, respec
tively, to receive out of the profits. * * * We are unable to
see why, in contracts such as these before us, the expression
of the amount to be received under the contract should not
be deemed to be an exclusion from the minds of the parties
of any additional amount. * * * A certificate of stock does
not ordinarily express the share of profits which a stock
holder shall receive from the corporation, and therefore the
law implies a term in the agreement that the holder of such
certificates shall share equally in the profits set apart by the
management for the payment of dividends. There can be
no implication, however, where the contract expressly states
the percentage which the one contracting party is to receive
from another."47
The courts adopting the third view have also relied much upon
the long-established canon of construction that in the interpretation
of obscure statutes and contracts the legislature or the parties, as
the case may be, must be presumed to intend that which is reason
able under the circumstances.48 Applying this reasonable construc
tion to our specific question, these courts argue that it is highly
unreasonable that the common stock should bear substantially all
** "When you findas you find herethe word 'dividend' used in the
way in which the expression is used in the resolution and defined to be 'a
cumulative preferential dividend,' you have something so definitely pointed
to as to suggest that it contains the whole of what a shareholder is to look
to from the company." Viscount Haldane, L. C, in Will v. United Lankat
Plantation Co., Ltd., [1914V A. C. 11, 18.
In Stone v. U. S. Envelope Co., Me. , 11 1 Atl. 536, 537 (192o),
Deasy, J. : "The maxim, 'Expressio unius,' etc., applies to this case and is
decisive. The parties by a contract embodied in the by-laws have provided
for the preferred stockholders a seven per cent preferential dividend and in
case of liquidation one hundred per cent. This excludes other participation."
Cf. In re National Telephone Co., [1914] 1 Ch. 755, holding where the
preferred stock was expressly given a priority in repayment of assets on a
winding up, that was prima facie a definition of the whole of their rights in
this respect; therefore, they could not share with the common in the distri
bution of surplus assets.
** I B1,ackstone's Commentar1es 61, concerning the interpretation of
laws, subdiv. 5.

the losses of the lean years and let the protected preferred stock
enjoy pro rata the results of the prosperous years ; that "a contract
they should assume all the risk with no corresponding advantage
should be clearly established.'"''9 The de facto basis of this reasoning
is thus pointed out by Orr, J. :50
"It is a matter of common experience that at the inception
of the business of a corporation the returns from such busi
ness will be uncertain. Because there may not be sufficient
earnings which may be distributed to all the stock, yet suf
ficient for part thereof, classifications of such stock are under
taken to induce subscriptions to the capital stock. Investors
who desire more certainty with respect to their returns are
more inclined to subscribe for shares which are preferred
over other shares in the distribution of earnings. Those
stockholders who are content that those who desire imme
diate returns should have the preferred stock, and who them
selves are willing to wait until the earnings become great
enough to give them proper returns, are content to take com
mon stock. It is not reasonable to suppose that the common
stockholders would at once have the same share in the earn
ings as the preferred stockholders, and it is not reasonable
to suppose it was ever contemplated that they should, because
the holders of the preferred stock have stipulated for the
amount of dividend that they should receive. The classifica
tion of the stock of defendant company was by the sharehold
ers. * * *"
The learned judge concludes by quoting the statement of Coxe, J.,
in Niles v. Ludlow Valve Mfg. Co., that "The common stockholders
bear substantially all the losses of adversity and are entitled to the
gains of prosperity."
While the result of Will v. United Lankat Plantations Co., Ltd.?1
was the rejection of the second view and the definite adoption of
the third solution by the courts of England, yet there is a most sig"Coxe, J., in Niles v. Ludlow Valve Mfg. Co., 2o2 Fed. 141, at 143.
" See notes 31 and 32, supra.
MICHIGAN LAW REVIEW
482
nificant distinction between the ratio decidendi of that case in the

Court of Appeal and in the House of Lords.
The opinions of the Lords make no mention of the mercantile
view as such, but they join issue with the second solution upon its
own footing as a matter of theoretical and logical construction of
the contract. This is illustrated by Viscount Haldane's declaration
(P- 17) :
"You do not look outside a document of this kind in order
to see what the bargain is ; you look for it as contained within
the four corners of the document."
Thus stated, the essential difference between the second and third
solutions, as a matter of pure interpretation, seems to lie in the truth
of the hypotheses upon which the respective views are basedthat
in the absence of express provision one way or the other, diversified
classes of stock are born equal, or are in their very creation subject
to preferences or limitations.
In other words, the House of Lords and the Pennsylvania court
have this in common : they agree that the contract is not ambiguous ;
hence it is to be interpreted within its four corners ; and they arrive
at this conclusion of non-ambiguity simply because each tribunal
assumes the infallibility of its own hypothesis.52 But it should be
noted that each hypothesis is essentially one of fact. Then how are
we to determine whether this assumption of fact is true or not'
Surely by testing it with the reality ; yet that is precisely what both
these courts refuse to do, for by their assumption of non-ambiguity in
the contract they render inadmissible extrinsic evidence of the actual
ities of the business world, since, theoretically, there remains nothing
doubtful requiring explanation, and this in spite of the fact that the
parties have left utterly unprovided for the very situation in issue.53
"This is an excellent illustration of our lagging science of law as pointed
out by Dean Pound : "Today, while other sciences, in the wake of the nat
ural sciences, have abandoned deduction from pre-determined conceptions,
such is still the accepted method of jurisprudence." Law in Books and Law
in Action, 44 Am. Law Rev1ew 12, 25 (191o).
As Dean Pound has said, "Turn where one will, in matters of the very
first importance to the commercial world, the law of business corporations,
the law of partnership, restrictive agreements upon the sale of chattelsin
483
In each instance "the postulates are taken for granted upon authority,
without inquiry into their worth, and then logic is used as the only
tool to develop the results."54 Here the authority relied upon by
the Pennsylvania court was the general opinion of the text-writers,
while the House of Lords pretends to rely upon its judicial knowl
edge.55
To the harassed business man the opinion of these courts must
appear merely another exasperating example of the unfathomable
technicality of the lawa scholastic indifference to the pressing
actualities of the market-place. This is the very attitude of the
judiciary which Justice Holmes so pointedly criticized:
"We must think things not words, or at least we must con
stantly translate our thoughts into the facts for which they
stand, if we are to keep to the real and true."58
On the other hand, our business man would find no difficulty in com
prehending the opinion of the Court of Appeal in the W1ll case,57
for that takes cognizance of matters within his experience and
environment, and expressly adopts the mercantile view. Note the
pragmatic viewpoint as there set forth by the Master of the Rolls
(Cozens-Hardy) (at p. 576) :
"What is the ordinary prima facie meaning of preference
shares having a fixed dividend, fixed in this sense that it does
not vary with the profits of the year, but is a fixed dividend
of 1o per cent per annum. It seems to me that the ordinary
meaning is that the resolution defines and limits the dividend
all these cases we see precisely the same refusal to look at the situation of
fact in the actual world, the same insistence upon the self-sufficiency of
abstract legal conceptions, the same logical development of the traditional
doctrine at all cost." Address before the Commercial Law League, July 26,
1917. 28 Am. Legal News, October, 1917; Commercial Law League of
America, Bulletin I, XXII (1917) 6o8.
M Holmes, J., "Law in Science and Science in Law," 12 Harvard Law
Rev1ew 443, 46o. Reprinted in Holmes, "Collected Legal Papers" (192o).
" The Lords cited no authority for their premise, but seem to have adopted
it a priori.
M See note 54, supra.
44
MICHIGAN LAW REVIEW

which a preference shareholder can take. I accept and adopt
the observation of a living writer whose experience in this
matter is very great (Palmer's Company Precedents [nth
Edit.], p. 814) : 'It is generally assumed that where the pref
erence shares are given a fixed preferential dividend at a
specified rate that impliedly negatives any right to take any
further dividend, and probably this assumption is well
founded.' In my opinion, that assumption is well founded.
* * * One cannot be aware to any extent of what goes on on
the stock exchange without knowing that preferential shares
and stock are ordinarily spoken of and regarded, and I think
properly regarded, as shares of stock which carry a fixed
preferential dividend, and are not entitled to anything more."
After all, is this not primarily a business man's problem, the verykind of matter that was dealt with in early English law in the extra
legal mercantile courts,58 and for which Lord Mansfield devised his
famous merchant jury? The actuality is that we have here a busi
ness man's contract of a type commonly made and dealt with in the
ordinary course of mercantile transactions, a contract known to
and interpreted by the business world for generations without once
seeking the aid of the courtsclear evidence that it was founded
on a well-established law merchant. During all that time, too, the
general business understanding of the respective rights of the classes
of stockholders mentioned was daily published broadcast in the
stock exchange quotations, where the common shares of a successful
corporation always commanded a premium over the preferred.
Notice the remark of Earl Loreburn in the Will case50 (p. 19) :
"My Lords, I have no doubt myself, in regard to this par
ticular resolution, that the people who took the preference
shares under it knew perfectly well that they were laking
shares with a preferential dividend of 1o per cent. I think
they would have been rather surprised, although no doubt
they would have been gratified, if they had been told that
MI Pollock and Ma1tland, H1story of the Engl1sh Law [2nd ed.,
1899], p. 465.
485
they were about to receive the almost boundless additional

advantages which have been held out to them in the argu
ments we have been hearing."
But why did they not expect it. There is just one answer, since the
contract, it must be remembered, is silent on the subject: they knew
that by the established law merchant they were not entitled to more
than the stipulated preference.
Truly, we must revamp our legal conceptions by the old maxim
of the civilians, ex facto oritur jus, recognizing that to have a living
law it must grow in harmony with the de facto situation.80 Viewed
in this way. how much more scientific, in the sense of that which is
simple and in accord with the actualities, is the frank avowal of the
prevailing law merchant by the English Court of Appeal than the
artificial reasoning of the House of Lords01 and the Pennsylvania
court. It faces the realities of the problem, and simply adopts the
law merchant to give effect to what must have been the true, but
unexpressed, intent of the parties,business men familiar with the
mercantile understanding, and, therefore, presumably dealing with
that established interpretation of such contracts in mind.02
This triumph of the third or mercantile solution of the Type IT
case was no mere accident, but probably our most complete example
of wholly twentieth century-made law. True to the master juristic
thought of the time this commercial usage became a rule of law, not
merely because it fitted well into established legal principles, but
Speaking of this maxim, "Justice Brandeis says : "It [the court] real
ized that no law, written or unwritten, can be understood without a full
knowledge of the facts out of which it arises, and to which it is to be
applied." "The Living Law," 1o III. Law Rev1ew, 461, 467 (1o16).
" The House of Lords seems to reach the correct result here by the
anomalous method of adhering to "case-knife" terminology while adminis
tering "pick-axe" justice, as Dean Pound expresses it in the words of Tom
Sawyer and Huck Finn. "Law in Books and Law in Action," 44 Am. Law
Rev1ew 12 (191o).
"The legal consequence of the now dominant third view seems to be
the standardizing of the preferred stock contract, Type II, and the creation
of a new statusthat of a preferred stockholder whose rights are fixed by
reason of his position ; another step in the modern reaction of the pendulum
of the law from contract to status, suggested by Nathan Isaacs, "Standardiz
ing of Contracts," 27 Yale Law Journal 34. 37 (1917)-
486
MICHIGAN LAW REVIEW
chiefly for the reason that, being itself the product of the actualities
of the field in which it was to operate, it promised best to function
for real justice in the every-day life of the community.83
George Jarv1s Thompson.
Unii>ersity of Pittsburgh La1v School.
** "Perhaps the most significant advance in the modern science of law is
the change from the analytical to the functional standpoint. For the jurist
of today, the world over, seeks to discover and to ponder the actual social
effects of legal institutions and legal doctrines. * * * Men no longer think in
closed systems nor seek to foreclose change by rigid postulates from which
all details are to be inevitable logical deductions." Dean Pound, "Anachron
isms in Law," address delivered before the Conference of the Bar Associa
tion Delegates, at the 1917 meeting of the American Bar Association. 3 Jr.
Am. Jud. Soc. 142.
DOES THE CONSTITUTION PROTECT FREE SPEECH?

MANY thoughtful men and women, witnessing the suppression
of speech, by means both judicial and extra-judicial, in the
period through which we have just passed, have reluctantly con
cluded that our hard won right of freedom of speech has been lost,
swept away in the flood tide of war enthusiasm. They point to the
example of the recent candidate for the presidency, Eugene Debs,
who is still confined in a federal prison for words he uttered during
the war. They call attention to the fact that the fate of Mr. Debs
is no worse than that of scores of other persons, members of his and
other minority groups, who have gone to jail since April, 1917, for
giving utterance to unpopular opinions. Finally, they show us a
widespread wave of "anti-disturbance" legislation among our state
legislatures during and immediately after the war.1
Things have now quieted down. We no longer jump with appre
hension at hearing the word "Bolshevist." Attention is turning ta
the multitude of questions arising out of our return to a de facto,
if not a de jure, state of peace. In the meantime, our federal
Supreme Court has had occasion, in cases arising under the Espion
age Act, to give us some authoritative expositions of the legal mean
ing of that freedom of speech guaranteed by our Constitution. It
seems desirable to see how far these decisions have taken us in set
ting out the limits of lawful speech, before our interest is entirely
diverted to matters more pressing.
"Congress shall make no law * * * abridging the freedom of speech
or of the press." These are the unyielding words of the First
Amendment, the first of the federal "Bill of Rights." Similar pro
visions are to be found in nearly all State constitutions.2 Do the
words mean, literally, that neither Congress nor legislature can pun1 For references to these statutes and a criticism of their effectiveness,
see 2o Columb1a L. Rev. 232 (Feb., 192o), and see a note in 4 Amer. L. Rep.
336 on "Validity of Legislation Against Dangerous Social or Industrial
Propaganda."
9 While a few of the states have taken this identical language, most of
them have taken their free speech clause from the New York Constitution
of 1822, Art. 7, 8. Thus, the Iowa Constitution, Art. 1, 7, provides :
"Every person may speak, write and publish his sentiments on all subjects,
488
MICHIGAN LAW REVIEW
ish words alone, no matter what they are? A few examples will
show that such an absolute conception of the meaning of freedom
of speech is untenable. A man might persuade another to murder
his enemy, he might defame his neighbor, he might perjure himself
on the witness stand, he might induce a soldier to desert his post.
Surely, constitutional protection was not meant for him.
But if a definition of free speech is not to be an absolute one,
applicable to all words, what is it to be? So far as the question
involves legal rights secured by a constitution, we naturally turn to
the decisions of courts of final authority whose function is to inter
pret the Constitution. The legal significance of many clauses of
our federal Constitution has been determined in this fashion. The
"commerce clause," by which the Congress was given authority to
regulate interstate commerce, and the "due process of law" clause
of the Fourteenth Amendment are examples which readily suggest
themselves.
With the free speech provision we have no such help. The
Supreme Court has said that the Bill of Rights in the Constitution
was designed simply to embody certain general guaranties inherited
from English ancestors, which had always been subject to certain
well-defined exceptions arising from necessity.3 So the free speech
clause does not prevent the exclusion of lottery tickets4 or obscene
matter" from the mails ; neither does it privilege words interfering
with pending proceedings in a court of justice.9 No doubt we may
safely say that speech which would be a common law tort or crime
is still a basis of liability despite a free speech clause.7 But until the
recent cases under the war-time Espionage Act came before the
Supreme Court there was little to mark out for us what the limits
being responsible for the abuse of that right. No law shall be passed to
restrain or abridge the liberty of speech or of the press * * *"
Robertson v. Baldwin, 165 U. S. 275, 281.
' In re Rapier, 143 U. S. 1 1o.
1 Ex parte Jackson, o6 U. S. 727.
* Gompers v. Bucks Stove and Range Co., 221 U. S. 418. Accord, Field
v. Thornell, 1o6 Iowa 7, article commenting on merits of prosecution's case,
delivered to members of the jury before the cause was submitted to them.
' Chafee in 32 Harv. L. Rev. 943, citing Mr. Justice Holmes in Frohwerk
v. United States, 39 Sup. Ct. Rep. 249, 25o: "The First Amendment * * *
obviously was not intended to give immunity for every possible use of lan
guage * * * We venture to believe that neither Hamilton, nor Madison, nor
FREE SPEECH
489
of free speech are.8 Standard treatises on constitutional law devote

little space to a discussion of the First Amendment,0 and indeed
their authors had little on which to base such discussion. The Sedi
tion Act of 1798 made it a criminal offense to publish false matter
against "either house of the Congress of the United States or
the president of the United States with intent to bring them or either
of them into contempt or disrepute." There were convictions under
this act shocking to one's sense of justice.10 but it expired by its own
limitation before Chief Justice Marshall reached the Supreme Bench,
and before the court had announced its authority to declare an act
of Congress unconstitutional. Good authority, Jefferson included,
believed the law in conflict with the Constitution.11 Again, in 1861,
any other competent person then or later, ever supposed that to make crim
inal the counselling of a murder * * * would be an unconstitutional interfer
ence with free speech."
8 Legal periodicals have been full of well written discussions of this sub
ject recently, several of the articles dealing with the historical basis of free
speech problems. The present writer has nothing original to add to what
has been said on the historical point. For the different theories regarding
what freedom of speech and press means, see Pound, "Equitable Relief
Against Defamation," 29 Harv. L. Rev. 64o, 65o. Professor Chafee, in "Free
dom of Speech in War Time," 32 Harv. L. Rev. 932, elaborates and discusses
the theories. His criticism of Blackstone's conception that freedom here
means freedom from censorship, and a second theory, that freedom of speech
distinguishes "use" and "abuse" of utterance, is so complete that further
elaboration is unnecessary. With this essay, too, may be found a long and
useful list of references on the topic in general. In addition, on the histor
ical side, see "Constitutionality of Sedition Laws," by M. G. Wallace, 6 Va.
L. Rev. 385 ; "Freedom of Speech and the Press in the Federalist Period ;
The Sedition Act," by Thomas F. Carroll, 18 M1ch. L. Rev. 615; "The Power
of Government over Speech and Press," by F. G. Hart, 29 Yale L. Jour. 41o.
Since this discussion was written has appeared "Freedom of Speech and
Press under the First Amendment : A Resume," by Prof. Edward S. Corwin,
3o Yale L. Jour. 48 (Nov., 192o), and comment thereon by C. E. C. on page
68 of the same number.
" See, for instance, the paucity of treatment in a work like W1lloughby
on the Const1tut1on, 45o, 451.
"United States v. Callender, 25 Fed. Cas. No. 14. 7o9; United States v.
Cooper, 25 Fed. Cas. No. 14, 865.
" See M. G. Wallace in 6 Va. L. Rev. on 386, and authority cited. In
Abrams v. United States, infra, Mr. Justice Holmes says : "I had conceived
that the United States through many years had shown its repentance for the
Sedition Act of 1798 * * * by repaying fines that it imposed."
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MICHIGAN LAW REVIEW
an act punished conspiracy to levy war against the United States,

but nothing decided under it gives an authoritative exposition of
the right of free speech.
Of more than usual interest, then, are the cases which our Supreme
Court has decided under the recent Espionage Act.12 Not all of the
decisions are worthy of notice here, for some of them went off on
technical points. Others are very important. As might be expected,
some of them have been the subject of hot controversy. The bril
liant dissent of Mr. Justice Holmes in the famous Abrams v. United
States case, of which more hereafter, was called by different (and
differing) writers in one of our best legal periodicals "shocking in
its obtuse indifference to the vital issues at stake in August, 1918,
and * * * ominous in its portent of like indifference to pending and
coming issues,"13 and "a literary and judicial classic" the courageous
language of which "saves from pessimism those who still have faith
in our Bill of rights."14
The Espionage Act was passed by Congress June 15, 1917.15 Title
One, Section Three of this statute made it a crime, while the United
States is at war, (1) to make false statements with intent to inter
fere with the operation of our fighting forces ; (2) to cause or attempt
to cause disloyalty or insubordination in army or navy; (3) will
fully to obstruct or attempt to obstruct recruiting. In 1918 the list
of crimes was greatly enlarged to reach "individual disloyal utter
ances." Nine more offenses were added.19 .Such prosecutions as
have been passed upon in the Supreme Court decisions have not,
however, brought the broader prohibitions of the amended act under
"Sugarman v. United States, 249 U. S. 182, 39 Sup. Ct. Rep. 191 (not
an important case on development of the law. The court decides that an
instruction given was substantially equivalent to the one asked) ; Schenck v.
United States, 249 U. S. 47, 39 Sup. Ct. Rep. 247 ; Frohwerk v. United States,
249 U. S. 2o4, 39 Sup. Ct. Rep. 249; Debs v. United States, 249 U. S. 211, 39
Sup. Ct. Rep. 252; Abrams v. United States, 25o U. S. 616, 4o Sup. Ct. Rep.
17; Stilson v. United States, 25o U. S. 583., 4o Sup. Ct. 28 (deals with pro
cedural matters only) ; Schaefer v. United States, 251 U. S. 466, 4o Sup. Ct.
Rep. 259 1 Pierce v. United States, 4o Sup. Ct. Rep. 2o5 ; O'Connell v. United
States, 4o Sup. Ct. Rep. 444 (deals with procedural matters).
Dean John H. Wigmore in 14 III. L. Rev. 539, 545.
" See note by L. G. C, 14 IIl. L. Rev. 6o1.
UU. S. Comp. Stat. S. 1917, 1o212c.
"Act of May 16, 1918, U. S. Comp. Stat. 1918, 1o212c.
FREE SPEECH
491
its scrutiny. It cannot be said on authority, for instance, whether

"abusive language about * * * the uniform of the Army of the
United States" (one of the crimes under the amended act), spoken
by a perspiring second lieutenant on a sticky August day about his
leather puttees, is given immunity by the free speech clause of the
Constitution or not. But while the cases decided by the Supreme
Court under this statute by no means give us a complete text-book
on free speech, they are worth noticing somewhat in detail, for they
are the most important authority we have.
Schenck v. United States" affirmed the conviction of Schenck,
general secretary of the Socialist party, for conspiracy to cause and
attempt to cause insubordination in the military forces and to obstruct
enlistment service. Schenck was found to have been instrumental
in sending out a circular, which attacked the conscription act, to men
who had been called and accepted for military service. From the
reported decision it appears that the defendant did not deny that
the jury could have found the circular was intended to induce drafted
men to obstruct the operation of the selective service law.
Mr. Justice Holmes, delivering the unanimous opinion of the
court, made clear two points: first, the right of free speech, under
which Schenck claimed immunity, is not an absolute and unchanging
thing. War does make a difference. "When a nation is at war many
things that might be said in time of peace are such a hindrance to its
efforts that their utterance will not be endured so long as men fight."
Where the lawmaking body may draw the line we are not told ; this
question was not before the court. The defense seems to have
admitted that Congress could lawfully penalize interference with
fighting forces. The only question then was, how far could the law
go in punishing a conspiracy for attempting to interfere?
The second important thing done in this decision is to lay down
a test of liability for speech :
"The question in every case is whether the words are used
in such circumstances and are of such a nature as to create
a clear and present danger that they itrill bring about the sub
stantive evils that Congress had a right to prevent.""
"249 U. S. 47, 39 Sup. Ct. Rep. 247.
" Italics are mine.
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MICHIGAN LAW REVIEW
This is very important ; the liability is not to be found in the general

effect of the words, nor in what may be thought to be their danger
ous tendency. Instead, the test is similar to the common law liability
for attempt to commit a crimethe act done by the wrongdoer must
have come dangerously near to success.19 "Success" in this instance
would be the substantive evil specified by Congress in the statute,
interference with fighting forces of the country in war-time.
In two other cases the same month, March, 1919, the unanimous
court, again through Mr. Justice Holmes, reiterated the same crite
rion of "clear and present danger," in affirming the conviction of
Frohwerk,20 of the Missouri Staats-Zeitung, and that of Eugene
Debs.21 The Debs case has been unpopular in some quarters on the
ground that the accused was convicted merely because the jury
thought the speech, upon which the charges against him were based,
had perhaps some general tendency (as distinguished from a clear
and present danger) to bring about resistance to the draft.22 Whether
or not that is the fact, the Supreme Court does not change its first
statement of the law governing liability for speech.
In November, 1919, was decided the case of Abrams v. United
States,23 probably the most widely known of all the Espionage cases,
the conduct of which has provoked much adverse discussion.2' The
defendants in this case had prepared and distributed circulars for the
purpose of opposing participation by the United States in the cam
paign against the Bolshevik government. The circulars were abusive
of the president, denounced an alleged union of capitalism and mili
tarism in the allied nations, and made the stock appeal to the workers
for a general strike as a reply to the "barbaric intervention." The
defendants were convicted under the amended Espionage Act. and
the conviction affirmed by a divided Supreme Court, Justices Holmes
11 See Joseph H. Beale, "Criminal Attempts," 16 Harv. L. Rev. 491.
"Frohwerk v. United States, 249 U. S. 2o4, 39 Sup. Ct. Rep. 249.
"Debs v. United States, 249 U. S. 211, 39 Sup. Ct. Rep. 252.
"See 19 New Republ1c 19; 19 New Republ1c 151. This is Professor
Chafee's view. See p. 968 of his article, above cited, in 32 Harvard Law
Rev1ew.
"25o U. S. 616, 4o Sup. Ct. Rep. 17
" The best the writer has seen is that of Professor Z. Chafee, "A Con
temporary State TrialThe United States versus Jacob Abrams ct al.," 33
Harv. L. Rev. 747.
FREE SPEECH
493
and Brandeis dissenting. Despite the fact that the judges disagreed,
it is difficult to put a finger on the exact difference between majority
and minority as to the law. The dissenters urged that there was
no evidence on which a jury of reasonable men could find against
the defendants. "The surreptitious publishing of a silly leaflet by
an unknown man" could not present any immediate danger of inter
ference with the success of government arms, thought the minority.
The majority opinion spends little time in discussing the law, seem
ing to assume constitutional points settled by the previous cases
already mentioned. It denounces the conduct of the defendants and
deems the evidence sufficient to sustain their conviction. Professor
Chafee's able discussion of the history of the case25 makes one believe
that great injustice has been done the individuals condemned to spend
the best part of their lives in jail. But the majority's opinion does
not write that injustice into the law, at least so far as the language
goes. It might as well have been a memorandum decision affirming
the conviction, for all the help it gives in defining constitutional lim
its of free speech. The dissent of Mr. Justice Holmes, whether right
or wrong in his view of the facts, is a fine expression of pragmatic
legal philosophy and well deserves to be called "a literary and judi, cial classic." It has been widely quoted, but it is eloquent enough
to deserve repetition of an excerpt which is worth several readings :
"Persecution for the expression of opinions seems to me
perfectly logical. If you have no doubt of your premises or
your power, and want a certain result with all your heart,
you naturally express your wishes in law and sweep away
all opposition. To allow opposition by speech seems to indi
cate that you think the speech impotent, as when a man says
that he has squared the circle, or that you do not care whole
heartedly for the result, or that you doubt either your power
or your premises. But when men have realized that time has
upset many fighting faiths, they may come to believe even
more than they believe the very foundations of their own
conduct, that the ultimate good desired is better reached by
free trade in ideasthat the best test of truth is the power
of the thought to get itself accepted in the competition of
" See reference in note 24.
494
MICHIGAN LAW REVIEW

the market, and that truth is the only ground upon which
their wishes safely can be carried out. That, at any rate, is
the theory of our Constitution. It is an experiment, as all
life is an experiment.28 Every year, if not every day, we
have to wager our salvation upon some prophecy based upon
imperfect knowledge. While that experiment is part of our
system, I think that we should be eternally vigilant against
attempts to check the expression of opinions that we loath
and believe to be fraught with death, unless they so immi
nently threaten immediate interference with the lawful and
pressing purposes of the law that an immediate check is
required to save the country. * * * Only the emergency that
makes it immediately dangerous to leave the correction of
evil counsels to time warrants making any exception to the
sweeping command, 'Congress shall make no law abridging
the freedom of speech.' * ** * I regret that I cannot put into
more impressive words my belief that in their conviction
upon this indictment the defendants were deprived of their
rights under the Constitution of the United States."
In March, 192o, we have the last two important Espionage deci

sions. In each, Justices Holmes and Brandeis dissent. The first
case, that of Schaefer v. United States," affirmed the conviction of
officers of an obscure Pennsylvania concern publishing a weak little
German newspaper. Again the majority opinion discusses facts for
the most part. Mr. Justice McKenna, speaking for the majority of
of the court, says that when free speech or any right "becomes
wrong by excess is somewhat elusive of definition," and he does
not tell us where he will draw the line. Mr. Justice Brandeis reemphasizes the "clear and present danger" criterion of liability, and
the majority do not dispute his test.
"This thought is too much for Dean Wigmore to stomach, and in his
discussion in 14 IIl. L. Rev., on p. 561, he sets it out in capitals with an
abundance of exclamation points. He says : "* * * when found publicly
recorded in an opinion of the Supreme Guardians of that Constitution,
licensing propaganda which in the next case before the court may be directed
against that Constitution itself, this language is ominous indeed." Does
Dean Wigmore mean that our Constitution is the last step possible in the
evolution of government, and hence above criticism?
" 4o Sup. Ct. Rep. 259.
FREE SPEECH
495
It seems to the writer that the last case decided, Pierce v. United
States, March 8, 192o, is the most important decision since the
Schenck case, the first under the act. It was a particularly striking
one on its facts, and even a reading of the decision of the majority
of the court, which sustained the conviction of the defendants,
makes one feel that the punishing of the prisoners was very harsh.
The act done by the defendants was the distribution of a pam
phlet sent out from Socialist headquarters to the Albany, New York,
"local" for distribution. When the literature first arrived the ques
tion of its distribution was brought up, and acting on the advice of
a lawyer member, the Albany group voted to postpone their circula
tion of the matter until the outcome of a Maryland prosecution,
involving the same pamphlet, was determined. The Maryland judge
ordered an acquittal of the defendants in the prosecution before him.
It seemed safe, therefore, to go ahead in Albany, and this was done.
But the distributors were arrested there, a jury readily convicted
them, and their conviction was affirmed by the Supreme Court.
The literature which brought these men to grief was a four-page
leaflet written by Irvin St. John Tucker, an Episcopal clergyman,
who, as Mr. Justice Brandeis points out, was a man of sufficient
prominence to have been included in "Who's Who in America" for
1916-1917. The pamphlet pictured the horrors of the war, though
not more vividly than some of the descriptions and pictures that a
benevolent censor permitted to come before our eyes from official
sources. It argued that the misery depicted was the logical outcome
of the refusal of the people to accept Socialism. It called attention
to rising food prices, stated that "The attorney general of the United
States is so busy sending to prison men who do not stand up when
'The Star-Spangled Banner' is played that he has no time to protect
the food supply from gamblers." Though no harsher than charges
made by opponents since, this must have been a sore point with the
prosecution, for it was felt necessary to show that civilians were
not compelled by law to stand when the National Anthem was
played.
Injustice may have been done the particular individuals involved.
That is a question that could only be fairly passed upon after exam"4o Sup. Ct. Rep. 2o5.
496
MICHIGAN LAW REVIEW
ination of the whole record of the case in upper and lower courts.
Even then opinions might well differ. But it seems to the writer
that the decision is important because the majority opinion, this
time through the very able Mr. Justice Pitney, adopts the doctrines
technically known as "indirect causation" and "constructive intent"
as a source of liability. If the majority of the court does adopt
them, then the decision is most important and the Espionage Act
has become a most effective silencer of all but the most polite dis
cussion for all war-time periods until it is repealed.
The doctrines mentioned are of long standing,29 but for a hun
dred and twenty years had not been applied in the United States.
Their meaning can be easily explained. Admit that the evil the
statute is aimed to prevent is one regarding which Congress has
power to exercise preventive measures, causing insubordination in
the army, for instance. What words come within the penalty of
the law? May all speech which might be said to have some tend
ency, however remote, to bring about acts in violation of law be
punished, or only words which directly incite to acts in violation
of law ? Suppose that a man criticizes army food, do not his words
have some tendency, at least in the mind of a jury with a strong
imagination and in thorough sympathy with the war, to cause unrest
and subsequent insubordination among soldiers? And it wouldn't
matter, would it, whether the words were said directly to a soldier,
or to a woman's club some of whose members had relatives or
friends in .the army? Under this doctrine of "indirect causation"
words can be punished for supposed bad tendency long before the
probability arises that they will break into unlawful acts. It is obvi
ous that this test of liability is in sharp contrast with the "clear and
present danger" rule of Mr. Justice Holmes. It has far-reaching
consequences. What about the man who denounces an excess
profits tax bill? Do not his words have a tendency to encourage
another to violate the law ? What of the Arizona statesman who is
reported to have said that if the United States Government gave
Caranza permission to take troops through his State he hoped the
people would prevent their passage. Did his words not have a
"tendency" to provoke violence? Any person of influence who
" Fuller discussion of these doctrines may be found in Professor Chafee's
article, p. 948 et scq., in 32 Harv. L. Rev1ew.
FREE SPEECH
497
expresses an opinion in some way remotely encourages another to

act in accordance with the opinion expressed.
Hand in hand with this "indirect causation" doctrine goes that
of "constructive intent." The only intent the defendant must have
is intent to write or speak the words he did. If the words have a
bad tendency we will presume the man intended unlawful conse
quences, on the ground that he is presumed to intend the conse
quences of his acts. Now we have many places in the law where
a man is liable for consequences even when he did not specifically
intend them. If he shot off a gun at random in a crowded street,
and killed someone, he certainly could not escape punishment by
saying he didn't intend to kill his victim. We can say that he is
presumed to intend the natural consequence of his act, which is
pure fiction.30 We may accurately say that specific intent to hit
the very person he did is not by law required in order to hold him
liable. But often crimes do require a specific intent, and if they
do, such intent must be proved.31 When a penal statute, such as
the Espionage Act, makes certain speech a crime, such as advo
cating curtailment of production of things necessary to the prose
cution of the war, "with intent * * * to hinder * * * the United
States in the prosecution of the war," must not the words be taken
in their literal sense? To go back to the answer of Mr. Justice
Holmes in the Abrams case :
"They would be absurd in any other. A patriot might
think that we were wasting money on aeroplanes, or making
more cannon of a certain kind than we needed, and might
advocate curtailment with success; yet even if it turned out
*0 But which is nevertheless stock language among those legal writers
who are not careful of their speech. See, for example, Hughes, Cr1m1nal
Law and Procedure, 2464. For a good discussion of the inaccuracy of
the statement, see Professor Jeremiah Smith, "Surviving Fictions," 27 Yale
L. Jour. 147, 156-158. As Judge Smith points out, if the statement is true
that a man is really taken to intend the consequences of his acts, every cause
of action based on negligence is turned into one for intentional wrongdoing.
And to such cases the doctrine of contributory negligence would not apply.
Steinmetz v. Kelly, 72 Ind. 442.
" McCla1n, Cr1m1nal Law, 123; B1shop on Cr1m1nal Law [7th ed.],
342; see collection of decisions in Beale's Cases on Cr1m1nal Law [3rd ed.],
beginning on p. 133.
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MICHIGAN LAW REVIEW

that the curtailment hindered the United States in the prose
cution of the war, no one would hold such conduct a crime.''32
"Constructive intent" and "indirect causation" had appeared in

lower federal court decisions under the Espionage Act.33 Does the
Supreme Court adopt them in the P1erce case? Says Mr. Justice
Pitney :
"Whether the statements contained in the pamphlets had
a natural tendency to produce the forbidden consequences
* * * was a question to be determined * * * by the jury * * *
It was shown without dispute that the defendants distributed
the pamphlet'The Price We Pay'with full understand
ing of its contents ; and this of itself furnished a ground for
attributing to them an intent to bring about * * * any and all
such consequences as reasonably might be anticipated from
its distribution."**
If the majority of our highest court are applying the "indirect
causation" and "constructive intent" tests as a basis for liability
under the Espionage Act, we have an easy explanation for the
division of that body through the group of decisions beginning with
the Abrams case.
This ends the discussion of the constitutional right of free speech
by our highest court.35 We probably shall have no more light upon
it from this source in the immediate future.
In determining what is the final effect of these adjudications on
the law of free speech, we should bear in mind the following: (1)
That the Espionage Act is a war-time statute, and the court has
emphasized a difference between the limits of speech in war and
peace; (2) If the majority of the court has adopted the "indirect
causation" and "constructive intent" doctrines they have not in so
many words squarely overruled the Schenck case with its criterion
of "clear and present danger" and told the minority that they were
"4o Sup. Ct. Rep. 17, on p. 21.
" United States v. O'Hare, 253 Fed. 538 ; Masses Pub. Co. v. Patten, 244
Fed. 533. See a note on "The Espionage Cases," 32 Harv. L. Rev. 417.
M Italics are mine. The excerpt is from 4o Sup. Ct Rep., on page 2o9.
"The last decision, O'Connell v. United States, 4o Sup. Ct. 444, merely
cites previous decisions as establishing the constitutionality of the Espionage '
Act.
FREE SPEECH
499
doing so, and why; (3) At subsequent time the disagreements in

the cases may be explained as pertaining to the facts only and the
minority's exposition of the law may be taken as the doctrine of the
court.
Finally, may we not be skeptical whether, in this present era of
"social" thought and outlook, the right of the minority to say what
it pleases will get the vigorous protection against the majority's
desire to dictate what shall be said that it would have received in
days when individualistic notions were stronger? The recalcitrant
minority is being compelled constantly to subject itself to many
restrictions upon its liberty in doing acts heretofore considered per
fectly lawful. The one time sacred right of freedom of contract is
fettered in every motion. Laws regulate hours of labor, working
conditions, the people one may hire, the minimum wage he is allowed
to pay, the damages he must give for industrial accidents.39 One
is told where he may build an apartment house and where he may
not.37 His children must be vaccinated, inspected, and psycholog
ically tested38 before they can go to school. If he is a venereal sus
pect he is rushed willy nilly to a hospital for inspection and treat
ment.39 Purchase of intoxicants is prevented by a constitutional
amendment; even the buying of the innocuous "Camel" or "Fatima"
involves a breach of the law in many States.40 All of this in the
name of protection to societyas interpreted by the majority.
" An immense amount of this legislation has come within the last ten
years. Yet it seems to be accepted as a matter of fact, once the laws are on
the statute books.
" That this is lawful under the power of eminent domain, is the holding
of the Minnesota case of State ex rel. Twin City, etc., Co. v. Houghton, 176
N. W. 159, commented upon in 4 M1nn. L. Rev. 5o and 236, and in 18 M1ch.
L. Rev. 523.
" I know of no state law requiring passing a psychological test exam
ination as a prerequisite to admission to schools, but there are schools where
applicants for admission are tested in this way. Vaccination laws are of
course common.
" See 1286 et seq. of Comp1led Code of Iowa, 1919. See also Ex parte
Brown, 172 N. W. 522 (Neb.). The Iowa case of Wragg v. Griffin, 17o N.
W. 4oo, holding that a suspect could not be held for the purpose of making
a "Wasserman test," was decided before the present Iowa statute was passed.
5 Iowa Law Bullet1n 63.
"Comp1led Code of Iowa, 1919, 8866 et seq.
5oo
MICHIGAN LAW REVIEW
Courts are upholding such "social'' legislation with increasing sym

pathy, which is what we wish them to do. The majority opinion in
Lochner v. New York*1 the New York bakers' case, seems a long
way off. But will not the same kind of argument and the same line
of thought which upholds a law which restricts a man in the con
tracts he may make, or limits him in the use to which he may law
fully put his real estate, uphold a law limiting the exercise of his
tongue when the majority so wills it?42
Granted the question of freedom of speech is one of social values,
will not the advocates of free speech, as the champions of minimum
wage laws, have to convince their fellow citizens that their cause is
righteous, that the benefits outweigh the dangers, that justice, fair
play, and the common good demand that every side, no matter how
unpopular, be given a hearing in the public's forum? Reverting to
Mr. Justice Holmes43 again, "The best test of truth is the power of
the thought to get itself accepted in the competition of the market."
There is the place where the battle for restriction of freedom of
contract has been won. If unrestricted speech cannot win in the
same field, we shall probably have to get along without it.44
Herbert F. Goodrich.
College of Law, State University of Iowa.
41 198 U. S. 45. The time measured in years is not long, for the case was
decided in 19o4.
** See Professor Corwin's article, cited in note 8, and a suggestion in a
note, "The Espionage Act and the Limits of Legal Toleration," 33 Harv. L.
Rev. 442, 447, for expressions of opinion somewhat along this line.
" In his dissent in the Ahrams case.
44 Since the above discussion was written, the Supreme Court has decided
the case of Gilbert v. Minnesota (Lr. S. S. Ct., Adv. Opinions, Jan. 15, 1921,
p. 146). The defendant was convicted for violation of a Minnesota statute,
enacted during the war, making it an offense to "advocate * * * that the
citizens of this state should not aid or assist the United States in prosecuting
or carrying on war with the public enemies of the United States." Defend
ant's conviction was affirmed by the Supreme Court of Minnesota and the
case came before the Federal Supreme Court on proceedings in error. The
judgment was affirmed; opinion by Mr. Justice McKenna; Mr. Justice Holmes
concurred in the result. The Chief Justice dissented, as did Mr. Justice
Brandeis, who wrote a dissenting opinion,
It is to be noted that no question of violation of the federal free speech
clause was involved ; the statute was a creature of the state legislature, not
congress. Nor was the court called upon to review the correctness of the
FREE SPEECH
501
state court's view of its own constitution ; only questions of federal rights
were before it. So denunciation of the conduct of the accused, or disapproval
of the sweeping prohibitions of the statute, both found in the opinions, are
not involved in the legal questions unless they bring in rights under laws,
treaties, or the Constitution of the United States.
One ground of attack on the statute was that the jurisdiction of Congress
to legislate upon the subject was exclusive. It was upon this ground that
the Chief Justice dissented, and Mr. Justice Brandeis also relied upon it as
one reason for reversal. But the majority reject it, saying through their
spokesman : "Cold and technical reasoning in its minute consideration may
indeed insist on a separation of the sovereignties, and resistance in each to
any cooperation from the other, but there is opposing demonstration in the
fact that this country is one composed of many, and must on occasions be
animated as one, and that the constituted and constituting sovereignties must
have the power of cooperation against the enemies of all. Of such instance,
we think, is the statute of Minnesota, and it goes no farther."
Unless there was some other ground on which a constitutional right
could be invoked, then, there was nothing to do but affirm the judgment.
It was contended for plaintiff in error that the statute was obnoxious to the
"inherent right of free speech." Conceding there is such a right, says the
majority, it is subject to restriction and limitation, and cites the Espionage
Act cases. Mr. Justice Brandeis, contending that the statute "affects rights,
privileges, and immunities of one who is a citizen of the United States,"
and that it so affects him as to deprive him of liberty, is alone on this ground
of his dissent.
It seems to the writer that the decision reinforces the conclusion already
set out above concerning what we may expect in the way of court interfer
ence on legislative restrictions on speech. Reliance on general privileges
and immunities of citizens would seem even less protection to one violating
a restriction than a free speech provision.
READINGS FROM ANCIENT CHINESE CODES AND

OTHER SOURCES OF CHINESE LAW AND
LEGAL IDEAS1
WITH the legal profession today there is a growing interest in
the study of universal legal ideas. Legal ideas, it would seem,
gain strength by extension both in time and in space. As ius
gentium is necessarily more congenial to human reason than ius civile,
so it may be said that the laws of all ages are more deep-seated in
human nature than those of a particular generation. The scope of
comparative jurisprudence, therefore, embraces all the length and
breadth of legal scholarship, so that it cannot afford to ignore any
materials that may give us light upon the legal notions of the ancient
world.
China is the oldest nation that flourishes on the globe today. Her
civilization had already attained a high stage of development when
that of Rome was still in its cradle.2 A country could not possibly
have lasted so long without sound legal principles as her foundation
and without having continually drunk from the life-giving fountain
of justice to perpetually renovate herself. Much of the material in
the ancient Chinese law has hitherto been buried in the almost inac
cessible mines of Chinese literature ; and a great need has been felt,
especially by the comparative jurists, of whom Dean Wigmore is
an acknowledged leader, for translations of Chinese legal documents
into English.8 We, indeed, find here and there some legal points
1 By ancient China I mean to include the period from 2255 B. C. to 63o
A. D. The dates for the various dynasties and reigns are taken from the
comparative chronological tables of Chinese cycles in the "Chinese-English
Dictionary" compiled by Dr. Herbert Allen Giles one of the most accom
plished Occidental students of the Chinese literature and history. These tables
are generally recognized as accurate. I have no other means for determining
their authenticity. It may, perhaps, be assumed that they may be depended
upon for the proper chronological sequence of the dynasties and reigns, and
therefore for conclusions as to the relative antiquity of the several documents
cited.
1 For verification of this statement, see Judge Lobingier"s article "A
Bibliographical Introduction to the Study of Chinese Law," 26 The Green
Bag, 399. It is advisable to read his whole article.
8Dean Wigmore has expressed his desire to see materials in the ancient
CHINESE LAW AND LEGAL IDEAS
5o3
in Dr. James Legge's Translations of the Chinese Classics; but it

is very difficult to get at them there, as they are intermingled with
many heterogeneous topics. I have accordingly undertaken a trans
lation, altogether new, of the important passages found in the Chi
nese Classics; and this article presents a translation of the Chinese
law, by a Chinese bred under the genuine Chinese influence.
The greater portion of the readings is for the first time rendered
into English, so far as my limited research warrants me in saying.
The legal literature of the Han Dynasty is very rich, consisting
principally of the edicts of the emperors, in which we find not a
few basic principles of law. The fact that the Chinese are still des
ignating themselves as "men of Han" evidences that they have
greatly cherished the law of Han, which virtually forms a part of
the "law of the land." In truth, the law of Han is the law of lib
erty, of toleration, and of mercy, as will be seen in the readings.
The Annotated Code of the T'ang Dynasty is now rare even in its
original language ; in fact, I had hunted after it for three long years
before I could procure a copy in an old book-store in Shanghai.
From a juristic point of view, this code has far greater value than
the well-known Ta Tsing Leu Lee, which has been translated by
Sir George Thomas Stuanton. Some time later I may be able to
translate the whole code with its interesting and instructive anno
tations. In the present article I content myself with selecting some
of the general provisions.
I have made some comments, in the foot-notes, on the develop
ments of the ancient notions of criminal justice; I have also tried
to show the connection of law with the society and circumstances
of the time in which it originated or existed. Further, I have called
attention to the three evolutionary stages in the progress of law,
which are, in Professor Kocourek's phraseology, (1) the period of
confusion of religion and law, (2) the anethical stage, and (3) a
synthesis of law and morals.* Finally, an attempt has been made
to convince the world of the abundant preparation of the Chinese
legal mind for the acceptance of the modern sociological jurispruChinese law translated, both in his letter to Judge Lobingier in 1o14 and in
his letter to me last fall.
4 See Professor Kocourek's Introduction to Berolzheimer's The World's
Legal Ph1losoph1es in the Modern Legal Philosophy Series, p. xxx.
5o4
MICHIGAN LAW REVIEW
dence, in the hope that extraterritoriality may be withdrawn from

the oldest land of freedom and justice. In the field of law, ancient
China produced a Law of Nature School, with Lao-Tzse as its
founder; a Humanistic School, with Confucius at its head, and
Emperor Wen as its patron; a Positivist School, with Shang Iang
for its leader ; and lastly, the Historical School, represented by Pan
Koo. I have carefully selected from each of these schools repre
sentative works; and the modern jurist, I trust, will not fail to
grant that a wise combination and adjustment of the four elements
enunciated therein, namely, pure reason, administrative justice, cer
tainty and definiteness, and the idea of historical growth, brings us
very near to the twentieth century conceptions of law.
Sect1on IRead1ngs from the Shu K1ng, or the Book of
H1story5
1. From the Canon of Shun?
The Emperor promulgated the Penal Code, in which banishments
were introduced as substitutes for the preexisting five corporeal
penalties, namely, (1) branding on the forehead, (2) cutting off
the nose, (3) cutting off the feet, (4) castration, and (5) death.
He also ordained that the whip should be used in the magistrate's
courts, and the birch-rod be employed as a reformatory measure
and pecuniary fines be imposed for minor offenses.7 It is further
8 The Book of History was compiled by Confucius ; it contains a series
of historical records, covering the period from 2355 B. C. to 719 B. C. The
following three extracts are translated from "Lan Peng Shu K1ng," vol. 1,
pp. 14-18; vol. 1, pp. 26-27; vol. 4, pp. 28-36, respectively. "Lan Peng Shu
K1ng" was printed by the Glass Factory, Peking, China, in the vear 188o
It is an authorized edition, consisting of four volumes. It is sold at nearly
every book-store in China; it is also to be found in the University of Michigan
Library.
For comparison,, see Legge's Translation of the Shu K1ng in Vol. Ill
of Max Miiller's Sacred Books of the East, pp. 37-45, 48-49, 254-255; also
Walter Gorn Old's The Shu K1ng, pp. 9-21, 23-24, 284-292; also S. Couvreur's
Chou K1ng avec une Double Traduct1on en Franca1s et Lat1n, pp. 12-32,
36-38. 375-39o.
* Emperor Shun reigned from 2255 to 22o5 B. C.
* From this it may be inferred that prior to the time of Shun the use of
punishment as a reformatory measure was unknown. It should also be
noticed that he introduced the birch-rod and fines merely for minor and
55
provided in the Code that wrongs through pure inadvertence or

because of accident should be wholly forgiven, while those who
should presumptuously and deliberately violate the laws should suf
fer to the full extent the prescribed penalties.
The Emperor said to himself : "O ! Let me be ever so reverent,
and let mercy be my watch-word in administering punishments. * * *"The Emperor instructed Kao Yao,* saying: ''Kao Yao, the bar
barous tribes disturb our beautiful land, and there are also among
our own people robbers, murderers, insurgents, and traitors. It is
your duty, as a criminal officer, to apply the five corporeal punish
ments, for the infliction of which, remember, there are the three
appointed places ; that is to say, the infliction of death should be
performed in an open field, castration should be done in a secret
apartment, and the remaining three modes of punishments should
be inflicted under roof, lest the cold should affect a wound and cause
death. With reference to banishments in general, there are the five
prescribed directions, and in each direction there are three grada
tions of distance. Remember that it is only when you judge in
accord with reason and justice that your decision will be willingly
accepted by the parties and gain popular approval."
2. From the Counsels of Ta Yu?
The Emperor said : "Kao Yao, I have been delighted to see, since
you took charge of the administration of justice, that none of my
ministers or subjects have offended against the laws. It is due to
your clear interpretation of the penal laws and your intelligent
application of them to the inculcation of the numerous cardinal
duties that belong to the five ordinary relationships of man.9* that
peace and order have prevailed in the Empire. You have acted
emendable offenses. For graver wrongs, either mutilation or banishment
was resorted to. In fact, for many centuries after his time the purposes of
punishment continued to be vengeance and outlawry, because punishments
by mutilation, which were not abolished until the reign of Emperor Wen
of Han in the second century B. C, could never be consonant with the idea
of reformation.
8 Kao Yao was the Minister of Justice.
'The following discourse took place in the year 2222 B. C, approximately.
"The five ordinary relationships are (1) King and Subject, (2) Father
and Son, (3) Brother and Brother, (4) Husband and Wife, and (5) Friend
and Friend.
56
MICHIGAN LAW REVIEW
upon the proper conviction that the ultimate purpose of penal laws
lies not so much in punishing the guilty as in lifting the people
above the necessity of punishments, so that they may set themselves
to the cultivation of virtue and practice of moderation. Th1s is
meritorious, indeed."
Kao Yao replied: "My Emperor, you are perfect in virtue. You
deal with your (inferiors without haughty pretentions, and you
govern the people with a sympathetic attitude and tender hands.
Under your auspicious rule, punishments do not extend to the heirs
of a criminal, while rewards10 reach to successive generations. You
pardon inadvertent acts, no matter how serious their effects may be ;
and you punish intentional offenses, notwithstanding their triviality.
Both in imposing punishments and in conferring rewards, you give
your subjects the benefit of a doubt. Between the possible alterna
tives of shedding innocent blood and releasing a guilty person, you
prefer the latter.11 Your mercy and moderation has so influenced
the minds of the whole people that they would scarcely think of dis
obeying their superiors or of doing violence to each other."
3. King Muh's Instructions to His Princes and Officers upon the
Promulgation of the Penal Code Prepared by the Marquis of
Liu.12
* ** * Thc.King said : "It appears from the ancient records that
Chi Yiu was the first to bring about confusion and sow the seeds of
discord among the people, so that the greater portion of the whole
population, being affected by the bad influence, became robbers, mur
derers, oppressors of the righteous, adulterers, conspirators, and
traitors.
"It is also recorded that the rulers of the Meaou tribes did not
employ moderation in regulating punishments. They introduced
the five kinds of terrible penalties, calling them laws, and recklessly
10 To the ancient Chinese mind reward and punishment were necessary
correlatives; this conception had its origin in the patriarchal theory of gov
ernment, whose principle was moral discipline. Hence Oliver Goldsmith's
observation, "The English laws punish vices ; the Chinese laws do more, they
reward virtue." See Alubone, Prose Quotat1ons, p. 4o0.
11 This corresponds to the proverb, "Better ten guilty escape than one
innocent suffer." As human judgment is finite, it is always safer to err o'1
the side of mercy.
"The Code was promulgated in the year 95o B. C.
507
butchered many an innocent victim. They were the inventors of

such tortures as the slitting of nose and ears, castration and brand
ing;13 and those who were suspected of crimes were indiscriminately
punished, without allowing them to plead their cause or to offer any
excuse. Thereupon, their people fell into a desperate state, and
were driven to the practice of dishonesty and perjury, finding no
safety whatever in being law-abiding. There began a reign, of ter
ror; and, instead of the sweet savour of virtue, the scent of inno
cent blood went up to the pitying Heaven. Then our great Emperor
Shun stood for the cause of the suffering multitude, and repaid14
their oppressors through his dread majesty, cutting off the Meaovites. * * * Po E was then directed to formulate and promulgate a
penal code for the regulation of the people. * * * All the magistrates
were commanded to keep the people within due bounds of law, to
the end that they might be led to appreciate and cultivate virtue.* * *"
The King continued: "Ah, you magistrates and criminal judges,
are you not the appointed shepherds of the whole people? Follow
the example of Po E, who gave his lessons to the people in order
to avert punishments. Take warning from the rulers of Meaou.
who would not inquire into the circumstances of criminal cases,
thus making punishments instrumentalities of oppression ; and who,
instead of selecting proper men to look after the right apportioning
of the five punishments, chose the violent and the bribe-snatchers
as judges."
The King continued : "* * * Heaven, in its wish to regulate the
people, allows us sometimes to make use of punishments, but it is
our own duty to hasten the day in which they may be totally dis
pensed with. If I would put an innocent man to death, do not
approve of me so as to assist me in oppression ; nor should you fol
low my opinion, if I would spare a guilty person, lest we should
relax the law.15 Reverently apportion the five punishments to the
crimes, so as to develop the three virtues.10 Then shall I, the One
King Muh denounced these punishments, but did not abolish them.
This shows that the then current sense of justice was in favor of retaining
them. Nose for nose, ear for ear, wound for wound, was probably the orig
inal idea.
" The word "repaid" is another evidence of the idea of vengeance.
"Here we find some suggestion as to the independence of the judiciary.
"The three virtues are mercy, justice, and rectitude.
5o8
MICHIGAN LAW REVIEW
Man, enjoy felicity; and the people be at rest under my happy

regime."
The King continued: "Ah, you Governors of States and Terri
tories, come, and I will show you how to make punishments a means
of Messing. Your mission is to give repose to the people. To attain
this end, you should choose none but proper men to fill the public
posts; you should deal cautiously with criminal matters; and finally,
you must be compassionate and considerate toward prisoners, so as
to see whether there be any possibility of exculpating them. When
both parties are present, with their documents and witnesses all
complete, let the judges listen to the five kinds of charges that may
be made. When they have carefully examined and been fully con
vinced of the guilt of the prisoner, let them apply one of the five
punishments; but if the crime does not deserve corporeal punish
ment, let them inflict one of the five fines. If it appears, to them
that the offense is such as deserves neither corporeal punishment
nor fine, let them class it with one of the five cases of inadvertence
or mistake, and forgive it. Now, in settling the five cases of inad
vertence or mistake, there are evils to be guarded against, namely,
the influence of power, fraud, female solicitation, bribery, and pri
vate relationship. Any one of these evils should be held equally as
bad as the crime which it seeks to bring under the category of the
five cases of inadvertence or mistake, and should be punished
accordingly.
"When you have any doubts as to the existence of the crime,
then you should not inflict either corporeal punishment or fine, but
should acquit the prisoner. Even when you have closely examined
the evidence and have taken testimony, so as to remove any reason
able doubt, yet you must not make a hasty conclusion, but form a
judgment from studying the appearance of the criminal. Any
prosecution which is not substantiated by evidence should be dis
missed immediately. In everything stand in awe of the dread
majesty of God.
"When offenders offer excuses, though not altogether free from
guilt, then exercise leniency. In such a case, the crime otherwise
punishable with branding should be commuted to a fine of 6o0
ounces of copper; in like manner, the slitting of the nose should be
commuted to a fine of double the said amount, the cutting off of
the feet to 3o0o ounces, castration to 36oo ounces, and death pen

alty to 60oo ounces. Of course, in all these cases, the guilt must be
actually proved.
"Now, of crimes that come under the fine of 6oo ounces, there are,
in all, one thousand; of 12o0 ounces, also one thousand; of 3ooo,
altogether five hundred; of 36oo, in all, three hundred, and of 6ooo,
two hundred.
"With regard to corporeal punishments, the total number of
crimes that are subject to them amount to three thousand. Let the
punishment be in just proportion to the offense, neither insufficient
nor excessive. Admit no presumptuous, disorderly, or profane argu
ments. Enforce no laws that have already fallen into disuse.17 Use
your wise discretion within the bounds of laws in force.
"In case the crime should fall within the category of some higher
punishment, if there should be mitigating circumstances, apply to it
the next lower grade of punishment. Likewise, in case the crime
should fall within the category of some lower punishment, if there
should be aggravating circumstances, apply to it the next higher.
The imposition of fines is also to be determined after a full consid
eration of all the circumstances. Furthermore, punishments and
fines should vary in their severity according to the character of a
particular period. This seeming irregularity is the very means for
securing true equality,18 the eternal principles of justice, the spirit
of law, being preserved all through the necessary changes.
"Bear this in mind also, that although the effect of fines is not so
severe as corporeal punishments, yet it does produce extreme dis
tress. On no account let persons of deceitful tongues try any cases.
The judgments of honest men alone can attain justice. Examine
carefully where there are discrepancies in the pleadings. Do not
be prejudiced; the view that you are resolved not to follow may
" A formal recognition by the emperor of the abrogation of law by cus
tomary disuse.
"The literal translation of this clause is, "Agreement exists in disagree
ment," or, "There is unity in diversity," the logic being that, as reason is the
soul of law, therefore whenever the reason changes the law should also
change. Every change may be a sign of irregularity on its face, but when
we inquire after the cause we find the self-same spirit at work. In this pas
sage, therefore, there is a subconscious suggestion of the modern sociological
jurisprudence. Compare Dean Pound's remarks on sociological interpreta
tion, on pp. 225-6 in Science of Legal Method, The Modern Legal Ph1loso
phy Ser1es.
MICHIGAN LAW REVIEW

turn out to be right.19 Decide the cases with compassion and rev
erence ; cite and interpret the Code so as to fit the issues, and settle
1hem by striving for the proper mean. When the case is thus con
cluded, all parties will acknowledge the justice of the sentence, and
when it is reported to the sovereign, he will do the same. Your
reports must be full and complete, setting forth all the necessary
facts ; and if the criminal has committed two crimes, that fact should
be recorded, though the punishment should always be imposed on
the graver crime alone."
The King concluded : ",* * * Ye judges and princes, I speak with
much fear, I meditate with much reverence, in regard to punish
ments, for the one great end of penal law is to promote virtue. We
rulers of the people are responsible to Heaven for our injustice.
Be impartial, particularly in regard to unsubstantiated charges;20
and in regulating the people, the proper method is to hear criminal
cases before two or more witnesses. Never take advantage of law
suits to enrich yourselves. Gain so acquired is but a heaping up of
guilt, and will be punished by the condemnation of many. Stand
always in awe of the punishment of God. God deals with men
impartially, but men ruin themselves by evil-doing. If the punish
ments of Heaven were not severe for the corrupt officers, nowhere
under the sky would the people have good government. * * *"
Sect1on IIRead1ngs from the L1 K1 : A Collect1on of
Customary Rules of the Three Dynast1es21
1. From the Chapter on the Royal Regulations of the Three
Dynasties.
It was the duty of a criminal officer to determine the punishments
by consulting and interpreting clearly the Penal Code, when he pre
sided in the trial of a criminal case. After he had made a decision,
he must refer it first to other officers, secondly to the clerks, and
"This reminds us of Sir Philip Sidney's celebrated passage, "In forming
a judgment, lay your hearts void of fore-taken opinions; else whatsoever is
done or said will be measured by a wrong rule; like them who have the
jaundice, to whom everything appeareth yellow. See Au.1bone, Prose
Quotat1ons, p. 584.
w That is, charges not supported by the testimony of other witnesses.
" Li Ki was compiled during the second century B. C. The Three Dynas
ties lasted from 22o5 B. C. to 256 B. C. See Legge's L1 K1 in Vol. XVII of
5"
lastly to the people, in order to get their opinions as to its correct

ness. Though a party had clearly the intention to commit a crime,
if there were no evidence of any overt act, the charge should be dis
missed. The punishments should be as light as was consistent with
the laws, and the justification offered by the prisoner should be
taken and construed so as to excuse his crime as far as possible.
Every judgment was required to conform to heavenly justice. Facts
must be proved before the judge could base his decision upon them ;
and in hearing any criminal case, he should take into full considera
tion filial duty and loyalty which might have affected the defendant's
acts, thus making allowances for all human impulses.22 He should
carefully differentiate grave offenses from light ones, and discrimi
nate with an unbiased mind the various phases and degrees of the
criminal intent. In other words, he should strive to his utmost to
fathom and understand the true situation of each case and to give
every man his due, to the full satisfaction of all parties concerned.
In case a criminal charge appeared to be doubtful, the judge must
submit the case to the people at large for the investigation of the
facts ;23 and in case the latter could not ascertain them, the prisoner
should be acquitted. Furthermore, the judge was to examine all
the previous decisions on cases similar to the one before him, and
base his judgment upon principles evolved from a deliberate com
parison between them. The case having thus been decided, it was
the duty of the clerk to make full report to the director of the dis
trict, who should review the decision and report it to the appellate
judge, who was required to hear it in the outer court (in the presMiiller's Sacked Books of the East, pp. 92, 14o, 215, 235-237; also S. Couvreur's L1 K1 avec une Double Traduct1on en Franca1s et en Lat1n, Vol.
I, pp. 56, 147-148, 274-275, 3o4-3o5. The following extracts are translated
from "Kw'e1 P1h L1 K1," (1) in vol. 3, pp. 27-29; (2) in vol. 3, pp. 7-8; (3a)
in vol. 1, p. 37; (3b) in vol. 2, p. 23. Kw'e1 P1h L1 K1 was printed by Zan
Chen Tang Printing Shop, Peking, China, in the year 1878. It is an
authorized edition consisting of 1o volumes, and can be bought at almost all
book-stores in China. It is also to be found in the University of Michigan
Library.
"Law is made for man, not man for law; so that a wise legislator or
judge should always bear in mind that he is dealing with human beings who
have human affections, and not with animals which simply obey the dictates
of natural instincts.
"Here we find some traces of a jury system.
512
MICHIGAN LAW REVIEW
ence of all the important officers and representatives of the nobility),

and then report the case to the king himself. The king, as a rule,
ordered the three ducal ministers to sit with the appellate judge and
the director so as to form a joint court. After the decision of the
joint court had been reported to the king, then, in the absence of
the three excuses (ignorance, mistake, and forget fulness), he
decided upon the punishment.
In the imposition of punishments and fines, even the slightest
offenses were not forgiven. The penal laws may be compared to
the separate parts of a body ; the body is complete, and its parts are
mutually related so that not a single cell can be hurt without at the
same time injuring the whole body. Such considerations ought to
make a wise man careful in applying the laws.
2. From the Same Chapter.
Ranks of office were conferred in the Imperial Court, in the pres
ence of other officers, the latter concurring jointly in the act.
Punishments were inflicted in the market-place, the people as a
whole thus participating in casting out the criminals. Consequently,
anyone who had been exposed to the public censure by being thus
punished, found himself an outcast from the community; for no
one, great or small, was disposed to receive such a disgraced person
into his clan. The good citizens, who should happen to meet the
condemned criminal on the road, would never communicate with
him for fear of being defiled. He was practically a homeless wan
derer, a friendless man, drifting from one place to another, deprived
of all protection and benefits from the government.24
3. Extracts from Different Parts of the Book, Concerning
Revenge.
A. A son must not live under the same sky with the murderer
of his father ; he must seek to fight with him until either he or his
enemy should be killed. If his brother has been murdered, one should
always carry arms along with him ; so that in case he met the enemy,
he might not lose the opportunity of executing vengeance upon him.
One should not stay in the same state with the murderer of a friend.
B. Tse Hsia asked Confucius concerning revenge. Confucius
" In primitive society there was no greater punishment than that of being
abandoned to one's self.
513
said: "When a parent has been murdered, the son should be alert
even in the nightsleeping on the thorns, with his shield for a pillow.
He should refrain from taking office in any state, lest there be a
conflict between public and private duties. In short, he should not
live in the same world with the enemy; if he happened to meet him
in the market-place or even in court, he should fight with him with
out delay. When his brother has been murdered, one may hold
office, but not in the state where the murderer has his domicile. In
case he is sent on a mission by his ruler to the state in which the
enemy lives, he should not fight with him even if he should meet
him there. When his paternal cousin in the first degree has been
murdered, one should not take the initiative in the avenging, though
he should render his assistance to the proper avenger of blood."25
Sect1on IIIRead1ngs from Lao-Tsze's2B Treat1se on the Law
of Nature and Pract1cal Ut1l1ty27
1. Adaptation to Change.
That system of law which gives full play to the inarticulate dic
tates of nature is most conducive to the people's welfare. Laws that
are over specific and inflexible often result in injustice.28 * * * What
* These two extracts show that in the time of Confucius (fifth century
B. C.) blood-feud still existed side by side with the proper tribunal, and that
it was sanctioned by the then current sense of morality.
MA great philosopher and religious teacher, who flourished during the
sixth century B. C.
* This is commonly translated as the Canon of Reason and Virtue. The
translation here given seems appropriate to my present article. The two fol
lowing extracts are translated from "Lao Tze Tao Teh K1ng," Chapters 58
and 74, respectively. It is included in the "Peh Tze Chuen Shu," or the
"Hundred Ph1losophers' Complete Works," published by Sau Yeh San
Won Book Co., Shanghai, China.
For a more literal translation, see Legge's Text of Tao1sm, in Vol.
XXXIX of Miiller's Sacred Books of the East, pp. 1o1-1o2, 117; also Carus's
Lao-Tze Tao-Teh-K1ng, pp. 126-127, 134. But it should be remembered that
a literal translation of the original wording and a faithful representation ot
the original meaning are two different things, and I have chosen the latter.
" Lao-Tzse was for simplicity of laws. The "inarticulate dictates of
nature" corresponds to Burke's "plain good intention" in his famous passage,
"Refined policy ever has been the parent of confusion, and ever will be so
as long as the world endures. Plain good intention, which is as easily dis
MICHIGAN LAW REVIEW

was once regarded as normal may be abnormal now, and what was
good in the eyes of the ancients may appear preposterous in the
modern light. This has from time immemorial bewildered the peo
ple. Therefore the policy of a wise ruler is to be firm but not
unyielding; he should hold to his ideal, but not in such a way as to
hurt the people; he should enforce the laws only within the bounds
of natural justice. * * *
2. What is Wrong with the Law.
Under bad laws the people's living conditions have already been
made intolerable, so that life and death are but neighbors, and the
people neither dread the one nor cherish the other. Such being the
case, how can they be restrained from crimes by fear of capital pun
ishment ? In order to make the people afraid of death, the govern
ment must first of all make life safe and sweet. Then if they be so
daring as to commit crimes, they will be put to death justly ; that is
to say, in that case, the death penalty is sanctioned by justice and
reason. Now, justice and reason are the only legitimate judges and
executioners ;28 and therefore for a ruler to substitute his caprice in
place of justice and reason is usurping the function of the law of
nature and is in fact condemning himself.
Sect1on IVRead1ngs from Confuc1an Analects50
1. Confucius said: "If a ruler, in regulating and controlling his
people, lays emphasis upon laws and resorts to punishments for their
violations, the people will strive to live up only to the bare requirecovered at the first view as fraud is surely detected at last, is of no mean
force in the government of mankind." This explains the reason for the fact
that when a state is most corrupt then the laws are most numerous.
" Shakespeare had probably the same thing in mind when he wrote, "And
they (judgment and reason) have been grandjurymen since before Noah was
a sailor"Twelfth Night, Act 3, Scene 4.
" The five following extracts are translated from "Luen Yuen" or "Con
fuc1an Analects," (1) in vol. 1, bk. 2, p. 8; (2) in vol. 2, bk. 12, p. 17; (3)
in vol. 2, bk. 2o, pp. 8-9; (4) in vol. 2, bk. 13, p. 6; (5) in vol. 2, bk. 19, pp.
4-5. It was printed by Zari Chen Tang Printing Shop, Peking, China, in the
year 1878. It is an authorized edition, consisting of two volumes and divided
into twenty books ; it is sold at nearly every book-store in China, and is also to
be found in the University of Michigan Library. Compare Legge's Confuc1an
Analects, Bk. II, Chap. 3; Bk. XII, Chap. 13; Bk. XX, Chap. 2; Bk. XIII,
515
ments of the law ; they will be utterly destitute of the sense of per
sonal honor. Direct them to the practice of virtue, and regulate
them through the medium of moral discipline, and they will natur
ally have the sense of personal honor, and will at the same time be
orderly in their conduct."
2. Confucius said: "In hearing and deciding cases which have
already arisen, I am not a bit better than other judges. But I con
sider it the paramount function of a judge to see to it that under
his jurisdiction there be no occasions for going to law."
3. Tsze-chang asked Confucius, saying: "How should a man
qualify himself for a public office?" The latter replied: "He should
know how to exercise the five virtues, and how to avoid the four
vices." * * * Tsze-chang said: "What are the four vices?" The
master answered him, saying: "To punish the people without first
educating them; this is called tyranny. To require of the people to
conform to laws without first bringing them to their notice ; this is
called violence. To punish of a sudden the breaches of those ordi
nances or laws which the people have been induced to believe have
already fallen into disuse by reason of their ruler's laches in exe
cuting them ; this is oppression. To deal with the people in a spirit
of bargain-making so as to stick to the exact letter of the laws with
out looking for justice and mercy; this I hold to be a mechanical
administration of the law."31
4. The Duke of Sheh said to Confucius: "In my country there is
an honest man who, when his father stole a sheep, informed the pub
lic authority of the fact." Confucius replied: "Well, in my counChap. 18; Bk. XIX, Chap. 19. Confucius was an advocate of government
by personal example, believing that the fickle populace changed with the
prince, who was the parent of all. In patriarchal government the offices of
king and priest being combined in one person, Confucius confused ethics
with law. He thought, with Seneca, "What narrow innocence it is to be
good only according to law!" and finally reached the conclusion that it was
better for the prince to keep the people, his children, to their duty by a
sense of honor and by moral rules rather than by law. This marks the
stage of confusion of law and morals.
" This seems to say, in the language of Mr. Justice Holmes, "General
propositions do not decide concrete cases. The decision will depend on a
judgment or intuition more subtle than any articulate major premise." Lochk1er v. New York, 198 U. S. 76 ; see Professor Drake's article on "The Socio
logical Interpretation of Law," M1ch. Law Rev1ew, Vol. XVI, No. 8.
MICHIGAN LAW REVIEW

try, an honest man would act differently. True honesty requires the
father and son to refrain from disclosing each other's misconduct."^
5. Having been appointed to be chief criminal judge in the state
of Mang, Yang Foo came to the philosopher, Tsang, to ask for a
guiding principle. The latter said to him : "The hearts of the people
have long been detached from their government on account of the
fact that the rulers have failed to entertain the proper attitude toward
them. My counsel to you is that, in hearing a criminal case, when
you have found out the truth of the accusation, be grieved for and
pity the criminal, and by no means rejoice at your own ability in
discerning his guilt."
Sect1on VRead1ngs from the Pos1t1v1st School Dur1ng
the Epoch of the Contend1ng States33
1. Shang Iang on the Supremacy of Law.3*
A country is governed through three instrumentalities, namely,
(1) laws, (2) the certainty that the laws will be enforced, and (3)
the power to carry them into effect. The administration of law rests
with the king and his ministers, and in order to establish the supre
macy of law in the eyes of the people it is their joint duty to apply
it strictly in accordance with its letter and spirit. The king, how"His theory is that domestic affections are the surest basis of all good
government.
" From the fourth century B. C. to the middle of the third century R. C.
During this period the power of the king was on the decline, and the feudal
lords were struggling for supremacy. Prior to this there had been but one
king and one state; now there came to be numerous independent kings and
states. As was natural, nationalism began to be felt, which had had no place
previously in a world-state. With nationalism came "lex." The king of
each state, wishing to compete with every other, laid much emphasis upon
agriculture and war, for the efficient management of which a great deal had
to depend on positive law and coercive authority behind it. Hence, the
Positivist School was a natural product of the age.
" Shang Iang was the Prime Minister under Duke Hsiao of Ch'in. He
may be called the Chinese Draco, tolerating nothing that was against the
laws of the state; and it may be said that in his lexicon there was no such
word as mercy. The following extract is a translation of his essay on
"Maintenance of Authority," forming the Chapter XIV of the "Shang
Chu1n Shu," which is included in the "Peh Tze Chuen Shu" (see note 27).
517
ever, is alone the custodian of the executive power, he being the sole
head of the whole nation. * * *
It is too often the case that unskilful rulers, not being able to
appreciate the importance of laws, rely upon personal judgment for
handling governmental affairs, and as a natural consequence, their
country falls into terrible disorder and confusion. The wise kings
of old established standard weights and measures, which we are
still using because of their accuracy. Now, suppose that we should
dispense with these altogether, and try to tell the weight of things
by balancing them in our untrustworthy hands, or to judge the
length of a piece of cloth by our unreliable eyes, how can we agree
one with another as to the precise amount? It is exactly for the
same reason that we cannot do away with laws, for laws are fixed
standards of justice, without which as guides our capricious and
ever-changing minds are hardly to be trusted any more than our
hands or eyes with reference to weights or measures. Of course,
I am not to be understood as denying that it would be best of all
for a nation to be governed by a perfectly wise and unselfish ruler,
such as Yao, unfettered by any laws whatever, but the fact remains
that not every generation produces a Yao, and that rather than wait
for a wise governor, and in the meanwhile suffer all the evils that
may be expected from a commonplace ruler who is neither wise nor
yet is restrained by laws, I am certainly content with a government
by fixed laws in spite of all its defects and disadvantages. Since,
therefore, laws are absolutely necessary in the community as it exists
today, all people who behave themselves within legal bounds are to
be properly protected and rewarded by the government, while those
who boldly set the laws at defiance should be punished without
mercy, as being a public nuisance. When the system of rewards
and punishments is well settled and promulgated, the people will
find in it an unfailing guide as to what is legal and what is illegal.
and there will be little or no occasion for disputes among the people.
* * *
The king, though he is the ruler of the whole nation, has no right
to treat his power as a personal monopoly ; on the contrary, he
reigns for the sake of the national welfare, and this is the reason
why the sage Emperors Yao and Shun, instead of transmitting; the
throne to their sons, appointed wise and able men to succeed them.
They well knew that the selfish love between father and son should
518
MICHIGAN LAW REVIEW
give way to consideration of the general well-being, which is the

higher form of love ; and this is the whole secret of their successful
public careers. On the other hand, history bears full record of
unscrupulous rulers who took the laws, as it were, into their own
hands so as to usurp all national rights and fatten themselves upon
the flesh and blood of the people. After all, what happened? As
shadow follows substance, even so does the overthrow of the throne
follow oppression. It is sufficiently clear, then, that unselfishness
in a ruler conduces to his personal honor and to the national security,
whilst selfishness works the opposite results. Since justice is the
consummation of unselfishness, and since laws are the very means
for bringing about justice, an unselfish ruler must necessarily be
one who maintains the supremacy of the laws.
Another disadvantage of placing transitory opinions before laws
is to be found in the fact that it gives rise to deceptive and oppres
sive practices on the part of the magistrates,taking for granted
that the king himself be a proper man. Without a common standard
of justice, the magistrates could easily and with impunity cheat or
threaten the people under their jurisdiction and knit for themselves,
so to speak, networks of law of their own, to catch innocent victims
in a whirlpool of tricks. * * * All these mischiefs can be ended only
through maintaining the supremacy of law, and discarding all per
sonal judgment.
2. Shuen Too on the Advantage of Definiteness of Law.
Law is designed to regulate the activities of a nation, and it is a
body of uniform and impartial rules of civil conduct. Within the
definite limits of law there is no room for the cunning and wicked
to play court tricks, nor can any subtle tongue confuse right and
wrong. Let us by all means restrain our passions within the limits
of law. Let selfish affections vanish before the majesty of law.
Our joy and anger may be repressed, but law should never be vio" Shuen Tao was a contemporary of Shang Iang; his views also reflect
his environment. This marks the second age in the legal evolutioni. e.,
the anethical age. The following extract is translated from Zia Wu-liang's
"Chun Kuo Ch1h Hs1o Sze," or "Read1ngs 1n the Ch1nese Ph1losophy,"
Part I, Division II, Chapter 3, pp. 73-74; published by the Chun Hua Book
Co., Shanghai, China.
5'9
lated. Our beloved ones may be punished and our families may be
extinguished, but justice should never be denied its full play. Even
if a legal system be not as perfect as it ought to be, after all it is
much better than lawlessness, for laws tend more or less to unify the
minds of the people. Take, for instance, the common practice of
casting lots for the division of property and for the choice of cattle.
The casting of lots does not necessarily bring about the ideal justice :
nevertheless, it does a valuable service by way of settling the claims
of the parties concerned, inasmuch as it helps the one who gets the
better property to enjoy it free from any clouds upon his title, and
makes the other who gets the inferior portion to rest contented with
his lot. As the standard weight is designed to establish fair dealing,
and as the written instrument is used for securing the faithful per
formance of a promise, so are statutes and sanctioned customs
intended to work out justice and equity.
Sect1on VIRead1ngs from the L1terature of the Han
Dynasty10
1. The Tripartite Compact of Emperor Kao."
My Venerable Seniors !
I know too well how long you, my fellow-countrymen, have suf
fered untold hardships under the harassing laws of the preceding
dynasty, by which the criticizing of government was punished with
the extermination of one's whole family, and even talking on the
streets was prohibited under pain of decapitation. You all know
that there was a mutual understanding between myself and other
leaders to the effect that whosoever first entered the capital should
ascend to the throne. Having fulfilled the condition precedent, I
have been made King as a matter of right. In your presence, I do
solemnly make the tripartite compact with all my people, to-wit, ( 1 )
that the death penalty shall be imposed for murder, (2) that appro
priate punishments shall be imposed for injuries to the person, and
" Han lasted from 2o6 B. C. to 277 A. D.
" Emperor Kao reigned 2o6-195 B. C. The following extract is trans
lated from the "L1fe of Han Kao Chu," in Emperor Kien Lung's Edition
of Sze Ma Chien's "Sze Ch1," or "H1stor1cal Records," bk. 8. p. 7. This
book is widely read in China, and is procurable at most of the Chinese book
stores.
MICHIGAN LAW REVIEW

(3) that appropriate punishments shall be imposed fo1 theft and
robbery. The laws of the Ch'in Dynasty are hereby repealed.
I pledge myself to abolish public evils; I never allow myself to
indulge in violence and oppression. Have confidence in me, my
elders.88
2. Emperor Wen's99 Mandate Abolishing Mutual Responsibility
of Family Members for the Crimes of Each Other.*0
Law is nothing but administrative justice. It is designed to pre
vent violence so as to protect the innocent. Now, it does not seem
to us to be just and reasonable that, in addition to punishing the
" Notice how safety of life and person and security of property are guar
anteed. This charter compares favorably with Magna Charta of King John,
especially in view of the fact that it was voluntarily given. We must not
ignore the truth, however, that if we look at it not from the standpoint of
the king but from the standpoint of a whole nation, a constitution has an
infinitely greater value when it is wrung from the government at the sword's
point than when it is given as a matter of grace. In the former case, the
people take the initiative, and therefore they will guard their rights with
jealousy and alertness, and the constitution, though it may be unwritten, is
cherished and preserved alive in the hands of the people ; while in the latter
case, where the people are not intelligent enough to appreciate the importance
of a constitution, it will become a dead letter, even though it is a written one.
For these last two years, the students in China, having seen this great truth,
have started a constitutional campaign in order to bring home to the masses
a feeling for the necessity of a permanent constitution, so that they may
take the initiative in the solution of the impending constitutional problems;
and the students are doing their work so smoothly and energetically that it
is hoped the celestial goal of union and peace, with an intelligent public
opinion as the goal-keeper, is not far from attainment. In law as in eco
nomics, demand must exist before supply.
"Emperor Wen reigned 179-157 B. C. He was one of the most enlight
ened, humane, and pious emperors, of whom the world can well be proud.
See Parker's article on "The Principles of Chinese Law and Equity," Law
Quarterly Rev1ew, XXII, 2o1-2o2. It is advisable to read his whole article.
The three following extracts are translated from the "L1fe of Han Wen
Tl" in the Sze Ch1 (see note 37), bk. 1o, pp. 3, 4-5, 6-7. respectively.
" Mutual responsibility was coeval with blood-feuds. As has been
observed the idea of revenge was peculiarly retaliatory. Father for father,
child for child, wife for wife, was the original practice; later, the precise
persona was not demanded, and the equation became "family member for
family member." In the Epoch of the Contending States, however, bloodfeuds had disappeared on the advent of nationalism, but mutual responsibility
was retained by positive law for mere political purposes, among which was
521
guilty, their innocent parents and brothers should also be involved

in punishments, and their unfortunate wives and children condemned
to slavery. This unjust rule finds no place in our mind, and it is
hereby abrogated.
3. Emperor Wen's Charter of Liberty of Speech.
In the good old times, the rulers used to plant in each public mar
ket a flag, called "the flag of remonstrances." and they also hung
up a board of wood, called "the board of criticisms." These proved
very serviceable in helping to attain a proper method of government,
and in removing the bar between the king and his subjects. Now,
our law punishes persons for criticizing policies of our government
and for spreading heresies.41 This causes the ministers and the
people to refrain from pouring out their whole hearts to us. And
now, how can we know our faults and mistakes, being deprived of
such a valuable source of instruction? For the above reasons, we
hereby repeal the said statute.
4. Punishments by Mutilation Abolished.
A prefect of T'ai Ch'ang by the name of Hsin U-Yi was found
guilty of a crime punishable by mutilation. His youngest daughter,
Di-yong, filed a petition with the Emperor, containing the following
allegations: "Your maid-servant's father has been a public official
of pure character and good reputation. Now, he has transgressed
the law and is subject to punishment. Deep melancholy seizes upon
my heart when I think that just as the dead cannot be revived, a
person mutilated can no longer be made whole. Even though he
desires to mend his ways and begin a new career, he is handicapped
by physical deformities. I, your maid-servant, humbly pray that
I may be allowed to give myself into a perpetual servitude in the
Imperial Court as a substitute for my poor father's punishment."
The Emperor, sympathizing with the general purpose of her prayer,
issued a mandate abolishing all punishments by mutilation. The
mandate reads as follows :
the suppression of rebellion. Emperor Wen, believing that justice alone
could satisfy the minds of the people, could see no reason why mutual
responsibility should not be abolished. Hence the following mandate.
" Doctrines contrary to accepted traditions, especially Confucianism, had
been regarded as heresies. This charter, therefore, gives freedom of religion
as well as that of speech.
522
MICHIGAN LAW RHVIEW
We have heard that, under the propitious reign of the ancient

Emperor of Yuen, there were no other punishments than painting
the criminal's clothing and cap, and making special marks on his
dress.42 Lenient though the law was, the people did not transgress
it. Was this not because the sage Emperor was always mindful of
the people's welfare?*3 Now, our law provides no less than three
corporeal punishments by mutilation ; yet crimes still prevail. Who
is to blame? We are quite conscious that the blame should be laid
on our person, having been lacking in personal virtue and negligent
in enlightening and influencing the people. We feel the pricking
of our conscience. When the people are not properly educated and
directed, the natural consequence is that the more ignorant ones fall
into crimes. The Book of Poetry says, "Oh ! Our lovable king, the
parent of all." Now, our poor children, the people, offend in igno
rance, and they are overtaken by punishments almost unawares.
Thus they are deprived of the opportunity of self-reformation, being
mutilated for life before they understand what is good. Pity at
once fills our heart, as we meditate upon the terrible and cruel pen
alties of branding the skin and cutting off the limbs. Do not these
unnatural practices militate against the original idea that an emperor
is the common parent of his people ? For the above reasons, all cor
poreal punishments by mutilation are hereby abolished.44
5. Emperor Ching's Instructions to Judicial Officers.
Upon the administration of justice depends the safely of the lives
of people. The dead can never come back to life. These considera
tions have always been a source of anxiety to us.
"A criminal thus marked became practically a taboo. This statement
seems to corroborate the belief commonly held by the students of compara
tive law that outlawry was the capital punishment of a rude age.
** The logic was that when an emperor was of a merciful turn of mind
his influence would affect the people's minds so that there would be scarcely
any occasion for injuring one another or offending against the public author
ities.
** It is worthy of note that with Emperor Wen the idea of reforming the
criminal came to be predominant in punishment.
** Emperor Ching reigned from 156 to 141 B. C. The following extract
is translated from Wu Ch'u Ts'ai's "Kang Kan Y1 Cm Luh," or "S1mple
Read1ngs 1n Ch1nese H1story," bk. 12, p. 7; published by the Commercial
Press, Shanghai, China.
523
You judges are hereby instructed that in cases where you have
doubts as to the application of statutes; or where the statutes are
plain and certain, and you have no doubt but that they should govern
the matter before you, but yet your minds are not satisfied as to
their intrinsic justice when applied to the particular case ; you should
refer them to us for further deliberations.49
6. From Lu Wen-Shu's Memorial Remonstrating Against the
Use of Torture in Trials."
May it please your Majesty:
* * * Man enjoys the sweets of life only when his mind is undis
turbed: when he is troubled, he prefers death. Under the pain of
torture, what is there that cannot be extorted from the lips of the
prisoner? When he is unable to bear the suffering he is oftener
than not driven to make a false confession in order to secure tem
porary relief. Taking advantage of the situation, an unprincipled
magistrate would suggest to him what he wants him to say, shaping
his words into whatever form would incriminate him. * * * This
abuse must be abolished before peace and happiness will reign in
our empire.48
7. Emperor Suan's Mandate Abolishing the Crime of Hiding
One's Guilty Parent, etc.*9
The affection between father and son, and the love between hus
band and wife are given to human beings by heaven ; for one to try
to preserve the other at the risk of his own life in times of misfor
tune is simply an indication of one's inborn nature and an evidence
" One cannot but be astonished to see how carefully possible miscarriages
of justice are guarded against. The method of remedying them is twofold :
first for the judge to pronounce the statutes unjust for the particular case
before him, and then for the emperor to administer justice free from the fet
ters of any statutes.
" Lu Wen-shu lived in the first century B. C. The following extract is
translated from the "Kang Kan Y1 Ch1 Luh" (see note 45), bk. 16, pp. 1o-11.
" The remonstrance was not accepted. In fact, until the establishment
of the present republic, torture had always been employed in trials. From
this memorial, however, we see that confession had already been regarded
as necessary to conviction.
" Emperor Suan reigned 73-49 B. C. The following extract is translated
from Yao Nai's "Ku Wen Dze Lue1 Ch'uen," or "Anthology of Ch1nese
Prose," vol. IX, p. 3 ; published by the Wen Ming Book Co., Shanghai, China.
524
MICHIGAN LAW REVIEW
of inner tenderness and noble impulses. How can we enforce laws

at the expense of virtue? It is therefore decreed that hereafter a
son shall not be punished when he comes to the court confessing
that he has hidden his guilty parent, nor shall a wife be punished
for hiding her husband, nor shall a grandson be punished for hiding
his grandparent. Further, in case of a parent hiding his son, a hus
band hiding his wife, or a grandparent hiding his grandson, if the
hiding is punishable by death, the magistrate shall refer it to us
through the Minister of Justice.
8. Emperor Yuen's Instructions upon the Revision of Laws.
The objects of laws are the suppression of violence and the pro
tection of the helpless. They should always be simple and clear, so
that the people may easily know what is wrong and how to avoid it.
Now, our statutes and ordinances are so complex and multifarious
that even you legislators are not able to classify and clarify them ;
and yet you seem to say that ignorance of law excuses nobody ;
does it not require too much of the people? Laws, when they are
too complicated, do not conduce to justice. You are hereby instructed
to discuss the existing statutes, article by article, in order to repeal
all unnecessary laws and to lighten all excessive penalties, so that
the people may have a convenient and safe guide for their conduct.
9. Hsio Von-tse's Memorial Protesting Against the Resolution
of Allowing Criminals to Pay Grain in Commutation of Their
Regular Punishments.*1
* * * Therefore, the difference between Yao and Ch'ih is that
the former led the people to cherish justice, while the latter led
the people to indulge in inordinate desire of gain. Now, if we allow
criminals to pay grain as a substitute for their regular punishments,
the natural consequence is that the rich are saved to the exclusion
of the poor. Is it possible that the rich and the poor should suffer
"Ibid., vol. IX, p. 4. Emperor Yuan reigned 48-33 B. C. This instruc
tion represents the thought that public convenience and safety are the para
mount objects of law, and that, to quote from Sir Philip Sidney, "laws are
rot made like lime-twigs or nets, to catch everything that toucheth them,
but rather sea-marks, to guide from shipwreck the ignorant passenger."
"Hsio Von-tze was the Prime Minister under Emperor Yuan. Ibid.,
vol. IV, p. 4.
5*5
different punishments under one and the same law without destroy
ing the fabric of the law?
Another disadvantage is that when the father of a poor family
is convicted, his sons, knowing that money can save him from pun
ishment, would naturally try their utmost to raise the requisite fund
by all sorts of means, whether honorable or dishonorable. Their
family would be ruined by the incurring of debts, though one life
is saved. * * * It would certainly demoralize the people, for it
teaches them that justice can be bought with money.92
1o. Pan Koo on the Origin of Government and Law.
Man bears the image of God. As an exalted creature, he natur
ally inherits the five moral qualities from his Creator, namely, love,
justice, morality, intelligence, and faithfulness. It is to these very
qualities that he owes his supremacy over other creatures. On
the other hand, he is not provided with claws and teeth strong
enough to struggle with the lower animals for his daily sustenance
and his feet are not sufficiently swift to carry him out of imminent
dangers Moreover, man is born naked, having neither fur nor
feather to keep his body from exposure to cold and heat. In order
to subdue the earth and have dominion over other living beings,
he is obliged to resort to his intellectual faculties rather than to
his physical strength, and this is what makes him a rational being.
The natural endowment of brotherly love in all men helps them
in forming society, without which they would not he able to con
quer the natural world and would soon die for lack of provisions.
In primitive society, however, troubles now and then arose on
account of one or another sort of disagreement between the mem
bers themselves concerning their conflicting interests. This fact
"One of the many bad features of the system of pecuniary mulcts was
the introduction of a fiscal element into the administration of criminal law."
Pollock and Ma1tland's H1story of Engl1sh Law, Vol. II, p. 451.
"An imperial historian, writing during the first century A. D. In juris
prudence, he may be regarded as representing the Historical School. In this
selection is found an attempt to trace the origin of law to its sources in
human nature. The prase "natural endowment of brotherly love" corre
sponds to the "appetitus socialis" of Grotius. The historian also essays to
justify the existence of law by necessity, and he maintains that punishment
must conform to humanity's need of punishment. The following extract is
translated from the "Pan Koo's H1story of Han, Abr1dged," published by
the Chun Hua Book Co., Shanghai, China.
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MICHIGAN LAW REVIEW
showed the necessity of having a ruler to govern them. The ruler,

however, adjusted the differences not so much by resorting to phys
ical power as by appealing to reason. He tried to pull up the very
root of the troubles by setting a good personal example to his fel
low men until his spirit of self-denial and self-sacrifice permeated
the minds of all the people so that there was a general triumph of
reason over passion. In the meantime, the people's conf1dence in
him was gradually established, and this very confidence is the foun
dation upon which kingship is built.
In the book of the Grand Model it is remarked that the king is
the common father and mother of his people and is the ruler over
all his territory. Now why do the philosophers, who are always
careful and accurate in classifying and defining things, speak of
the king as a father and mother of the people? What they mean
is that, as a parent loves and takes every care of his children, so
should a king love and care for his people. This is really the fun
damental principle underlying a royal government.
Love must be supported by reverence, and benevolence must be
backed up by majesty. The former is effected through the medium
of ritual, while the latter is accomplished by means of penal laws.
Sect1on VIIRead1ngs from the General Prov1s1ons of the
Annotated Code of the T'ang Dynasty"
1. Preliminary Observations.In the beginning, the three prin
cipal parts of the universe first came into their proper order, and
" The Annotated Code of Tang was promulgated in the year 63o A. D.,
under the reign of T'ai Tsung. It consists of twelve divisions, namely: (1)
General Provisions, (2) Provision for the Protection of the Emperor, (3)
Official Duties, (4) Enrolment of the People and Marriage, (5) Imperial
Stables and Treasury, (6) Independent Political Actions, (7) Theft and
Robbery, (8) Quarrels and Litigations, (9) Fraud and Deceit, (.1o) Mis
cellaneous Offenses, (11) Arrests, and (12) Trials. It is the earliest Chi
nese code that has come down to us in its original form ; and m it we find
an account of basic principles underlying the Chinese jurisprudence, espe
cially in the annotations, which corresponds to the responsa prudentium of
the Roman law. In fact, to some important provisions are appended hypo
thetical questions and positive answers, in addition to the annotations. For
purposes of this article, I have translated only some of the general provisions
in division (1).
" By the three principal parts of universe are meant Heaven, Earth, and
Man.
527
then the whole cosmos gradually took form. Man alone being
endowed with the spiritual essence and the rational will, was des
tined to be the head of all creatures. From time immemorial there
have always been among human beings rulers whose function it is
to regulate the people through the instrumentality of laws. There
are in all ages men who are foolish, base, and dominated by pas
sions, which tend to lead them into crimes ; such men are a danger
to the communityor at least an obstruction to the progress of
civilization. This fact fully explains the necessity of laws. It is
said, therefore, that laws aim at the cessation of punishments, and
that the death penalty is calculated to do away with homicides.
The proverb goes, "Spare the rod, spoil the child; relax the pun
ishment, ruin the people."10 Laws are simple or complex accord
ingly as the people of a particular period are tractable or ill-dis
posed. * * *
The Book of Changes says, "God manifested his law through
Nature, and this law the sage kings of old adopted." The king's
awful majesty corresponds to the thunder, his enlightened justice
corresponds to the lightning, and the death penalty was introduced
in imitation of the destructive force of the autumn frost." The
purposes of law are to warn the people to refrain from doing
wrong, to prevent crimes in their inception, to mete out to each
person whatever he deserves with even-handed justice, and finally
to secure full play to the all-embracing love and mercy. Punish
ments are resorted to only in case of necessity. * * *
Statutes are nothing else than the approved balancing of reason
and the positive rules of right conduct. According to the Book of
Changes, in administering public affairs and in legislation, it is to
be borne in mind that true justice consists in prohibiting what is
wrong. By the balancing of reason, the seriousness of crime is
" The literal translation is, "Punishments and fines cannot be relaxed in
a country any more than whips and birch-rods can be dispensed with in a
family."
" This thought is not at all peculiar to the Chinese mind. We have from
Froude, "Our human laws are but copies, more or less imperfect, of the eter
nal laws so far as we can read them," and from Shakespeare, "Merciful
heaven! Thou rather, with thy sharp and sulphurous belt, splitt'st the
unwedgeable and gnarled oak, than the soft myrtle."
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MICHIGAN LAW REVIEW
determined; in the statutes justice is embodied, the terms "statute"

and "law" signifying the same thing. * * *"
His Majesty the Emperor of our Great Empire of T'ang has
established the royal sway through his Divine Wisdom and his
remarkable popularity with the people. He takes delight in pro
moting the interests of his subjects and in reducing all destructive
agencies to a minimum, thus aiding the smooth workings of Nature.
The laws now codified and promulgated are for the most part declar
atory of the model precepts which the ancient sage kings left behind
them, arranged in a systematic manner so as to include both great
principles and technical details. * * *
The fundamental maxim is not to be overlooked, that the great
end of government is the promotion of virtue and social order, and
that laws are the means for attaining the end. The precepts of
morality are affirmative and advisory, whereas the rules of law are
negative and prohibitory; both are equally necessary to the wellordering of a nation, though each has its own separate functions."9
We have appended to the statutes our clear and exhaustive anno
tations, which are based upon ancient authorities and upon the
opinions of the two comparatively modern jurists, Hsiao and Kia.
In some places we have undertaken to trace rules of law to the
essential reason underlying them. In others, we have started with
general principles and deduced therefrom rules of law.90 All the
provisions in the Code are clear and unequivocal, and at the same
time flexible and broad enough to adjust themselves to reasonable
,
'
" Notice how "ius" and "lex" are combined. Compare Cicero's and
Blackstone's definitions of law.
" This is an attempt to reconcile the two extremes of "rule of morality
exclusive of law," on the one hand, and of "rule of law exclusive of moral
ity," on the other, the former being taken by Confucius, who condemned law
as demoralizing, and the latter by Shang Iang, who, instead of confining him
self to his own business as a law-reformer, went to the extent of denouncing
personal virtue (as contrasted with political virtue) as an obstacle in the
way of national well-being and power. This marks the beginning of the stage
of synthesis of law and morals.
"The literal translation of these two sentences is, "Along the streams
we set out in quest of the fountain ; and from twigs we reach to the leaves."
The former seems to be inductive, while the latter is deductive. To avoid
the double metaphors in such a short space, I have assumed to disregard the
original wording while preserving the real idea.
529
changes in the social conditions that may obtain in future genera

tions. Laws are to human conduct what the steelyard and balance
are to the weight of things and what the compass and square are
to the accuracy of drawing. O! How excellent the time-honored
Tripartite Compact;01 it is our purpose to make our laws conform
to the ideas enunciated in that admirable Charter, and to its char
acteristic uniformity.
2. The Five Categories of Punishment:
1.
2.
3.
4.
5.
Ch'ih, or flogging with the light rod.

Ch'ang, or flogging with the heavy rod.
T'u, or imprisonment at hard labor.
Liu, or banishment.
Sze, or death penalty.
1. Ch'ih has five degrees, namely, (1) ten blows, (2) twenty
blows, (3) thirty blows, (4) forty blows, and (5) fifty blows.
AnnotationsThe term Ch'ih means, literally, "scourging," and
figuratively, "shame." It is intended to punish and reform a petty
offender by stirring up the sense of shame and penitence in him.02
* * * It is said in the Book of History, the birch-rod was used as
a reformatory measure, and this original idea still holds good. In
the thirteenth year of the reign of Han Wen Ti, a prefect of T'ai
Ch'ang district, by name of Hsin U-Yi, was convicted of a crime
punishable by corporeal punishment by mutilation. His daughter
Di-Yong filed a petition with the Emperor, praying to give herself
into a perpetual servitude in the imperial court as a substitute for
her father's punishment. The Emperor, sympathizing with the
general purpose of her prayer, eventually abolished all these cor
poreal punishments, and introduced flogging as their substitute.
* * * Law is nothing but the image of justice; when the image is
once formed it is difficult to change it, and therefore a wise ruler
should be extremely careful in providing penalties. * * *
2. Ch'ang, or flogging with the heavy rod, has five degrees,
namely, (1) sixty blows, (2) seventy blows, (3) eighty blows, (4)
ninety blows, and (5) one hundred blows.
3. T'u, or imprisonment at hard labor, has the following five
" See ante, p. 519.
" Compare Locke's familiar passage, "If punishment reaches not the mind
and makes not the will supple, it hardens the offender."
MICHIGAN LAW REVIEW
53
degrees: (1) one year, (2) one year and half, (3) two years, (4)
two years and half, and (5) three years.
AnnotationsThe term T'u means servitude. * * * The prisoner
is confined in a dungeon, condemned to hard labor, and at the same
time is given moral lessons. * * * It had its origin in the Chow
Dynasty.
4. Liu, or banishment, has three degrees, namely, ( 1 ) two thou
sand li,8S (2) two thousand and five hundred li, and (3) three thou
sand li.
5. Sze, or death penalty, has two grades, i. e., (1) strangulation
and (2) decapitation.
3. The Ten Offenses of Marked Flagrance:
1. The attempt to overturn the government.
2. The attempt to destroy the imperial temples, tombs, or
palaces.
3. Adhering to national enemies.
4. Parricide.
5. Brutish cruelty ; e. g., murder of three or more persons
in one family, or murder by mutilation.
6. Sacrilege.
7. Impiety toward parents; e. g., abusing one's parents with
indecent words, or ill-treating them.
8. Family discords.
9. Gross unfaithfulness ; e. g.. murdering one's superior to
whom he owes loyalty, as in the case of master and ser
vant, teacher and pupil, guardian and ward, and husband
and wife.
1o. Incest.
AnnotationsAmong other crimes these ten crimes are espe
cially odious, because they set at naught the grand principles upon
which our government stands. * * *
" A li is about one-third of a mile.
531
4. The Eight Classes of Persons Given Special Consideration

when Convicted of or Involved in a Crime:'1*
1. Relations of the emperor through blood or marriage.
2. Persons who have been in public service for a consider
able time and have enjoyed the emperor's confidence.
3. Persons who are virtuous.
4. Persons who have unusual abilities.
5. Persons who have achieved illustrious merits in the national
cause.85
6. Persons of high rank.
7. Persons who have shown their zeal and assiduity in public
service.
8. Persons descended from an alien ancestor who was hon
ored by the founder of a dynasty as a guest.90
5. Laws with Regard to Crimes Committed by the Above Men
tioned Eight Classes.
If a person belonging to any of the eight classes shall be con
victed of a crime punishable by death, the judge shall make a report
to the emperor, setting forth the grounds of conviction and all nec
essary facts which entitle him to special consideration, and call a
meeting of the regular committee to pass upon the matter and inform
the emperor of its decision. In cases where crime is punishable by
banishment, imprisonment, or flogging, the prisoner shall suffer a
punishment by one degree less severe than an ordinary person under
like circumstances.
Provided that this statute shall not apply to the ten crimes of
marked flagrance.
"The law of mutual responsibility of family members, which had been
abrogated by Emperor Wen of Han, was revived under Tang for political
purposes, and it was not till the establishment of the present republic that
mutual responsibility breathed its last breath.
" A great deal can be said for this and the two preceding items. It is
worth our while to quote from Landor, "A wise and dispassionate legislator,
if any such should ever arise among men, will not condemn to death him
who has done or is likely to do more service than injury to society."
It was a usual practice for the founder of a dynasty to appoint, as a
matter of comity, a virtuous man belonging to the imperial family of the
superseded dynasty to be a lord over some territory.
532
MICHIGAN LAW REVIEW
6. Crimes by Men of Advanced Age, Minors, and Invalids."

All persons above the age of ninety and minors under the age of
seven shall be exempt from punishment even when they are found
guilty of a crime punishable by death.98
If they shall commit a crime under the direction of another, the
latter shall be responsible for the act. Any emolument derived
from the crime shall be returned to the proper owner under all cir
cumstances.
Annotations* * * If a person instructs a minor under seven to
assault his parents, he is not to be charged with the crime of assault
ing one's parents, but is only responsible for an ordinary assault,
the child being regarded simply as the instrument of the crime.
If a crime was committed when the criminal had not reached an
advanced age as heretofore prescribed, but the matter becomes
known after he has reached the age, still he shall be exempt from
punishment.
QuestionSuppose the criminal reach the prescribed age pend
ing the prosecution, shall he be exempt from punishment?
AnswerYes : the gist of the rule is that an old man of the pre
scribed age is not strong enough to bear the punishment, and there
fore it does not matter when he reached the age, if it is certain that
he has reached that age.
If the prisoner should reach a prescribed age during his term of
imprisonment, he shall be released.
If the minor committed a crime when under a prescribed age,
but the matter becomes known when he is above the age, he shall
be dealt with as if he were still under that age.80
" It may be said that the law of China is the law of mercy. Mercy is
consistent with every form of government, be it patriarchal or republican.
Though in a republic there is no father and all are equals, yet we must not
forget that mercy is inherent in brotherly love even to a greater extent than
in paternal feeling.
08 There are other provisions with reference to crimes committed by men
over seventy and minors under fifteen, and also by men over eighty and
minors under ten. There are similar provisions making allowance for a
criminal's physical infirmities.
" It seems that in such cases not the ability to bear punishment, but the
criminal intent, is the test ; and since a minor under a prescribed nge is pre
sumed by law to be incapable of or less dominated by the criminal intent,
therefore the fact that he is tried when above that age does not change the
original nature of his crime.
533
7. Voluntary Surrenders to Justice.

If a criminal comes to the court at his own instance and discloses
his crime before he is prosecuted or before he anticipates a prose
cution, he shall be pardoned, provided always that if he has derived
any gain from his wrongful act, he shall repay it to the court or to
the owner according as the law may direct'0
AnnotationsTo persist in a wrong is a crime, indeed. Now
since an offender takes the initiative in confessing his guilt with a
view to expiating it and beginning a new life, therefore he ought
to be pardoned. But if his crime has already become known to
any third person, though not as yet brought to the notice of the
court, when he makes the confession, he is not to be pardoned.
If, during the trial of a lighter offense, the prisoner discloses at
his own initiative a graver offense, he shall be pardoned for the lat
ter offense. This will also be true if, in his answers to the questions
asked by the judge concerning the offense on trial, he brings forth
matters which would constitute another offense." If his disclosure
is inaccurate or fails to cover the whole ground of his offense, he
shall be punished for so much crime as he has not disclosed ; pro
vided always that if the residue of the crime would subject him to
the death penalty, he shall be punished by one degree less seriously.
AnnotationsFor example, if a criminal, who by highway rob
bery took a certain amount of money, discloses to the court that
he stole so much money, here we have a case of inaccurate dis
closure. Since he does not mis-state the amount of money, but
simply misrepresents robbery to be theft, therefore he is to be
charged with the attempt to rob. The failure to cover the whole
ground of a crime may be illustrated by the case where a criminal
receives a bribe up to the value of fifteen pihs72 of cloth, but he
confesses only fourteen pihs. Here one pih is not covered by the
disclosure; so he is to be punished for receiving a bribe up to the
value of one pih. But suppose a robber who robbed up to the value
of twenty pihs should confess only ten pihs. According to law,
robbing up to the value of ten pihs (which is not covered by the
n He is pardoned, but he cannot derive any gain from his wrong-doing.
Compare the Roman maxim, "Non fac1as malum ut inde veniat bonum."
" Compare Amendment V of the United States Constitution, and W1cmore, Ev1dence, Sections 2252 and 2281.
"A pih equals sixteen yards approximately.
534
MICHIGAN LAW REVIEW
confession) is punishable by death; but as the crime is discovered

by reason of his confessing the other ten pihs, his punishment shall
be one degree lower than death.
QuestionIn case a person who murdered a stranger confesses
to the court that he murdered his maternal uncle (which is not true).
* * * What will be the judgment?
AnswerThe murder of a stranger is a lesser crime than the
murder of one's maternal uncle. Since he confesses a graver crime
than he actually committed, he should be pardoned.
QuestionA certain man unlawfully conceals armor and bow
strings, and comes to the court confessing that he conceals a spear
(which is a lesser crime). What will be the judgment?
AnswerSince he does not confess the concealment of armor
and bowstrings, the whole offense remains; and the fact that he
has confessed the spear only excuses the concealment of the spear.
8. Principal and Accessory.
Among those who participate in a crime, the original contriver
shall be held to be the principal, and the accessories shall suffer a
punishment by one degree less severe than the principal.
In case members of a family participate in a crime, the family
head alone shall be punished;73 but if the latter is by law exempt
from punishment (on account of advanced age or physical infirm
ity), then the punishment shall fall upon the one who stands next
in family rank. Provided that in case of personal injuries the ordi
nary law of principal and accessory shall govern.
9. Persons Convicted of Several Crimes.
Those convicted of two or more crimes shall be punished for the
graver crime alone. If the several crimes are of the same degree,
the criminal shall receive only one punishment.74 If after he is
This rule had its origin in patria potestas. The family head was of
course liable for his own wrong, but, besides, he was also responsible for the
offenses of his inferiors, upon the ground that he did not prohibit what he
ought and was able to prohibit. In other words, his responsibility was com
mensurate with his power, and since his power was plenary, so should be
his responsibility.
It is worthy of note that this provision recognizes a merger in crimes
of the same degree. This suffices to show that under T'ang the predominant
element in penal laws had become exclusively the reformation of the crim
inal, except in cases of political offenses.
535
convicted of one crime he is found guilty of another lighter crime,

he shall not suffer cumulative punishment ; but if the crime which
is later discovered is a graver one than that for which he has aiready
been convicted, then he shall suffer punishment for the graver crime.
Provided always that in cases where the criminal has derived
benefits from his several crimes, he shall return them all and payfines for the total amount of the unlawful gains.
1o. Crimes Committed by Barbarians.
In case a barbarian commits a crime against another barbarian
of the same tribe, he shall be dealt with according to the customary
law which prevails in the said tribe ; but in case he commits a crime
against one who belongs to another tribe, he shall be dealt wi1h
according to the laws of the empire.75
11. Rule of Interpretation where Statutes Appear Contradictory.
When a particular provision conflicts with general provisions, the
particular provision shall govern.
12. Interpretation by Analogy.7"
In cases where no specific law for the offense is provided, in order
to acquit a prisoner the magistrate shall cite statutes which excuse
a person for a graver act than that with which the criminal on trial
is charged.
Annotations* * * For example, the law is that if a person enters
another man's house in the night without cause, the owner of the
house shall not be held responsible for killing him on sight. A for
tiori, he is not responsible for wounding the trespasser.
On the other hand, to convict and punish a prisoner, the magis
trate shall cite statutes which make a less serious act a crime than
that for which he is found guilty.
Annotations* * * For example, according to law, the attempt to
murder one's elder relation in the first degree is punishable by death.
"This corresponds somewhat to the distinction of ins civile and ius gen
tium in the Roman law.
" "Interpretation by analogy" is perhaps not a very accurate translation ;
for this is not so much interpretation by analogy as by strict logic, the pro
vision being based upon the premise that the greater contains the less. Com
pare the Roman maxim, "Major continet in se minus."
536
MICHIGAN LAW REVIEW
A fortiori, in case of actual killing or wounding in an attempt to

murder, the same penalty shall be imposed, though the latter is net
specifically provided for.77 * * *
John Wu.
University of Michigan.
(To be Cont1nued)
These readings on the general provisions of Chinese law will be fol
lowed by similar readings on Chinese family and property law.
M1ch1gan
Law
Rev1ew
PUBLISHED MONTHLY DURING THE ACADEMIC YEAR, EXCLUSIVE OP OCTOBER, BY THE

subscrlpt1on prlce bj.oo per year.
ASSOCIATE EDITORS
Henry M. Bates
Edson R. Sunderland
E. C. Goddard
Joseph H. Drake
John B. Wa1te
Louls A. Parker, of Iowa
W1ntf.r N. Snow, of Maine
Edw1n B. Stason, of Iowa
NOTE AND COMMENT
Declaratory Judgments.The widespread interest in this new form of
remedial instrument, which was somewhat dashed by the recent decision of
the Michigan Supreme Court in Anway v. Grand Rapids Ry. Co. (192o),
211 Mich. 592, holding declaratory relief to be non-judicial and outside the
constitutional power of courts (19 M1ch. Law Rev. 86), has been revived
by the action of the legislature of Kansas in enacting a declaratory judg
ment statute almost identical with the Michigan act. This was dons with
full knowledge of the decision in the Anway case, and inasmuch as it is
well known that some of the judges of the Supreme Court of Kansas have
taken an active interest in advocating this reform, it is fair to assume that
the act is likely to escape the constitutional guillotine. The English judges
have for two generations or more been the chief proponents of English pro
cedural reform, and nothing would be more universally welcomed in this
country than the generous participation and leadership of our high judges
in the efforts of the public to make the administration of justice more respon
sive to social needs.
The new Kansas act, known as the Hegler-Harvey Bill, was signed by
53
MICHIGAN LAW REVIEW
the governor on February 17, 1921, to become almost immediately operative.

The text of the act, which may be compared with the Michigan act (Pub.
Acts, 1o2o, No. 15o), printed in full in 17 M1ch1gan Law Rev1ew 688, is as
follows :
AN ACT Relating to Declaratory Judgments.
Be It Enacted by the Legislature of the State of Kansas :
Sect1on 1. In cases of actual controversy, courts of record, within the
scope of their respective jurisdictions, shall have power to make binding
adjudications of right, whether or not consequential relief is, or at the time
could be, claimed, and no action or proceeding shall be open to objection
on the ground that a judgment or order merely declaratory of right is
prayed for. Controversies involving the interpretation of deeds, wills, other
instruments of writing, statutes, municipal ordinances, and other govern
mental regulations, may be so determined, and this enumeration does not
exclude other instances of actual antagonistic assertion and denial of right.
Sect1on 2. Declaratory judgments may be obtained and reviewed as
other judgments, according to the code of civil procedure.
Sect1on 3. Further relief based on a declaratory judgment may be
granted whenever necessary or proper. The application shall be by petition
to a court having jurisdiction to grant the relief. If the application be
deemed sufficient, the court shall, on reasonable notice, require any adverse
party whose rights have been adjudicated by the declaration of right to show
cause why further relief should not be granted forthwith.
Sect1on 4. When a declaration of right or the granting of further relief
based thereon shall involve the determination of issues of fact triable by a
jury, such issues may be submitted to a jury in the form of interrogatories,
with proper instructions by the court, whether a general verdict be required
or not.
Sect1on 5. The parties to a proceeding to obtain a declaratory judgment
may stipulate with reference to the allowance of costs, and in the absence
of such stipulation the court may make such an award of costs as may seerr
equitable and just.
Sect1on 6. This act is declared to be remedial ; its purpose is to afford
relief from the uncertainty and insecurity attendant upon controversies over
legal rights, without requiring one of the parties interested so to invade the
rights asserted by the other as to entitle him to maintain an ordinary
action therefor ; and it is to be liberally interpreted and administered, with
a view to making the courts more serviceable to the people.
Sect1on 7. This act shall take effect on publication in the official state
paper.
This act in terms confines the power of making binding declarations of
rights to "actual controversies," a limitation which is doubtless inherent and
upon which the English courts have always acted in administering this rem
edy. It expressly includes "statutes, municipal ordinances and other govern
mental regulations" among the subjects for declaratory interpretation, which
is probably an improvement upon the Michigan act, which included them
only by implication, as the English rules do. And it makes clearly specific
NOTE AND COMMENT
539
its purpose to enable parties to know their legal rights without requiring,
as the law has heretofore generally required, the commission or threat of a
wrongful act as a condition precedent to judicial action.
E. R. S.
Adm1ralty Rule of "Care, Cure and Wages" as Appl1ed to the Great
Lakes.It has been the rule in admiralty law from ancient times that the
vessel and her owners are liable in case a seaman falls sick or is wounded
in the service of the ship, to the extent of his maintenance and cure and to
his wages, but to no further compensation as damages unless the ship was
unseaworthy or there was neglect in furnishing care and cure. Laws of
W1sby, Article 18; Rules of Oleron, Article VI; Laws of the Hanse
Towns, Article 39; Mar1ne Ord1nances, Lou1s XIV, Bk. III. Title 4,
Article 11; 2 Pet. Admiralty Decisions; The Osceola, 189 U. S. 158; The
Troop, 118 Fed. 769.
Questions have arisen, however, as to the extent of the liability for
maintenance and cure and as to how long after the injury the sailor is entitled
to payment of wages. It is settled that "cure" does not mean complete resto
ration or healing, but refers rather to care and attention. In Nevitt v. Clarke,
Olcott 316 (Fed. Cas. No. 1o,138), it was held that the privilege of being
cured continues no longer than the right to wages under the contract in the
particular case. In The Ben Flint, 1 Abb U. S. 126, the claim to be cured
at the expense of the ship is held to be applicable to seamen employed on
the lakes and navigable rivers within the United States. A point long in
dispute has been the question of wages due the seaman after the injury.
This now appears definitely decided as to the Great Lakes in cases where
there enters no element of unseaworthiness, and where the seaman sh1ps for
a certain voyage. In Great Lakes Steamship Company v. Geigcr (Circuit
Court of Appeals, Sixth Circuit), decided November 5, 1919, reported in
261 Federal Reporter, at page 275, a seaman, after signing regular articles,
shipped at a Lake Erie port for a round trip to the head of Lake Superior
and return. During the voyage, while aiding in closing the hatches, libelant's
finger was caught in the operating mechanism and so crushed that it had to
be amputated. There was no question of unseaworthiness, the pole cause of
the accident being the negligence of other members of the crew. Care and
cure were furnished at the expense of the steamer and his wages were paid
to the end of the voyage, that is, until the return of the steamer to Lake
Erie. Libelant claimed wages and maintenance for the entire period he was
disabled, about three months. The question on appeal was whether libelant
was entitled to allowance for wages after the end of the voyage and whether
interest should be allowed.
After deciding that the injury here was maritime and within the juris
diction of admiralty, and reiterating the general rule of care, cure and
wages, the court considered the earlier cases on the subiect and feemed to
qualify to some extent the rule of duration of care and cure set forth in
Nevitt v. Clarke, supra, in cases where either it had been commenced and is
in a course of favorable termination or the ship had not given due attention
to the seaman's necessities, or the case had been improperly treated ; at any
54
MICHIGAN LAW REVIEW
rate, the appellate court upheld the district court's award for maintenance
for the period libelant was disabled, thirteen weeks at $1o per week, saying
the award was proper and that libelant was entitled to interest thereon from
the time its payment was due. As to wages, the court fnund that libelant's
shipment contract did not extend beyond lhe termination of the voynge and
limited his wages to the end of the voyage, saying they did not decide what the
rule would be had the contract of employment extended beyond the end of
the voyage.
Albert G. Guetz
Detroit, Michigan.
Br1ng1ng Th1rd Part1es 1nto Act1ons at LawSet-off aga1nst thf.
Ass1gnor.It frequently happens, in an action by an assignee, that the defend
ant wishes to use as a cross-action a claim against the assignor. This results
in no difficulty unless the amount of the set-off against the assignor is greater
than the claim of the plaintiff, or unless the cross-action calls for a specific
remedy against the assigner in addition to its defensive effect upon the plain
tiff's demand. In each of these cases we have a three-sided controversy.
In the first, the set-off operates against the plaintiff to the extent of his
claim and against the assignor for the balance. In the second, the crossaction operates against the plaintiff and his assignor in ways which may be
quite variously different. If the assignor can be brought into the contro
versy, it can be wholly determined in a single action; otherwise two or more
actions are necessary.
In State ex rel. Alaska Pacific Navigation Co. v. Superior Court (Wash.,
192o), 194 Pac. 412, there was an example of the first of these two cases.
The plaintiff was assignee of an account solely for collection and claimed
no beneficial interest in it. The defendant had a cross-demand against the
assignor arising out of the same contract which produced the account sued
upon, and this cross-demand exceeded the amount of the plaintiff's claim.
It was obvious that the defendant could not get a judgment for a balance in
his favor against the plaintiff, but that this could be obtained, if at all, only
against the assignor. Under a familiar statute providing that where a com
plete determination of the controversy cannot be had without the presence
of other parties, the court shall cause them to be brought in, the defendant
asked that the action be stayed until the assignor should be brought in.
Refusal to make this order was affirmed on appeal, the court holding that
this statute referred to necessary parties in the technical sense of that term,
and in an action at law, where the defendant makes use of a legal counter
claim, no third party can be necessary.
The point of interest in this decision is not so much whether it :s right
on authority as whether it can be justified on broad principles of procedural
policy. It brings up several interesting questions affecting the nature of
actions and the relation of parties thereto, and illustrates the extreme antip
athy with which professional conservatism meets proposals for even the
most natural and simple changes in judicial administration.
1. We have here a three-sided legal controversy. The common law
NOTE AND COMMENT
54,
was in theory wedded to the idea of a two-sided controversy as the essential

condition for judicial action. One plaintiff or a unified group of joint plain
tiffs must sue a single defendant or a unified group of joint defendants.
This principle lies at the foundation of the whole scheme of parties in com
mon law actions. In the case of two plaintiffs, if their interests are several
they cannot hring a single action to enforce their rights, thus developing a
three-sided controversy, but each must bring a separate two-sided action.
Gould on Plead1ng, Ch. IV, Sec. 53. In case of two defendants, if their
liability is several, each must be a sole defendant in a separate two-sided,
action, and both cannot be joined in a three-sided controversy. 3o Cvc. 12o.
If this doctrine of unity of parties is based on the idea of preserving
singleness in the issue, the effort is vain, because by the use of numerous
counts and pleas many issues may arise in a single action. If it is based on
the supposed impossibility of splitting up a judgment so as to determine a
controversy with more than two sides, it may be answered that the common
law did in fact tolerate judgments which determined legal relations among
three or more parties. In Seymour v. Richardson Fueling Co. (1oo3), 2o5
Ill. 77, the court quotes many common law authorities in support of the
proposition that while the general rule is that the judgment must be a unit
as to all the defendants in assumpsit, yet "if one defendant pleads matter
which goes to his personal discharge, such as bankruptcy, or to his personal
disability to contract, such as infancy, or any other matter which does not
go to the nature of the writ," judgment may be rendered for such defendant
and against the rest. So, where two or more are charged with a joint tort,
one may be found guilty and another acquitted, as the evidence may require.
1 Ch1tty on Plead1ng, *74. And even in the case of joint plaintiffs, where
they are united through a common interest, one may obtain a judgment in
his favor while another fails. 15 Stand. Encyc. of Procedure, 81. In all
these cases the judgment does in fact determine a controversy with three or
more sides.
It must be concluded, therefore, that three-sided controversies have
forced themselves within the jurisdiction of common law courts, and that
the fact that in the principal case the presence cf the assignor would com
plicate the issues and call for a judgment settling a triangular controversy,
is no justification in principle for the decision.
2. In the principal case the third party sought to be brought in was
not involved in the original action, but in a cross-action. In so far as this
cross-action operated as a defense, thus corresponding to the common law
recoupment, it was fully available to the defendant without the presence of
a third party. But if it was to be used at its full value, resulting in a judg
ment for the balance in defendant's favor, the assignor had to be before the
court.
Now, in such case, in order to prevent obvious injustice, the usual rules
of common law procedure cannot be permitted to operate. One of two
things must be done. Either the third party must be allowed to come into
the case, and the liability apportioned between the assignee and assignor,
which is contrary to orthodox practice : or the defendant must be authorized
MICHIGAN LAW REVIEW

to split his cause of action and use part of it to extinguish the plaintiff's
demand and the balance as a separate claim against the assignor, to be
asserted in a separate suit, which is also contrary to the orthodox rule, which
prohibits splitting a cause of action. From the standpoint of convenience it
is clear that bringing in the third party, when it can be done, is the better
method. The common law, however, with its technical distrust of simplicity,
chose the other method. Confronted by a dilemma which inevitably called
for the sacrifice of traditional conventions in one direction or the other, the
single action with three parties was passed by in favor of two separate
actions each with two parties, on the two portions of the split demand. Hennell v. Fairlamb (18oo), 3 Esp. 1o4; 1 Corpus J';r1s, m1.
The principal case is therefore in harmony with the common law solu
tion, but no reason exists in principle why courts should not. in the exercise
of common law powers, allow either solution as the occasion requires. The
courts were forced, in this situation, to dt> something on their own authority,
without statutory aid, and they assumed jurisdiction. If they had power to
adopt one plan, there was equal power to adopt the other. Why should all
subsequent courts continue to follow the accidental lead of that original
choice of a remedial alternative?
3. The usual American counterclaim statute does not expressly authorize
a cross-demand which involves new parties, is commonly construed to carry
no implied authority to plead such a demand, and often forbids it in terms.
Sunderland, Cases on Code Plead1ng, 356-364; Taylor v. Malteson (1893),
86 Wis. 113. A very few have provided expressly for bringing in new par
ties. Kansas St., 19o9, Sees. 5692, 5694. The most striking development in
this field has been the new C1v1l Pract1ce Act adopted in New York in 192o,
Sec. 271, which contains the following provision :
"Where a defendant sets up any counterclaim which raises ques
tions between himself and the plaintiff along with any other persons,
he shall set forth the names of all persons who, if such counterclaim
were to be enforced by cross-action, would be defendants in such crossaction. When any such person is not a party to the action he shall
be summoned to appear by being served with a copy of the answer.
A person not a party to the action who is so served with an answer
becomes a defendant in the action as if he had been served with the
summons."
Under the English practice it has long been customary to bring in third
parties on counterclaimsOrder 21, rule 12; and several British provinces
have similar rules. Nova Scotia, Jud. Act, 192o, Sec. 18(3), and Order 21,
rule 11; Ontario, Jud. Act, Rule 113. The principal case is a good illustra
tion of the utility of such a provision, which would, in this instance, have
allowed the whole controversy to be settled in a single action. The English
practice provides a safeguard against the inconvenient use of the privilege
of bringing in third parties, by permitting the third party, when summoned,
to show cause why the claim should be prosecuted by a separate suit, and the
judge may make such order as may be just. Order 21, rule 15.
NOTE AND COMMENT
543
4. The effort made in the principal case on the part of the defendant
to secure an order bringing in the assignor under the general statute author
izing new parties who are necessary to a complete determination of the con
troversy, was doomed to failure under the commonly accepted interpretation
of that statute. It has been held to apply only to equitable causes of action
or cross-demands. Chapman v. Forbes (189o), 123 N. Y. 538. In the prin
cipal case the court distinguished State ex rel. Adjustment Co. v. Superior
Court, 67 Wash. 355, on the ground that there the counterclaim was not a
mere money demand aaginst the assignee, but an equitable defense calling
for affirmative relief. Another case where the assignor was brought in on
a counterclaim pleaded' against the assignee is Gildersleeve v. Burrows (1873),
24 Ohio St. 2o4, where the counterclaim was an equitable set-off. To be sure,
the statute contains no express restriction to equitable actions and crossdemands, but the inevitable tendency to limit the scope of procedural inno
vations has fixed this implied restriction.
5. The whole question of third parties coming into actions at law has
received a broad and generous stimulus in England and some of the British
dominions through rules authorizing so-called Third Party Procedure,
whereby any defendant entitled to contribution or indemnity over against
any other person not a party to the action may by leave of court bring such
party in, and thereby have the whole controversy, including the indemnity
or contribution, settled in a single action. England, OrdEk 16, rule 48. The
practice is widely employed and has demonstrated its great utility.
6. It is apparent that the principal case, while rightly decided under the
current authorities, exhibits the very low state of procedural development
from which we suffer in this country, and suggests the need of both a more
progressive attitude on the part of our courts and a more enlightened legis
lative policy.
E. R. S.
"The Fam1ly Automob1le"L1ab1l1ty of Owner for 1ts Negl1gent Use
by a Member of H1s Fam1ly.The advent of the "family automobile" has
brought with it the question as to the liability of an owner of a machine,
which he buys for the pleasure and convenience of his family, for injuries
resulting from the negligent use thereof by a member of his family, with his
consent. A recent case, Spence v. Fisher (Cal., 192o), 193 Pac. 255, reflects
the confusion and divergence of opinion upon what has become known as
the "family purpose" doctrine of liability.
Of course, it is universally admitted that the mere fact of ownership
does not make a father liable for the negligent acts of his child in the use
of the car. Nor does the mere relationship of parent and child make the
former liable per se. Erlick v. Heis, 193 Ala. 669, 6o So. 53o. It is substan
tially agreed that the father is liable if the child is acting as his actual agent
in driving the machine. Morrison v. Clark, 14 Ala. App. 323, 7o So. 2o,i.
And in accordance with the general principles of agency, he is not liable if
the child steps out of his position as agent by making a deviation from his
father's business for his own pleasure. Jennings v. Okin, 88 N. J. L. 659.
544
MICHIGAN LAW REVIEW
97 Atl. 249. Thus, also, he is not liable if the child has taken the car against
his command. Johnston v. Cornelius, 193 Mich. 115, 159 N. W. 318.
At this point the divergence of opinion begins, and it seems to the writer
that at the root of this seemingly irreconcilable conflict upon this doctrine
of imputed negligence lies the failure to classify the various cases according
to their fundamental facts. In practically all of the cases in this field the
facts involve the purchase and maintenance by the head of the family of a
machine for the pleasure, use and convenience of the family, the express or
implied consent to its use by any member of the family, a subsequent negli
gent use by one of the family, and a resulting injury to a third party, for
which suit is brought against the head of the family. Behind this skeleton
of facts lie other facts that form the basis of a classification that helps one
make his way through what has been called a "trackless forest of cases."
First, there are the cases where the child, most often a son, is the family
chauffeur, where the father is the registered owner of the car, but the son
is the only licensed driver in the family. In such plainly there is a patent
relationship of principal and agent or master and worker, in which, by the
application of the doctrine of respondeat superior, the father can be held
liable for the negligent acts of his appointed driver. In this class are Smith
v. Jordan, 211 Mass. 269, 97 N. E. 761 ; Daily v. Max1vell, 152 Mo. App. 415,
133 S. W. 351; Bourne v. Whitman, 2o9 Mass. 155, 95 N. E. 4o4; and Lewis
v. Steele, 52 Mont. 3oo. 157 Pac. 575, all often cited as upholding a much
broader doctrine of liability.
Second, there are the cases where the negligent member of the family
is driving members of the family, either- at the express* command of the
father or in obedience to an implied request to drive them about. In such
cases the machine is being used for the purpose for which the pater familial
purchased and maintained it: the pleasure and convenience of his family.
At the time of the accident manifestly the child is the agent of his father,
carrying out the purposes of his father, as much as if the owner had hired
a third person outside the family to act as chauffeur. McNeal v. McKoin,
33 Okla. 449, 126 Pac. 742 (driving sister) ; Lemke v. Ady (la., 1916), 159
N. W. 1o11 (driving mother).
Third, there are the cases where the child, granted permission to >1se the
machine for his own purposes, at the time of the accident is driving alone
or with persons other than members of his family. It is in this last class
alone that the real conflict of opinion arises. Some courts have adopted the
"family purpose" doctrine in its full scope, and have unqualifiedly applied it
even where the child was driving for his own purpose, on the theory that
the car at the time of the accident was being used for the purpose or busi
ness for which it was kept, and that the person operating it, therefore, was
acting as the owner's agent or servant in using it. Birch v. Abererombie, 74
Wash. 486, 133 Pac. 1o2o; Benton- v. Regeser, 2o Ariz. 273, 179 Pac. 966;
Plasch v. Pass (Minn., 1919), 174 N. W. 438 (wife was driving for own
pleasure while husband was out of the state). On the other hand, other
courts have squarely rejected this doctrine of liability on the ground that
the view asserting liability strains the logic of the situation and unwarrant
NOTE AND COMMENT
545
edly stretches the principles of agency. Spence v. Fisher, supra; Doran v.

Thomsen, 76 N. J. L. 754, 71 Atl. 296; Arkin v. Page (Ill., 1919), 123 N. E.
3o; Van Blaricom v. Dodgson, 22o N. Y. 111, 115 N. E. 443; Watkins v.
Clark, 1o3 Kan. 629, 176 Pac. 131.
The view upholding liability in this last class of cases is founded upon
what has been called the "somewhat attenuated" theory that a minor in
amusing himself is acting as agent in his father's behalf. A parent, these
tribunals argue, owes a duty of furnishing recreation and pleasure to his
children, and when they employ themselves in pursuit of such recreation and
amusement they become his agents. Burch, J., in Watkins v. Clark, supra,
waxes sarcastic over this theory
"So," he points out, "if daughter took her friend riding she might think
she was out merely for her own pleasure ; but she was mistaken ; she was
conducting father's 'business' as his 'agent.' * * * If son took his best girl
riding, prima facie it was father's little outing by proxy, and if any accident
happened, prima facie father was liable."
As the New York Court of Appeals said in Van Blaricom v. Dodgson,
supra, holding the father liable for the negligent acts of his child while the
latter was using the family car for his own convenience or pleasure, while
engaged exclusively on a mission of his own, is certainly "an advanced prop
osition in the law of principal and agent," presenting "a case of such theo
retical and attenuated agency, if any, as would be beyond the recognition of
sound principles of law as they are ordinarily applied to that relationship."
"The doctrine that the pleasure of the family in its utmost detail is the
business of the father has no firm foundation in reason or common sense.
In theory it overlooks well-settled principles of law ; in practice it would
interdict the father's generosity and his reasonable care for the pleasure or
even the well-being of his children by imposing a universal responsibility for
their acts." Parker v. Wilson, 179 Ala. 361, 6o So. 15o.
The tribunals asserting universal liability really base the creation of the
relation of master and servant, which they read into the facts, upon the
purpose which the parent had in mind in purchasing the car and in permitting
the family to use it. This proposition plainly ignores an essential element
in the creation of that status as to third persons ; such use must be in fur
therance of, and not apart from, the master's service and control. It fails
to distinguish between a mere permission to use and a use subject to the
control of the master and connected with his affairs. Doran v. Thomsen,
supra. The purpose of the parent in buying the car cannot of itself create
the relationship contended for. Hays v. Hogan, 273 Mo. I, 2oo S. W. 286,
reversing 18o Mo. App. 237, 165 S. W. 1125.
Weighing the arguments of the two lines of cases, the better reason
seems to be with those which deny liability when the child is out for a "spin"
of his own. The trend of the latest decisions is towards this view. The
argument that the pleasure and recreation of the family is the father's busi
ness, carried to its logical conclusion, would make the father absolutely liable
for every tort of every member of the family while such member is seeking
his own pleasure. If the doctrine is sound, Arkin v. Page, supra, points out,
546
MICHIGAN LAW REVIEW
it ought to be equally applicable where the thing used is a bicycle, horse, gun,
golf-clubs, etc. Yet, it is very probable that even the courts upholding this
view would deny the existence of a master and servant relationship upon
which to base liability in cases involving these. It is interesting to note that
the liability of a father has been denied in the case of a horse being driven
by his son. Maddox v. Brown, 71 Me. 432.
A close examination of the reasoning of the courts which accept this
proposition, which is seemingly contradictory on its very face, asserting, as
it does, that a person who is wholly and exclusively engaged in the prosecu
tion of his own concerns is, nevertheless, engaged as agent in doing some
thing for someone else, shows that, in truth, there runs through practically
all of the cases an under-current of the idea, that because an automobile is
more dangerous when carelessly used than most other family agencies there
should be an extension of the established doctrine of agency to safeguard
its use.
In Birch v. Abererombie, supra, the court said : "Any other view would
set a premium upon the failure of an owner to employ a competent chauffeur
to drive a car kept for the use of the members of the family. The adoption
of a doctrine so callously technical would be little short of calamitous."
King v. Smythe, 142 Tenn. 217, 2o4 S. W. 296, denies that an automobile
is such a dangerous agency, per se, as to make its owner liable universally,
yet it admits that it holds a father liable for its negligent use by his son
because of "the dangerous character of automobiles."
Adopt this view of the nature of the automobile and, as one judge put
it, you change the old maxim to read, "Qui facit per auto facit per se." The
difficulty is that practically every court which has passed on the question
squarely has repudiated any such doctrine that an automobile is within the
rule making the owner of an inherently dangerous instrumentality liable for
the use thereof by any person. Tyler v. Stephen, 163 Ky. 77o, 174 S. W. 7oo;
Premier Motor Mfg. Co. v. Tilford, 61 Ind. App. 164, m'N. E. 645. But
see Southern Oil Co. v. Anderson, infra.
One of two alternatives faces the court : either they must, considering
the great increase in the number of "family cars" and their resulting negli
gent use by reckless young drivers on crowded streets, desert their old ideas
on the danger of the automobile, and henceforth recognize it as an instru
mentality within the rule whereby owners of dangerous agencies are held
liable for their use by any person (except in cases of independent acts or
acts of God) ; or the legislatures of the several states must come to their
aid with statutes fixing the liability of the owners. The attenuated agenc>
theory will not stand.
A most recent case dealing with the negligent use of an automobile
owned by a corporation while being driven by one of its agents goes exhaust
ively into the history of automobile accidents in the United States in the
past few years, and shows that the time has come to recognize the machine
as an inherently dangerous agency. Southern Oil Cc. v. Anderson (Fla..
192o), 86 So. 629. It is submitted that liability established on such ground
is far more reasonable than on the agency theory.
NOTE AND COMMENT
547
Yet it seems that, after all, it is not the ferocity of the automobile that
is to be feared, but the ferocity of those who drive them. Considering that
the vehicle is one that in the hands of reckless drivers spreads over the land
the maimed and dead until, as one court put it, "it has belittled the cruelties
of the car of Juggernaut," considering that parents who entrust such agencies
in the hands of reckless minors should in all justice be liable for injuries
inflicted by them, and taking into account the undoubted practical considera
tions in favor of the doctrine of respondeat superior, since it puts the finan
cial responsibility of the owner, who can insure himself, behind the car while
it is being used by a member of the family, who is likely to be fmancially
irresponsible, it seems liability should fall on the parent. Admitting the rule
to be fair, it must be created by legislative enactment, not by a judicial dis
tortion of the principles of agency.
For a discussion of such statutes, see 19 M1ch. L. Rev. 333, and 6 Cornell
Law Quart. 187, where the writers adopt opposite views as to the validity
of a Michigan statute.
H. A. A.
Publ1c Ut1l1ty RatesState Power over Mun1c1pal1ty.Under con
stitutional authority, a city gave its consent to the construction of a street
railway on condition, among other things, that the company enter into a
contract fixing rates of fare. The company asked of the Public Service
Commission an order raising the rates so fixed, on the ground that the con
tract rates had become unreasonable. Held, that while the contract rates
may be binding as between the parties to the contract, they have no binding
force when in conflict with rates fixed by a state commission in the manner
prescribed by the statute. City of Seranton v. Public Service Com. (Pa.,
June, 192o), 11o Atl. 775It has often been suggested that power to fix rates is one of the police
powers of sovereignty that is never to be presumed to be given up unless it
is clear beyond doubt. 18 M1ch. L. Rev. 8o6, 19 ib. 112; Richmond v. C. &
P. Tel. Co. (Va., 192o), 1o5 S. E. 127; Hoyne v. Elevated Co. (III., 192o),
120 N. E. 587. In Charleston v. Pub. Serv. Com (W. Va., 192o), 1o3 S E.
673, the court distinguishes between matters of proprietary right in which a
sovereign state may permit a municipality to make an inviolable contract
and those phases of police power relating to public safety, health, and morals.
It has been intimated that the power to fix permanent rates may be consid
ered to be a power which cannot be surrendered by the state Chicago Rys.
Co. v. Chicago, 292 Ill. 19o (1020) ; Niagara Falls v. Pub. Serv. Com. (N. Y.,
192o), 128 N. E. 247; Camden v. Arkansas C. & P. Co. (Ark., 192o), 224 S.
W. 444. Municipalities and companies are conclusively presumed to know
this when they become parties to a contract, and therefore to know "that
the sovereign police power of the state to modify its terms would be supreme
whenever the general well-being of the public so required," as the court
puts it in the instant case. But cf. Ottumwa Co. v. Ottumwa (la., 192o), 178
N. W. 9o5. But this is a rule that should work both ways. If the state in
its sovereignty can raise the rates in favor of the utility, then equally in
proper case it should be able to lower contract rates in favor of the public.
54
MICHIGAN LAW REVIEW
If this is a sovereign power which cannot be surrendered, then the state

should be able to change rates contracted for with the state itself, as well
as those made by its consent by contract to which the municipality is a party.
Under such a provision as that of the Constitution of Pennsylvania"The
exercise of the police power of the state shall never be abridged, or so con
strued as to permit corporations to conduct their business in such manner
as to infringe the equal rights of individuals or the general well-being of
the state"other provisions of franchises should be subject to the same rule,
and the extent of such power in the state to change franchise or contract
provisions would be bounded only by the definition of police power. This
seems good sense and good law, but it is capable of extension to many cases
that have been treated as contract matters only, though involving mattes
very closely touching the "general well-being of the state." This gets entirely
away from the doubtful position that a municipality in making such contracts
is an agent of the state, and the state as principal may consent to a change
in the contract made by the agent, even though the agent has to pay the price.
There is no true contract situation of agency there. 18 M1ch. L. Rev. 8o6.
The company, it would seem, is bound by the limitations of the contract
until the state consents to a change, and till then cannot charge more than
the maximum rates agreed to in the franchise, even though it can operate
at those rates only at a loss. The public, however, cannot compel operation
at a loss. The company may quit. Charleston-Isle of Palms Traction Co.
v. Shealy, 266 Fed. 4o6 (June, 192o). Not much has been said about the
rights of a city which has consented to the use of its streets on a contract
fixing fares at a certain price. But if the state may release the company
from its agreement as to price, can the company insist on its right to stand
on the other terms of the contract with the city? It would seem that if the
city was granted the power to give or withhold its consent, it should have
the power to withdraw such consent when the company no longer lives up
to the terms on which it wa? given. It was so held in Meridian L. & R Co.
v. Meridian, 265 Fed. 765 (May, 192o). In this case it seemed the city had
no authority to contract as to the rates, and still the court said if the com
pany enjoyed the privilege it must assume the burdens on which they were
granted, and a court could not grant relief, though it would bring disaster
on the company to refuse. The court intimated that the legislature could
grant higher fares, but if the constitution gives the city control over consent
to occupy the streets, how does the legislature have power to nullify the
conditions on which the consent was given, and yet prevent the city from
withdrawing its consent? Few cases recognize any rights in the city as
against the legislative act raising rates, even though the city is bound by its
part of the contract. Pub. Serv. Com. v. Cirton (Ind., 192o), 128 N. E. 69o;
Richmond v. C. & P. Tel. C (Va., 192o), 1o5 S. E. 127.
Cases continue to appear in which cities assume to fix a permanent price
for service when no such power has been conferred upon them. See Ottumwa
R. & L. Co. v. Ottumwa (la., 1920), 178 N. W. 9o5, which does not agree
to the doctrine that a contract for a permanent rate infringes sovereignty;
Warsaw v. Pavilion Nat. Gas Co., 182 N. Y. S. 173, which holds that no con
NOTE AND COMMENT
549
tract can defeat legitimate governmental authority; People ex rel. Ry. Co. v.
Pub. Serv. Com., 183 N. Y. S. 473, involving a rate in city limits for a rail
road which was not a street railway.
Emergency increases in rates are justified in some cases in these troublous
after-war times. La Crosse v Railroad Com. (Wis., 192o), 178 N. W. 867.
The general discontent aroused by raising of rates by commissions has led
some legislatures to withhold from commissions power over rates fixed by
contract with a municipality. M1ch1gan Acts 1919, 753; Mobile v. Mobile
Electric Co. (Ala., 192o), 84 So. 816; Richmond v. C. & P. Tel. Co. (Va.,
192o), 1o5 S. E. 127, though in New York the restriction is limited to fran
chise's and contracts subsisting when the amendment to the act was passed.
New York City v. Nixon (N. Y., 192o), 128 N. E. 245; Niagara Falls v.
Pub. Serv. Com., ib. 247 : People ex rel. Garrison v. Nixon, ib. 255. In most
cases there is no such limitation on the power of the commission to increase
rates. Pub. Serv. Com. v. Girton (Ind., 192o), 128 N. E. 69o; Hoyne v.
Chicago & O. P. E. Co. (III., 192o), 128 N. E. 5*7- A so-called Home Ru'.e
Charter provision in the constitution does not prevent legislative control of
rates. Detroit v. Mich. R. Com. (Mich., 192o), 177 N. W. 3o6. This power
of commissions over rates has recently been exercised more often in cases
where the contracting parties were the company and the municipality, but it
is equally applicable to rates fixed in a contract between a public util1ty and
an individual. Rutland R. L. & P. Co. v. Burditt Bros. (Vt.. 192o), 11l Atl.
582, citing, among others, the leading case of Union Dry Goods Co. v. Ga.
Pub. Serv. Corp., 142 S. E. 841, aft'., 248 U. S. 372; Pub. Util1ties Com. v.
Wichita R. & L. Co., 268 Fed. 37 (Kan., 192o) ; Ohio & Colorado, etc., Co.
v. Public Utilities Com. (Colo., 192o), 187 Pac. 1o82.
E. C. G.
R1ght of Tort Feasor to Indemn1ty and Exonerat1on.In cases where
a municipality has been called upon to respond in damages because -of its
legal duty to keep sidewalks free from obstructions, but where the obstruc
tion was caused by the negligence of a third person, it is clearly established
by a long line of decisions that the municipality may recover against the
person whose negligence was the real cause of the injury. See a review of
the cases in note in L. R. A. 1916 F. 86.
These indemnity actions seem to be in the nature of quasi contractual
actions, and the theory upon which they are based is much the same as that
in the cases where a surety is allowed contribution from his co-sureties.
That this right of contribution in suretyship cases is not based upon any
true contractual relationship, either express or implied, is clearly shown by
the case of Dcering v. Winchelsea, 2 B. & P. 27o, where it was held that the
right of contribution among sureties exists even in cases where the obliga
tions of the several sureties are evidenced by separate bonds, as well as
where they are bound in the same instrument. And in Norton v. Coons, 6
N. Y. 33, it was held that the right to have contribution exists, though the
sureties became such at different times and without each other's knowledge.
In the cases where a municipality brings an indemnity action against a
negligent landowner, the courts do not state very clearly what the theory of
55
MICHIGAN LAW REVIEW
the action is, some of them going so tar as to say that it is immaterial what
theory the action is based upon. But it seems clearly to be quasi contractual
in its nature. The quasi contract is based upon the concurrent liability of
the city and the landowner. The injured party may sue the landowner whose
negligence was responsible for the injury, he may join the city as a co-de
fendant, or he may sue the city alone, and in any event there will be a
recovery. But the landowner is primarily liable, since it was his negligence
which caused the injury. When the city is compelled to respond in damages
to the injured party, the landowner is thereby released from the tort liability,
and to that extent has been enriched at the expense of the city. This enrich
ment creates a duty binding upon him to indemnify the city for anything it
has had to pay out because of his negligence. And this duty is clearly of
a quasi contractual nature. See Woodward on Quas1 Contracts, Section 258.
An entirely different, and somewhat novel, situation was presented in a
recent' Missouri decision. City of Springfield v. Clement (Aug., 192o), 225
S. W. 12o. In that case a landowner had negligently permitted water spouts
on his building to remain in leaky condition, so as to cause a formation of
ice on the sidewalk, resulting in the injury of a pedestrian. The injured
party sued the city and recovered. Before that suit was brought, however,
the owner of the building died, and his estate was fully administered. After
judgment had been recovered by the injured party against the city, this
indemnity action was brought against the heirs of the landowner, their liability
being predicated upon assets devised to them by the decedent. In allowing
a recovery the court said : "We do not think it material as to a scientific
classification of the plaintiff's cause of action. It is sufficient to know that
the relationship between this plaintiff and Milligan to Miss Abbott's cause
of action and to each other was and is such that the plaintiff is entitled to
recover indemnity for having to pay the Abbott judgment. It is not material
whether such relationship was brought about by an express contract, an
implied contract, or an obligation imposed by law."
Although this decision reached a just result, it is difficult to find a log
ical justification for it. The court distinctly said that it was 1mmaterial
what the theory of the action was, but such a position seems untenable. It
might, indeed, be very material in some cases to determine what theory the
action is based upon. The action unquestionably does not sound in tort,
although that was contended for by the defendants. If it did, it is con
ceded that the action could not survive the death of the landowner. But
there is also a distinct difficulty in establishing a quasi contractual relation
ship such as we have in the ordinary indemnity suit. For here the landowner
was released from his tort liability, not by the payment of the judgment by
the city, but by his death, which occurred before the action had been brought
against the city. It is difficult to make out a duty of the landowner to the
city at the time of his death. And yet, unless there was some duty resting
upon him before his death, this decision cannot be justified on any logical
basis. It would be merely a peremptory decision' in favor of the city. But
is it not possible to establish such a duty by relating it back to the original
negligent acts, or omission to act, of the landowner? This, indeed, seems
NOTE AND COMMENT
55 1
to be the only logical solution of the difficulty. On such a theory the owner
cf the building, by his negligence, comes immediately under a duty to exon
erate the city, to save the city harmless. This duty will survive his death.
While this duty does not seem to fit into any of the more familiar legal
categories, either tort, contract, or quasi contract, that fact raises no vital
objection. Theje could be no doubt as to the power of a legislature to '.mpose
such a duty. See City of Rochester v. Campbell, 8 N. Y. Supp. 252. That
being so, it is not juridicially impossible to conceive of such a duty based
solely upon principles of equity. Such an equitable duty upon the landowner
is closely analogous to the equitable duty of a principal to exonerate his
surety, a duty which is related to, but distinct from, the duty to reimburse
after payment by the surety. See extensive note in L. R. A. 1918C, 1o. See
also a very interesting analysis by Mr. Street in his work on the Foundat1on
of Legal L1ab1l1t1es, Vol. 2, page 236.
P. W. G.

Adverse Possess1onPossess1on 1n One County Carr1es Possess1on
to Cla1med Boundar1es 1n Another County.In an action of ejectment
for a tract of land lying in two counties, the defendant claimed title by
adverse possession under color of title. The question was whether actual
possession in one county would give constructive possession in the other
county. Held, since the enactment of Section 62, Civil Code, allowing an
action for the recovery of real property to be brought in the county in which
the land lies, or any part thereof, actual possession in one county gives con
structive possession in the other. Bevins v. Blackburn, 225 S. W. 37? (Ky.,
192o).
Prior to the above provision, when thq action of ejectment must have been
brought in the county in which the land lay, actual possession in one county
under color of title to a tract of land lying in two counties did not give
constructive possession in the other. Hord v. Walker, 5 Litt. 22 (Ky., 1824) ;
Souder v. McMillen Heirs, 4 Dana 456 (Ky., 1836). The court undoubtedly
considered itself justified in refusing to extend the constructive possession
beyond the county in which there was actual possession, upon the ground
that ejectment could only be brought against one in actual possession. If
such were the case, a disseizee would lose his seisin in the county in which
the disseizor had only a constructive possession, but would at no time during
the statutory period be able to recover possession. An adverse possessor
under color of title, in actual possession of a part and claiming to the extent
of the boundaries embraced in his deed, may, however, bring ejectment for a
dispossession of that part of the tract over which he had only a constructive
possession. Hicks v. Coleman, 25 Cal. 122 (1864). He may also bring tres
pass under the same circumstances. Parker v. Wallis, 6o Md. 15 (1882):
Welsh v. Louis, 31 Ill. 446 (1863). Both ejectment and trespass, q. c. f., lie
for injuries to a possessory right. It seems, therefore, that if one can main
tain ejectment and trespass for the invasion of a constructive possession that
ejectment will lie against one who has only a constructive possession. As
a disseizee would thus be able to recover his possession in both counties,
there seems to be no sound reason for saying that the same rule should not
apply to a tract of land lying in two counties that apply to a tract of land
lying in one county. In Hord v. Walker, supra, the court for authority relied
on Coke's statement that to revest seisin in a tract of land lying in two
counties there must be a reentry in each county. Coke on L1tt. 252 b. But
Coke was discussing seisin, not possession. It is submitted that the court in
the principal case might have arrived at the same conclusion in the absence
of any statutory provision relating to ejectment.
Ass1gnmentsInstruct1on to Debtor to Pay Debt to Th1rd Person.
A father told his sons that if they would pay the unpaid purchase money
debt evidenced by bonds he would give them his farm to belong to them
553
after his death. The sons promised to pay the debt. Thereupon the father
made a will devising to the sons the farm charged with the debt. The father
himself paid part of the debt before his death and informed the sons that
they were indebted to him in the amount paid. The sons admitted the debt
and offered to pay the father, but the latter refused payment, saying that he
wanted them to pay it to his daughters. The sons agreed with the father
that they would pay the daughters. Held, a gratuitous equitable assignment
to the daughters which remained executory and could not be given effect.
Poff v. Poff (Va., 192o), 1o4 S. E. 719.
The court thought that the transaction was not intended to operate as
a transfer in trust. Compare Russell's Executors v. Passmore (Va., 192oL
1o3 S. E. 652; 19 M1ch. L. Rev. 42o. If intended to take effect as an equitable
assignment, it must of course be executed to be binding upon the donor's
estate. An executed gift was thought impossible because there was no docu
mentary evidence of the debt. See Scott's Cases on Trusts, 168, note.
And of course an executory gift could not be given effect as a declaration
of trust. See ibid., 151, note. Would it have been possible, however, to decree
a constructive trust on the theory that the father refrained from adding a
codicil to his will in reliance upon the sons' promise to pay the daughters .'
See Ahrens v. Jones, 169 N. Y. 555; 13 Columb. L. Rev. 343.
Carr1ersThe Commod1t1es Clause of the Hepburn Act.In a suit
to dissolve the intercorporate relations between the Lehigh Valley Railroad
Co., the Lehigh Valley Coal Co., and the Lehigh Valley Sales Co. as a com
bination in restraint of trade in violation of the Anti-Trust Act, and also as
transporting coal over the line of the defendant's railroad in violation of the
commodities clause of the Hepburn Act, it was shown that the coal com
pany and the railroad company agreed to the organization of the sales com
pany, limiting subscriptions to the stock of the sales company to the stock
holders of the railroad company. The officers and directors of the three com
panies were so interlocked as to result practically in one management. The
coal company contracted to sell all of its coal to the sales company. Held,
that the arrangement "was a mere device to evade the commodities clause of
the Interstate .Commerce Act, and therefore void." Case remanded to the
District Court with instructions to enter a decree dissolving the combination
effected. U. S. v. Lehigh Valley R. Co. (U. S., Dec., 192o), 41 Sup. Ct. 1o4.
And so comes to grief another attempt to take advantage of the illusive
hope held out by Mr. Justice White in U. S. v. D. & H. Co., 213 U. S. 366,
in which it was said the inhibitions did not include "articles or commodities
manufactured, mined, produced or owned by a bona fide corporation in
which the railroad company is a stockholder." Events have abundantly justi
fied the prediction of Justice Harlan in his dissent that if this were permitted
it would be a device to evade the law. Justice, now Chief Justice, White
preserves his consistency, for in this case, as in U. S. v. Read1ng Co., 4o Sup.
Ct. 425, reviewed in M1ch. L. Rev., ante, page 221, he dissents from the doc
trine, though now he concurs with the decision as settled law. Fourteen years
have passed, and still the railroads are trying out devices, and perhaps they
554
MICHIGAN LAW REVIEW
can afford to continue the trials as long as the courts do not penalize them
for violation of the statute. This does not make respect for law, and pos
sibly it might have been better for all concerned if the court had at once
insisted that the railroad must completely separate itself from the mining
and selling of coal. Apparently, all the stock in an independent coal company
might have been sold to stockholders of the railroad company, provided the
new company had been actually independent and free from any control by
the corporation owning and operating the railroad. By this time much of
such stock would have changed hands, so that the stockholders of the two
companies would have been far from identical. This the railroad companies
evidently did not, and do not, desire. How can they let go, and also keep
hold, seems the problem they are still trying to solve. How long will the
courts give them to work on it ? For previous notes on the various attempts
made, see 14 M1ch. L. Rev. 49, 19 M1ch. L. Rev. 221.
Const1tut1onal LawCedar Rust Law Val1d Exerc1se of the Pol1ce
Power.The legislature of Virginia passed what is known as the Cedar Rust
Law, providing for the destruction of red cedar trees to prevent infection
of adjacent apple orchards. The state entomologist was required to make a
preliminary investigation. If he ordered the trees cut down, the owner was
allowed an appeal to the circuit court of the county where the trees were
located. The trees could not be destroyed until such hearing was finished.
The act also provided for compensation to be paid to the owner of the
destroyed trees. This appeal was brought as provided for by the statute, and
the owners assailed the constitutionality of the act on the ground that it was
a taking of property without due process of law. Held, a valid exercise of
the police power. Bowman v. Virginia State Entomologist (Va., 192o), 1o5
S. E. 141.
The Fourteenth Amendment to the Federal Constitution was not designed
to interfere with the power of the state to prescribe regulations to promote
the health, peace, morals, education and good order of the people, and to
legislate so as to increase the industries of the state, develop its resources,
and add' to its wealth and prosperity. Barbier v. Connolly, 113 U. S. 27.
There are, of course, limits beyond which such legislation cannot legally go.
If the act, therefore, has no real or substantial relation to the above objects,
or if it is a palpable invasion of rights secured by the fundamental law, the
courts may, and it is their duty so to adjudge, and thereby give effect to the
constitution. Mugler v. Kansas, 123 U. S. 623. But the legislature is allowed
a wide range of discretion in the matter, because, being familiar with local
conditions, it is primarily the judge of the necessity of such enactments.
Unless the act in question is unmistakably and palpably in excess of the
legislative power there is no ground for judicial interference. McLean v.
Arkansas, 211 U. S. 539. In the instant case it was clearly for the public
interest that apple orchards should be protected. It is not a case of injury
to human beings in the same proportion as is the menace of human disease,
but the principles involved are the same in both instances. A great many
statutes have been passed by Congress and the state legislatures, in the exer
555
cise of the police power, for preventing disease among animals. The decisions
are based on the effect of the disease on the animal industry itself. See note
to 43 L. R. A. (N. S.) 1o66, and cases therein cited. So also have statutes
been passed to prevent and eradicate diseases among agricultural growths of
various sorts, including orchards. See State v. Boehm, 93 Minn. 374, where
a statute which forbade owners from letting certain weeds go to seed was
upheld. In Balch v. Glenn, 85 Kan. 735, a statute was involved which pro
vided for the extermination of the San Jose scale and other orchard pests.
It was held that that was an appropriate exercise of the police power. For
other statutes of a similar nature which have been held constitutional, see
State v. Nelson, 22 S. D. 23; State v. Main, 69 Conn. 123; Colvill v. Pox, 51
Mont. 72; Louisiana State Board v. Tanzmann, 14o La. 756, and Los Angeles
Co. v. Spencer, 126 Cal. 67o. It was not necessary to the validity of the
statute in the instant case that compensation be provided. Commonwealth
v. Alger, 7 Cush. (Mass.) 53. Neither is the statute invalid because certain
persons derive special benefit from it, so long as all persons subject to it are
treated alike under the same conditions. Barbier v. Connolly, supra.
Const1tut1onal LawConst1tut1onal1ty of Statute to Conserve Nat
ural Gas.A statute of Wyoming declares that the use of natural gas for
products where the gas is burned without the heat being fully and actually
applied for other manufacturing or domestic purposes is wasteful and shall
be unlawful when the gas well is located within ten miles of any town or
industrial plant. It is aimed, very evidently, at the carbon black industry.
The plaintiff, a carbon black company, contending that the statute was beyond
the police power of the state and is discriminatory, sought an injunction to
prevent the officers of the state from enforcing the act. Held, the statute is
within the police power of the state, and injunction refused. Walls et. al. v.
Midland Carbon Co. ct al. (U. S. Sup. Ct., 1o2o), 41 Sup. Ct. Rep. 118.
The first problem in the principal case is the determination of whether the
conservation of natural gas or the prohibition of its waste is within the
police power of the state or is an arbitrary interference with private rights.
The nature of gas is peculiar. Unlike other minerals, it possesses the power
to move about. It has been held that the owners of the surface over a gas
field, while they have the exclusive right on their land to sink wells for the
purpose of extracting oil and gas, have no right of property therein until,
by actually bringing the oil and gas to the surface, they have reduced these
to physical possession. Ton-nsend v. State, 147 Ind. 624. But see 18 M1ch.
L. Rev. 463, et seq. The use by one surface owner affects the use of other
owners and an excessive use by one diminishes the use by others. Hence it
has been held that the police power of the state can be exercised for the
purpose of protecting all the collective owners, by securing a just distribution
of their privilege to reduce to possession and to reach the same end by pre
venting waste. Ohio Oil Co. v. Indiana, 177 U. S. 19o. Moreover, the public
as well as the surface owners have an interest to prevent the waste of oil
and gas, because in the preservation of these the well-being and prosperity
of the entire community is largely involved. Townsend v. State, supra. A
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MICHIGAN LAW REVIEW
number of states have enacted legislation for the conservation of their natural
resources, which has been held constitutional. An Indiana statute prohibited
the waste of gas or oil by escape from the well for more than two days
after the gas or oil had been struck. Ohio Oil Co. v. Indiana, supra. A
statute passed in New York for the preservation of mineral springs prohib
ited the pumping of mineral water to use in the manufacture of carbonic
acid gas. Lindsay v. Nat. Carbonic Gas Co., 22o U. S. 61. A California
statute for the prevention of waste of artesian waters provided that an
uncapped well was a nuisance. Ex parte Elam, 6 Cal. App. 233. A New
Mexico statute to prevent the waste of artesian waters declared a well, flow
ing without restriction and with a waste of water, to be a nuisance, and pro
vided for its abatement. Eccles v. Ditto, 23 N. M. 235. But see Huber v.
Merkel, 117 Wis. 368. The Maine court considered valid a proposed statute
for the prevention of freshets and droughts by the regulation and restriction
of the cutting of young trees on wild lands, when no beneficial use was to
be made of the trees or the land. Opinion of the Justices, 1o3 Me. 5o6. In
the principal case the plaintiff contended that the statute deprived him of
his property without due process of law. He showed that carbon could not
be made without dissipation of the heat evolved, that no other use could be
made of his plant and gas well. If, however, there is a proper police purpose,
a reasonable relation between the means used and the accomplishment of
that purpose, and a valid classification, the statute is a proper exercise of the
police power of the state, even though it results in depriving the owner of
all beneficial use of his property. The purpose of the statute in the prin
cipal case, the prevention of waste of natural gas, is within the police power
of the statethe promotion of the general welfare and prosperity. Ohio OH
Co. v. Indiana, supra. The means chosen in this case are reasonable to
accomplish such purpose. The inefficiency of the carbon black industry is
very high. Preventing such wasteful methods conserves the gas supply. The
statute is not unconstitutional as depriving the owner of his property without
due process of law. The classification in the statute is made upon a reasonable
basis, not arbitrarily. It excepts from its operation any gas well more than
ten miles from a town or industry. The ground for such provision being
that a well that distance from a town would not interfere with the supply
of gas from which the town drew. A classification having some reasonable
basis does not offend against the equal protection of the laws clause merely
because it is not made with mathematical nicety. Lindsey v. Carbonic Gas
Co., supra. Acts for the conservation of natural resources are within the
purposes of the police power of the state and are most commendable. The
statute here prevents the production of a commodity whose inevitable effect
was to exhaust the gas supply shortly.
Const1tut1onal LawDower not a "Pr1v1lege or Immun1ty" w1th1n
the Const1tut1on.A statute limited the right to dower in lands within the
state in case of non-residents to lands of which the husband died seized.
This was attacked as abridging the "privileges or immunities" of citizens,
557
but held constitutional. Ferry v. Spokane, P. & S. Ry. Co. et al (C. C. A.,
9th Circ., 192o), 268 Fed. 117.
The decision here can be sustained upon the principle of public policy
that the court reasonably assumes was the basis for the adoption of the statute
in 1854. The pattern statute was passed in Michigan in 1846, which was
first interpreted that the non-residence was to be at the time of husband's
death. Pratt v. Tefft, 14 Mich. 191. It was later construed to be as at the
time of conveyance. Ligare v. Semple, 32 Mich. 438. Wisconsin and Nebraska
also adopted the Michigan statute and the later interpretation given it. Ekegren v. Marcotte, 159 Wis. 539; Atkins v. Atkins, 18 Neb. 474. In Kansas a
similar statute specifically states that the non-residence is to be the time of
death, 2942. Now the states are knit closer together by means of rapid
intercommunication, so that the difficulty of obtaining the wife's signature
is greatly lessened. There will be cases of actual injustice, but it is better
that the vendee should always get a clear title when he buys from one whose
marital circumstances he cannot learn than that he should never be sure of
his title until after the vendor's death the Statute of Limitations has run.
"It is against public policy to allow restraints to be put upon transfers which
public policy does not forbid." Also, it is a recognized principle of law that
the disposition of unmovable property is exclusively subject to the govern
ment within whose jurisdiction the property is situated. U. S. v. Fox, 94
U. S. 315. The constitutionality has been questioned several times and the
statutes always have been held good, and properly so for the reasons above
pointed out. Not all of these are mentioned by the court, which relies largely
upon citation of authority. The comment of the court upon part of the
appellant's argument is, besides erroneous, very apt to be misleading as to
the basis of the decision. The reason the law, by which a state imposes upon
citizens of another state a tax upon their right of inheritance, which it does
not impose upon its own citizens, is invalid, is that it conflicts with U. S.
Rev. St., Sec. 1978. In re Stanford's Estate, 54 Pac. 259. It is not that the
right of inheritance is more fundamental than the right of dower. The right
of inheritance is not a natural and inherent right. Dawson v. Godfrey, 4
Cranch 321 ; Knowlton v. Moore, 178 U. S. 41 ; Crane v. Reeder, 21 Mich. 24.
For other cases, see 9 L. R. A. (N. S.) 121. Nor is the right of dower a
natural right, but it is founded on the law. Randall v. Kreiger, 23 Wall. 137.
Other cases will be found cited in 9 R. C. L. 563. Thus, while bcth inheri
tance and dower are favored by the law, both are creatures of the law and
stand on the same footing, so neither, as such, is "privileges or immunities"
and protected by the constitution. The invalidity of the law concerning the
inheritance tax was based upon statute. Thus, though the dicta of the case
are wrong and confusing, the decision itself is correct.
Const1tut1onal LawKansas Ant1-c1garette Law.The act makes it
unlawful to barter, sell or give away cigarettes or cigarette papers and also
unlawful to keep them in a store or other place for barter, sale or free dis
tribution. It provides that upon proper complaint there may be a search for
and seizure and confiscation of such articles found. There is also a provision
558
MICHIGAN LAW REVIEW
that the possession of the prohibited article shall be considered prima facie
evidence of a violation of the act. The defendant was convicted of both
selling and keeping of the prohibited articles. He appeals on the ground that
the act violates the equal protection and due process clauses of the Four
teenth Amendment. Held, the act is within the police power of the state and
docs not violate the Fourteenth Amendment. State v. Nossaman (Kan ,
192o), 193 Pac. 347It has been held that the restriction or prohibition of the sale of cigar
ettes by a state, for the protection of the public health and welfare, is within
the police power. Austin v. Tennessee, 179 U. S. 343; Cook v. Marshall
County, Iowa, 196 U. S. 261 ; see also 4 M1ch. L. Rev. 124. There is sufficient
ground for the classification by the legislature of cigarettes from other forms
of tobacco, as being a special menace to the health and welfare of the people.
Gundling v. Chicago, 177 U. S. 183. In the principal case the defendant con
tended that the provision of the statute making possession of cigarette mate
rials prima facie evidence of a violation is a denial of due process. "That a
legal presumption of one fact from evidence of another may not constitute
a denial of due process of law or a denial of equal protection of the laws,
it is only essential that there shall be some rational connection between the
fact proved and the ultimate fact presumed, and that the inference of one
fact from the proof of another shall not be so unreasonable as to be a purely
arbitrary mandate." Mobile, J. Sr K. C. R. Co. v. Turnipseed, 219 U. S. 35,
sustaining a statute making injuries inflicted by the running of trains prima
facie evidence of negligence on the part of the railroads. The prima facie
rule of evidence in the principal case complies with the above requirements.
The inference of a violation of the statute from proof of possess1on is not
so unreasonable as to be arbitrary. There is an administrative necessity for
such a rule of evidence. With what intent or purpose the accused has cigar
ettes in his possession is a matter peculiarly within his knowledge. If 'his
purpose is not unlawful he may easily rebut the inference, while the state
would find it almost impossible to prove an unlawful purpose. When a state,
exerting its recognized authority, undertakes to suppress what it is free to
regard as a public evil, it may adopt such measures having reasonable rela
tion to that end as it may deem necessary in order to make its action effective.
Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192. As said in St. John v.
New York, 2o1 U. S. 633, "Not only the final purpose of the law must be
considered, but the means of its administrationthe ways it may be defeated.
Legislation to be practical and efficient must regard this special purpose as
well as the ultimate purpose." See also Silz v. Hcsterberg, 211 U. S. 31.
Const1tut1onal LawPr1v1leges anp Immun1t1esL1m1tat1on Only
upon State Law.Defendants were indicted for forcibly transporting a
number of persons out of the State of Arizona and warning them against
returning by threats of violence. Held, no violation of the "privileges and
immunities" clause of the Federal Constitution (Art. IV, Sec 2), as this
section is directed only against state action and not against that of individ
559
uals. United States v. Wheeler ct al. (U. S. Sup. Ct., 192o), October term,
Case No. 68.
The right of a citizen of one state to dwell peacefully in any other state
and to have free ingress to and egress from such other state is unquestion
ably one of the privileges and immunities guaranteed by Article IV, Section
2 of the Federal Constitution. Paul v. Virginia, 8 Wall. 168. Such a right
existed by virtue of comity between the states even before the adoption of
the Constitution. Art1cles of Confederat1on, Article IV. And has since
been repeatedly included by the courts in the category of rights protected
by the privileges and immunities clause. Paul v. Virginia, supra; Ward v.
Maryland, 12 Wall. 418; Slaughter House Cases, 16 Wall. 36; Corfield v.
Coryell, 4 Wash. C. C. 371. The question involved in the principal case is
whether the inhibit1on of this clause extends to individual action in deroga
tion of the rights described, or merely applies to acts by the states themselves.
In holding that the limitation is only upon state action the court relies upon
the authority of United States v. Harris, 1o6 U. S. 629. In that case the
question was fairly raised by an attack upon the constitutionality of a fed
eral statute (R. S., Sec. 5519) punishing by fine or imprisonment any two
or more persons who should "conspire or go in disguise upon the highway
or on the premises of another for the purpose of depriving * * * any person
or class of persons * * * of equal privileges or immunities under the laws."
In holding that there was no authorization for this statute to be found in
Article IV, Section 2 of the Federal Constitution, Mr. Justice Woods, speak
ing for the court, said : "But this section, like the Fourteenth Amendment,
is directed against state action. Its object is to place the citizens of each
state upon the same footing with citizens of other states, and' inhibit discrim
inative legislation against them by other states." Citing Paul v. Virginia,
supra. All that Paul v. Virginia decided with respect to Article IV, Section
2, was that corporations were not citizens within the meaning of that clause.
Nor does the view announced find any support in the Slaughter House Cases,
except by way of dicta. Further, there is sufficient difference in the wording
of the article in question and the Fourteenth Amendment to warrant the
conclusion that a greater power was delegated to the Federal Government in
the former than in the latter. In view of the more general phraseology of
the article involved it seems that it might reasonably be construed to be an
express delegation of full power to the Federal Government to' protect the
privileges and immunities of the citizens of the several states as well against
infringement by other citizens as by the states themselves. Such a construc
tion would do no violence to the language used, and would, it seems, render
more complete and effective the protection of the fundamental rights which
are sought to be safeguarded.
ContractsDeuvery 1n InstallmentsResc1ss1on Just1f1ed by NonPayment of Installment.The plaintiff's assignor agreed to sell and the
defendant agreed to buy a quantity of paper to be delivered in installments,
the terms of payment being "3%3o days." The defendant failed to pay for
one of the installments as it came due, and the seller refused to make further
5&o
MICHIGAN LAW REVIEW
deliveries. Held, such a breach of the contract as justified the seller's refusal
to make further deliveries. Auer & Twitchell v. Robertson Paper Co. (Vt.,
192o), 111 Atl. 57o.
It is settled by the weight of authority in this country that in contracts
for the sale of commodities to be delivered in installments, the price to be
paid on delivery or at fixed periods, default in payment of one of the install
ments, which is not waived byUhe seller, justifies the other party in rescind
ing the contract and refusing to make further deliveries. Harris Lumber Co.
v. Wheeler Lumber Co., 88 Ark. 491 ; Baltimore v. Schaub Bros., 96 Md. 534:
Ross-Meehan Foundry Co. v. Royer Wheel Co., 113 Tenn. 37o. Generally the
same rules apply where there is a failure to deliver in accordance with the
terms of the contract. Cleveland Rolling Mills v. Rhodes, 121 U. S. 255.
Morrison v. Leiser, 77 Mo. App. 95. Though some cases have made a dis
tinction between defaults by the buyer and defaults by the seller. Norringtcn
v. Wright, 115 U. S. 188. The minority rule, which is that of the English
courts, holds that such a default in payment will not justify rescission by the
seller unless there was an intent on the part of the buyer to repudiate the
whole contract. West v. Betchell, 125 Mich. 144 (containing an exhaustive
review of the English authorities) ; Beatty v. Howe Lumber Co., 77 Minn.
272; Meyer v. Wheeler, 65 la. 39o. The leading English case is Mersey Steel
& Iron Co. v. Naylor, 9 Q. B. Div. 648, emphasizing the "evincing of an inten
tion no longer to be bound by the contract." Whatever may be the merits
of these conflicting views, the result reached in the instant case seems entirely
satisfactory. The contract clearly contemplated the prompt payment of each
invoice as it fell due, and the buyer's arbitrary refusal to pay his back install
ment until the next delivery had been made would seem to be a sufficient
justification for the plaintiff's withdrawal from the contract.
ContractsIdent1ty oe Contract1ng Party a Mater1al Element.
Plaintiff, desirous of attending the opening performance of a play, applied
twice for a ticket. Because of some past trouble between him and the theatre
management the applications were refused. Plaintiff thereupon secured a
ticket through the agency of one Pollock, to whom the management was will
ing to sell. When plaintiff presented himself at the theatre on the evening
of the performance the attendants, acting upon the direction of the defendant,
the managing director of the company operating the theatre, refused him
admission, offering to refund the purchase price. In action for damages for
wrongfully and maliciously inducing the company to break its contract, held
(1) plaintiff had no contract, and (2) semble, even if he did, defendant, a
servant of the company, having acted bona fide within the scope of his
authority, could not be held liable. Said v. Butt, [192o] 3 K. B. 497.
As to rights of ticket holders expelled from theatre seals, see Hurst v.
Picture Theatres, Ltd. [1915], 1 K. B. 1. In the principal case it seems to be
assumed that the Hurst case applies to ticket holders refused admission as
well as to those ejected. See discussion of the Hurst case in 13 M1ch. L.
Rev. 4o1. The effect as to the formation of a contract or completion of a
sale of a mistake as to the identity of the other party to the transaction is
561
discussed in 18 M1ch. L. Rev. 7o9. See Cunday v. Lindsay, 3 App. Cas. 459;
Phillips v. Brooks [1919], 2 K. B. 243; Edmunds v. Transportation Co., 135
Mass. 283 ; Rodliff v. Dallinger, 141 Mass. 1 ; 35 Law Quart. Rev. 288. In
arriving at its conclusion that there was no contract the court applies the
principle laid down by Pothier in Tra1te I'ES Obl1gat1ons, s. 19. "Whenever
the consideration of the person with whom I am willing to contract enters
as an element into the contract which I am willing to make, error with regard
to the person destroys my consent and consequently destroys the contract,''
etc. Essentially the same principle is laid down in Fry on Spec1f1c Per
formance, Sec. 229, and has been recognized and applied in many English
-cases. McCardie, J., however, confessed "that the question is one of diffi
culty," and therefore gave consideration to the other point involving the
limits of the rule of Lumley v. Gye, 2 E. & B. 216, when sought to be applied
to a case wherein the defendant was the agent of the party breaking the con
tract. The conclusion on this point would seem to be equally sound with
that on the first.
CostsAllowance of Costs for Br1ef Excess1ve 1n S1ze.On affirm
ance of a judgment where the respondent filed a brief of forty-six printed
pages, quoting extensively from the testimony found in the abstract, held,
that respondent be allowed costs for brief not in excess of twenty pages, as
this was, in the judgment of the court, sufficient in which to make a state
ment of facts and to discuss the legal questions involved. Fossali v. Gardella
(Utah, 192o), 193 Pac. 641.
The courts have consistently held to the theory that costs are given as a
reimbursement for necessary expenses and not as an instrumentality to make
it perilous for a party to come into court, and for this reason the courts seek
to keep the costs as small as possible. Where the transcript of a record is
unnecessarily long the losing party should not be required to bear the burden.
Stephenson v. Chappell, 12 Tex. Civ. App. 296. The losing party is not to
be assessed with the costs of a brief that is unnecessarily prolix. Cobb v.
Hartenstein, 47 Utah 174. In Wilson v. Pontiac Raihvay Co., 57 Mich. 155,
the bill of exceptions was too voluminous and the costs of the losing party
were reduced. Just what makes a record or brief too prolix is largely a
question to be determined upon the circumstances surrounding the particular
case. The Michigan court rules provide that the record on appeal shall be
reduced to narrative form rather than be reported by question and answer,
and where the record is not made in narrative form, when such form is suit
able, the costs will be reduced. Ruttle v. Foss, 161 Mich. 132. The Wisconsin
court rules provide for an abstract of necessary parts of a record on appeal,
and where unnecessary parts are included in the abstract the costs will be
reduced. IVilley v. Lewis, 113 Wis. 618. Testimony of witnesses on which
no question was raised below is unnecessary matter. Geo. W. Roby Lumber
Co. v. Gray, 73 Mich. 363. Printing a motion for a new trial when such
motion is not reviewable is unnecessary matter for which no costs will be
allowed. Nederland Ins. Co. v. Hall, 86 Fed. 741. Where the brief contained
large reprints of the abstract, the costs were reduced. Steele v. Crabtrec.
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MICHIGAN LAW REVIEW
13o Iowa 313. If the appellant's abstract or record on appeal might by

proper condensation be shortened, the court may reduce the costs. Haughton
v. Bilson, 84 Kan. 88o. There are two ways in which the courts restrict
costs: they either refuse any costs on the defective record or make an arbi
trary reduction for unnecessary matter. The cases uniformly hold that
where the whole record or brief is unnecessary, or where it is so defective
that it must be stricken from the files, or where an additional brief or record
is required because of the prevailing party's own negligence, no costs what
ever are allowed therefor. In re Wetmore, 6 Wash. 271 ; Hankwitz v. Bar
rett, 143 Wis. 639; Huntley v. Chicago R. Co., 142 Iowa 6o7; Treat v. Hiles,
76 Wis. 367; Mann v. Hefter, 128 N. Y. Supp. 663; Finlen v. Heinse, 28
Mont. 548; Dufur v. Paulson, 11o Wis. 281; Bonato v. Peabody Coal Co.,
143 Ill. App. 163. The courts also uniformly hold that where a necessary
brief or record) contains unnecessary matter and the court allows it to remain
on the files, deduction will be made only to cover the costs on that part which
is unnecessary. Cobb v. Hartenstein, supra; Wilson v. Ponttac Railway Co.,
supra; Lever v. Thielke, 115 Wis. 389; Spang v. Robinson, 24 W. Va. 327.
See 5 Stand. Cyc. of Proc. 1oo4.
DeathC1v1l Act1onInterpretat1on of "Ch1ld."A statute gave a
right of action in case of death by wrongful act to the child or children of
the deceased. Plaintiff's father and mother were married in accordance
with the tribal ceremonies of the Tunica Indians, of which tribe they were
members, but the law of Louisiana does not recognize such marriage. Plain
tiff's mother having been killed, through the alleged negligence of the defend
ant, he brought action under the statute. Held, no cause of action, for the
word "child" in the statute means legitimate child. Youchican v. Texas &
P. Ry. Co. (La., 192o), 86 South. 551.
Authority for the above view is found in Lynch v. Knoop, 118 La. 611;
McDonald v. Southern Ry. Co., 71 S. C. 352; Good v. Towns, 56 Vt. 41o:
Harkins v. Philadelphia & Reading Ry. Co., 15 Phil. 286; Dickinson v. Ry.
Co., 2 H. & L. (Exch.) 735. In most of these cases the position of parent
and child is reversed, but the same interpretation prevails and the mother is
denied recovery for the death of her illegitimate child. In Galveston, H. ft
S. A. Ry. Co. v. Walker, 48 Tex. Civ. App. 52, twe illegitimate children
recovered for the death of their mother, but the court seems to rely some
what on a statute abolishing the rule that statutes in derogation of the
common law are to be strictly construed. In Muhl's Adm'rs v. Mich. South.
Ry. Co., 1o Ohio St. 272, the court clearly indicates that illegitimacy should
not bar plaintiff's recovery, but such construction was not absolutely neces
sary to the disposal of the case. There is considerable solid authority, how
ever, for the doctrine that under such statute the mother can recover for
the death of her illegitimate child. Security Title & Trust Co v. West
Chicago St. Ry. Co., 91 Ill. App. 332; Marshall v. Wabash Ry. Co., 12o Mo.
275. The statement of the court to the contrary when this last case was
before the Federal court, 46 Fed. 269, is pure dictum. In Kenney v. Seaboard
563
Air Line Ry. Co., 167 N. C. 14, affirmed in 24o U. S. 489, plaintiffs recovered
as next of kin for the death of their half-brother, an illegitimate son of their
mother. In nearly all American jurisdictions, including all states from
which citations are given above, except South Carolina, a bastard can inherit
from his mother, and vice versa. The sole justification of the instant case
would seem to be in precedent. It is out of harmony with the present tend
ency in the legal attitude toward bastards, in which tendency common law
jurisdictions are more tardy than other civilized countries. See 16 Col. L.
Rev. 698. The old common law policy of preventing illicit intercourse by
making neither party, and neither party's property, responsible for the sup
port and education of the innocent product thereof, hardly commends itself
to reason or sense of justice. The line of authorities last noted above shows
one more step toward the time when the law will cease to penalize the child
for the wrong of its parents, and this step is taken by decision, not special
legislation. For the most progressive American legislation in this field see
Laws of North Dakota, 1917, page 8o.
DeedsAttempted Del1very 1n Escrow to the Grantee.Pursuant to
a contract to marry her so soon as he lawfully might P hands to C, a recent
divorcee, a deed to certain landsaid deed being absolute on its facewith
the oral stipulation that the deed should not be recorded or be operative
unless P should fail to marry C. A third party has the deed recorded con
trary to the express wish of C. P marries C. C dies, leaving as her heirsat-Iaw P and B, daughter by her first husband. B dies, leaving as her heirsat-law Dl, her husband, and D2, her father (C's first husband). P brings bill
in equity against D1 and D2 to remove cloud from title to land described in
the deed. Held, since neither P nor C intended the deed as a presently opera
tive conveyance, there was neither delivery nor acceptance and title did not
pass. Mitchell v. Clem (Ill., 192o), 128 N. E. 815.
In a case very similar as to delivery the stipulation was that the deed
should not be operative. until the purchase price should be paid; no payments
were made; the grantor retook possession and the unrecorded deed was
destroyed. A judgment creditor of the grantee sought to attach the land.
The court held that by the handing over to the grantee of the deed absolute
on its face title passed regardless of the oral condition. Creditor's right was,
of course, subject to the grantor s prior lien for the purchase price. Bank
v. Anderson (Kentucky Court of Appeals, 192o), 225 S. E 361. Both courts
announce the rule that a delivery cannot be made to the grantee in escrow.
The Illinois court has held very consistently that such a delivery is absolute.
Blake v. Ogden, 223 Ill. 2o4, and cases cited therein. But confronted with
a hard case, the court finds its way out by saying that there was no delivery
at all. This seems to be giving effect to the oral condition, for one can
hardly doubt that the court would have found sufficient delivery if the
grantor had died without marrying the grantee. It is suggested that the
court might frankly admit that it will give effect to oral conditions when
they can be clearly proved, as did the Supreme Court of Virginia recently.
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MICHIGAN LAW REVIEW
Whitaker v. Lane, 1o4 S. E. 252, 19 M1ch. L. Rev. 343. For full note on
the subject by Professor Ballantine, see 3 In. Law Bull. 3, 29 Yale Law
Journal 826.
D1vorceSpec1f1c Port1on of Husband's Estate Cannot Ord1nar1ly
be Awarded as Al1mony.In a divorce proceeding the wife had been granted
$3o per month alimony ; on appeal, she asked that this portion of the decree
be reversed and that she be allowed to remain in the home of the husband,
which consisted of a house and twenty-four acres of land and was his sole
real estate. Held, a wife is not entitled to have any specific parcel of real
estate assigned as her own. Alimony is usually an allowance of money out
of the husband's estate, but not the estate itself. Lovegrove v. Lovegrovc
(Va., 1o2o), 1o4 S. E. 8o4.
Permanent alimony after the dissolution of the marriage status is wholly
a creation of the written law. It was not known to the common or eccle
siastical law. Bacon v. Bacon, 43 Wis. 197; Brenger v. Brenger, 142 Wis. 26,
26 L. R. A. (N. S.) 387. However, in construing the statutes the courts
have from the first been influenced by the English practice, under which the
courts gave the wife an allowance only, and such a thing as partition of
estate was unknown. Bacon v. Bacon, supra. In many states such an allow
ance is expressly provided for by statute. 19 C. J. 26o. Such a statute in
Ohio, providing that "the court shall allow such alimony out of the hus
band's property as- it deems reasonable, etc.," raised a doubt as to whether
this effort to enlarge the power of the court had not in fact resulted in cut
ting its authority down so that it could give only specific property as alimany. A discussion of Lap? v. Lope, 124 N. E. 51, which involves this par
ticular statute, is found in 18 M1ch. L. Rj-:v. 6o. See also 18 M1ch. L. Rev.
799, for a discussion of a Kansas case. Nixon v-. Nixon, 188 Pac. 227, which
involves a similar statute. In the absence of such statutes, the holding of
the principal case is without doubt the majority rule; although there is a
conflict of authority. This rule is based on the proposition that the claim
of the wife for alimony is a personal claim on the husband. Almond v.
Almond, 4 Rand. (25 Va.) 668, 15 Am. Dec. 781. Therefore, it comes under
the general principle that chancery courts have no inherent power to declare
liens against real estate to secure debts which mav be established against the
person. Perkins v. Perkins, 16 Mich. 162. There are cases which, although
they recognize as law the rule of the principal case, do set aside specific
property for the wife out of regard for the special equities of a particular
case. Instances of this arise where the property has been purchased with
the wife's money or has been acquired largely or wholly as a result of her
earnings, industry, or frugality. Mussing v. Mussing, 1o4 Ill. 126. This,
however, is a different case from one in which provision for her support is
made solely on the grounds that a man is in duty bound to support his wife
that is, where the property is granted to her as a result of her status as
wife. Champion v. Myers, 2o7 Ill. 3o8, 31o.
565
Ev1dencePossess1on of Stolen PropertyPresumpt1on.In a prose

cution for receiving stolen property, an instruction that "the finding of stolen
property in the possession of another shortly after said property had been
stolen raises the presumption of guilt as against the person in whose posses
sion the same is found * * *" was held not erroneous when considered with
other instructions. State v. Ross (N. D., 192o), 179 N. W. o93.
In a prosecution for grand larceny, an instruction "that the possession
of property recently stolen and unexplained by the defendant affords pre
sumptive evidence of his guilt" was held erroneous, such language being an
instruction on the weight of evidence. Pearrow v. State (Ark., 192o), 225
S. W. 31 r.
The great majority of the courts deny that any legal presumption attaches
to the unexplained possession of property in cases similar to those above,
agreeing that the weight of such evidence is to be determined solely by the
jury. Of these, probably the greater number hold such unexplained posses
sion in itself warrants a conviction by the jury. Kurpgeweit v. State, 97
Neb. 713; Blackburn v. State, 78 Tex. Cr. R. 177; Mosley v. State, 11 Ga.
App. 3o3; State v. Perry, 165 Iowa 215. Others hold' that the mere fact of
unexplained possession alone will not warrant a conviction. People v. Roderiquez, 16 Cal. App. 358; State v. Trosper, 41 Mont. 442. A few support
the doctrine that a legal presumption of guilt attaches. State v. Turner, 65
N. C. S92; State v. Good, 132 Mo 114. Though these rules are quite differ
ent, the instructions of the courts supporting the doctrine that no presump
tion of law attaches show a misleading and unfortunate confusion of terms.
These courts, as in the principal cases, frequently speak of a "presumption
of guilt," "presumptive evidence of guilt," "prima facie evidence of guilt,"
eta, failing to point out clearly the difference between a presumption of
law and a so-called "presumption" or inference of fact. The former requires
a jury, in the absence of evidence to the contrary, to find according to the
presumption; the latter allows the jury to draw its own conclusion regarding
the ultimate fact. The first involves a compulsory conclusion made by law;
the second, a "permissible deduction" by the jury. Instructions similar to
those mentioned are likely to cause the jury to find in accordance with the
"presumption" laid down by the court, though the latter intends to allow
them merely an inference of fact. Unless very carefully qualified and
explained so that the ordinary jury can understand, such instructions can
most safely be held erroneous. See W1gmore on Ev1dence. Sec. 2513, and
12 L. R. A. (N. S.) 199.
Extraterr1tor1al1tyEasements of L1ght and A1r 1n Ch1nese Law.
According to a recent decision of the British Consular Court, there is no
easement of light and air by implied grant in the law of China. A British
subject owned a house and lot in Shanghai in 1868. He sold the house and
part of the lot to another British subject and the adjoining unoccupied part
of the lot to a German subject. In 192o the owner of the house applied to
the Consular Court for an injunction to restrain the owner of the adjoining
566
MICHIGAN LAW REVIEW
unoccupied part from interfering with an easement of light and air. Under
similar circumstances the English law would recognize an easement of light
and air arising by implied grant. Palmer v. Fletcher, I Lev. 122; Allen v.
Taylor, 16 Ch. D. 355. But this suit involved an interest in land, and so
had to be decided according to the lex loci rel sitae, i. e., the law of China.
Charlesworth, Pilling & Co. v. Seeretary of State for Foreign Affairs (19o1),
A. C. 373. No mention could be found of any such easement in any known
Chinese law. The court was inclined to regard the theory of implied grant
as something which had developed m English law to meet local needs, and
it doubted whether any such theory existed in Chinese law in 1868. Even
in English law the implied grant is a p1esumption which may be rebutted by
showing extraordinary circumstances. The court thought that diversity of
nationality among dominant and servient owners might be regarded as an
extraordinary circumstance in an extraterritorial country. The injunction
was denied, leave being granted to appeal to the Privy Council. Tam Wa
e1 al. v. Atkinson & Dallas (Nov., 192o), H. B. M. Supreme Court for China
and Corea.
Intox1cat1ng L1quorsWhat 1s a BeverageQuest1on of Fact.The
defendant was indicted for selling Jamaica ginger containing 88 per cent
alcohol, under a statute providing that "any beverage which contains more
than one per cent of alcohol * * * shall be deemed to be intoxicating liquor
within the meaning of this chapter." Held, the mere presence of a high per
centage of alcohol did not make thfe preparation an intoxicating liquor under
the statute, without a further finding by the jury that it could be and ordi
narily was used as a beverage. Commonwealth v. Sookey (Mass., 192o'),
128 N. E. 788.
Whether a liquid containing an alcoholic content capable of producing
intoxication, but which is not ostensibly sold as a beverage, is within a pro
hibitory statute depends largely, of course, upon the terms of the particular
statute. Thus, where a statute makes it unlawful to sell "any intoxicating
decoction, mixture, compound, or bitters whatever, in any quantity or for
any use or purpose," medicines, toilet preparations, etc., are included, although
sold in good faith and not ordinarily used as beverages. Compton v. State,
95 Ala. 25. But in prosecutions for violations of other statutes expressly
including such liquids, where the prohibition is simply against the sale of
the same as beverages, the question of intent is controlling. Walker v. Daily,
1o1 Ill. App. 575; State v. Hastings, 2 Boyce (Del.) 482; Bertrand v. State,
73 Miss. 51. See also Schemmer v. State (Neb., 192o), 18o N. W. 581. Under
statutes like that involved in the principal case, employing merely general
descriptive terms such as "alcoholic liquor," "intoxicating liquor," or "intoxi
cating beverage," in addition to the question of the actual alcoholic content
of the liquid, the additional question arises as to whether 1t is a beverage
or liquor within the meaning of the statute. One court has said that a fluid
is within the statute only when it is a liquor intended for use as a beverage,
and capable of being so used, which contains alcohol in such a proportion
567
that it will produce intoxication when taken in such quantities as may prac
tically be drunk. Sandoloski v. State, 65 Tex. Cr. R. 33. Generally, how
ever, it is immaterial whether the decoction was intended for use as a bev
erage, provided it is capable of use as such, and is sold in evasion of the
prohibitory legislation. State v. Kczer, 74 Vt. 5o. But the presumption is
that medicinal, toilet and culinary preparations, recognized as such by stand
ard authority (such as the United States Dispensary), and not reasonably
capable of use as intoxicating beverages, are not ordinarily to be regarded
as within the meaning of the statute. Mason v. State, 1 Ga. App. 534. Still,
the presumption may be rebutted and such products be found to be within
the statute. State v. Intoxicating Liquors and Vessels, 118 Me. 198. Except
in clear cases where the principle of judicial notice may be invoked, Mundy
v. State, 9 Ga. App. 835, the question whether a given liquid is or is not a
beverage is for the jury. State v. Miller, 92 Kan. 994, L. R. A. 1917 F, 238,
and cases there collected.
JudgmentsAbsence of Counsel as Unavo1dable Casualty Excus1nc
Default.Counsel was engaged and put in possession of all the facts and
records necessary for the defense of an expected suit. Because of illness
in his family, such counsel was excused from attendance at the regular term
of chancery court and informed there would be no special term by the chan
cellor. The expected suit was commenced in his absence. The party, relying
upon his counsel, did nothing more than leave a copy of the summons served
upon him at the office of his counsel. In the absence of any appearance judg
ment by default was taken. An action was brought to set aside the judg
ment on the grounds of "unavoidable casualty or misfortune preventing the
party from prosecuting or defending," as provided by statute. Held (McCullough, J., dissenting) : It was through the acts of the court that the party
did not defend, and this was unavoidable casualty. Judgment vacated. Berringer v. Stevens (Ark., 192o), 225 S. W. 14.
Under a like statute, the absence of counsel because of his own negli
gence was held not to be "unavoidable casualty" as would justify setting
aside of a judgment taken by default. Wagner v. Lucas (Okla., 192o). 193
Pac. 421.
Statutes providing for vacating of judgments by default because of
unavoidable casualty or misfortune or excusable neglect are common. Pure
negligence or lack of diligence is not unavoidable casualty within the mean
ing of the statute. Sparks v. Ober & Sons Co., 138 Ga. 316; Gooden v.
Lewis, 1o1 Kan. 482. Vacation of the judgment has been refused where:
answer not made because of forgetfulness, Jones v. Bibb Brick Co., t2o Ga.
321 ; attorney was not obtained because of lack of diligence, Forest v. Appelget, 55 Okla. 515; train missed and appeal forgotten, Nye v. Sochor, 92 Wis.
4o. Unavoidable casualty is rather some event which human foresight, pru
dence or sagacity could not prevent. Courts have held as grounds for vacat
ing judgments such acts as: sickness, Liggett v. Worall, 98 la. 529; miscar
riage of the mails, Chicago, R. I.
Pac. Co. v. Eastham, 26 Okla. 6o5 ; rail
568
MICHIGAN LAW REVIEW
road accident delaying attorney. Omro v. Ward, IQ Wis. 233; accidental shoot
ing preventing appearance, Harcis v. Begley, 129 Ky. 477; party insane,
Southern Nat. Life Ins. Co. v. Ford's Admr., 151 Ky. 476; party imprisoned,
Bonell v R. W. & 0. R. R. Co., 12 Hun. 218. There is a relation of prin
cipal and agent between client and counsel. So the neglect of the attorney
in permitting judgment to be taken against his client is the neglect of the
client and cannot be urged as grounds for vacating the judgment. Moore v.
Horner, 146 Ind. 287: Ham v. Person, 173 N. C. 72. Even when the client
is free from all fault. Phillips f-r Co. v. Collier, 87 Ga. 66. So, toi, when
the neglect of the attorney is excusable, this is as much available as grounds
to set aside the judgment as though 't had been the excusable conduct of the
party. Mclde v: Reynolds, 129 Cal. 3o8- Collier v. Fit:pa'rick, 22 Mont. 553.
A few courts hold the neglect of counsel may be considered surprise or
unavoidable casualty on the part of the client, and vacate the judgment.
Swathney v. Savage, 1o1 N. C. 10';. It seems that the party must assume the
risk of selecting a careful and diligent attorney. Each party is entitlec1. *o
his day in court, but both must take advantage of his opportunities and be
diligent in prosecuting or defending. If one party is negligent the othc:
party should not be put to further inconvenience and the risk of losing his
judgment by the setting aside of that judgment and a new trial. But if one
party suffers unavoidable casualty or misfortune, such is a proper basis for
setting aside the judgment. The negligence of counsel should not be con
sidered unavoidable casualty. Just what facts show such misfortune is a
question over which the courts are in confusion. The decision must of neces
sity be left largely to the discretion of the trial court. Upon these principles
the principal cases appear to be correctly decided. In the Oklahoma case
mere neglect of counsel was not considered unavoidable casualty. On the
other hand, in the Arkansas case there was no negligence on the part of
counsel or party, but rather an event which human foresight could not pre
vent, the mistake of the court. See also Hodges v. Alexander, 44 Okla. 598;
Anaconda Mining Co. v. Saile, 16 Mont. 8.
Master and ServantEmployer Contfact1ng w1thout Expectat1on
of Prof1t Merely to Prov1de Doctors for Employees nor L1able for Mat
ter's Negl1gence 1n Attend1ng Them.A coal company employed a physi
cian to give medical treatment to its employees, deducting a small sum each
month from their wages, out of which his salary was paid. The company
itself derived no profit from the fund. In an action by the administrator of
an employee for damages on account of the negligence of the physician so
employed which resulted in the death of the plaintiff's intestate, held, that
the company was not liable in the absence of a showing of lack of ordinary
care in the selection of the physician, or a retention with knowledge of
incompetency. Virginia Iron, Coal & Coke Company v. Odlc's Admr. (Va.,
192o), 1o5 S. E. 1o7.
In the absence either of an express contract on the part of the employer
to furnish skilled medical treatment, or a profit accruing to the latter from
569
wage deductions, most cases support the result reached in the principal case,
though not all are consistent as to the underlying theory. Whether the
employer contributes all, part, or nothing to the support of the physician,
the result is <he same, providing he receives no profit from the arrangement,
and he is liable only for failure to use reasonable care in employing a com
petent physician or for the retention of one known to be incompetent. Pitts
burg, etc., R. Co. v. Sullivan, 141 Ind. 83; Quinn v. Railroad Co., 94 Tenn.
713 ; Railroad Co. v. Artist, 6o Fed. 365 ; Eighmy v. U. P. R. Co., 93 la. 538 ;
Haggerty v. St. Louis R. Co., 1oo Mo. App. 424; Guy v. Lanark Fuel Co., 72
W. Va. 728; Richardson v. Carbon Hill Coal Co., 1o Wash. 648; Wells v.
Ferry-Baker Co., 57 Wash. 658; Ark., etc., R. Co. v. Pearson, o8 Ark. 399;
Big Stone Gap Co. v. Ketron, 1o2 Va. 23; Poling v. San Antonio R. Co., 32
Tex. Civ. App. 487; Nicholson v. Atchison, etc., Hospital AssJn, 97 Kan. 48o;
Nations v. Luddington, etc., R. Co., 133 La. 657. Contra, Phillips v. St. Louis
R. Co., 211 Mo. 419. One line of cases cited takes the ground that where no
profit is received' the principle exempting charitable hospitals from liability
for negligence of physicians applies. Railroad Co. v. Artist, supra; Wells v.
Ferry-Baker Co., supra. See 18 M1ch. L. Rev. 539, as to liability of char
itable hospitals, and 4 L. R. A. (N. S.) 66, as to relation of that to the pres
ent problem. The analogy to charitable hospitals is disapproved in Haggerty
v. St. Louis R. Co., supra, and Ark., etc., R. Co. v. Pearson, supra, inasmuch
as the purpose of the employer cannot be said to be purely philanthropical.
The better ground seems to be that of the principal case, which holds the
physician to be neither a servant nor an agent but an independent contractor.
On that theory the employer is liable only when there is a contractual rela
tion between the employer and employee, making it the duty of the former
to furnish skilled medical treatment, which cannot be evaded through the
interposition of an independent contractor. An express contract to this effect
is obviously sufficient. Wells v. Ferry-Baker Co., supra; Sawdey v. Spo
kane, etc., R. Co., 3o Wash. 349. Such a contract will be implied where the
employer derives an actual profit from the wage deduction. Texas Coal Co.
v. Connaughton, 2o Tex. Civ. App. 642; Sawdey v. Spokane, etc., R. Co.,
supra. As the test by which the status of a hospital as charitable or other
wise is ascertained is whether or not a profit is received, and since a noncharitable hospital is liable for the negligence of its physicians, it is clear
that the same result is obtained whether or not the analogy of the charitable
hospital is applied in cases of the present type.
Mun1c1pal Corporat1onsC1ty Owed no Duty of Act1ve Inspect1on of
Automob1le 1n Favor of Assessor Sol1c1t1ng R1de.The city of Yonkers
placed one of its automobiles in the charge and control of the city engineer.
The city assessor, wishing to go to a distant part of the city for the purpose
of transacting certain business in the line of his official duties, asked the
engineer to take him there. Due to a defect in its steering apparatus, the
car was overturned and the assessor was killed. His administratrix brought
this action for damages on the theory that the city should have inspected the
57o
MICHIGAN LAW REVIEW
car. Held, that the assessor was a mere licensee and the city owed him no
duty, and that even if the relationship had been such as ordinarily to estab
lish such a duty the city would not be liable here because it was acting in a
governmental capacity. Carroll v. City of Yonkers (N. Y., 192o), 184 N. Y.
S., 847.
The general proposition that a municipal corporation is not liable for
torts committed while it is acting in a governmental capacity, and that it is
liable for those committed while it is acting in its private or corporate
capacity, is so well settled that no citation of authority is necessary. For
an interesting discussion of this general subject, see 1o M1ch. L. Rev. 3o6. In
the instant case it was clear from the evidence that the deceased was a mere
licensee. It further appeared that the engineer was not acting within the
scope of his authority. Consequently, the city could not be held liable in
any case on those facts. Massell v. Boston Elevated Railway, 191 Mass. 491 ;
Thayer v. City of Boston, 19 Pick. 516. Nevertheless, the court discussed
the above proposition, and indicated that the proper way to ascertain in any
case into which class of powers a certain act should be placed was to deter
mine whether the city at the time of the casualty was carrying on a public
function or whether it was acting for its own private advancement and
-emolument. The conflict in the authorities is due to the uncertainty of the
proper test to be applied rather than to the uncertainty of the" law itself.
Several rules have been advanced by the courts. Some have applied the
test of whether the municipality derives revenue from the service or not.
Others say that whether the work is of a commercial or of a public character
should determine. Bailey v. The Mayor, 3 Hill 531. Still others draw a
different distinction. See Rochester White Lead Co. v. Rochester, 3 N. Y.
463. In Lloyd v. Mayor, etc., of N. V., 5 N. Y. 369, the court declined to
assume the responsibility of establishing any criterion, saying it would deter
mine as each case arose into which class it should fall. In Hodgins v. Bay
City, 156 Mich. 687, and in Jones v. Sioux City, 185 Iowa 1178, the courts
recognized the general rule, but immediately set out to avoid its effects. It
is often difficult to tell where one class of powers leaves off and the other
begins. An examination of the cases reveals the fact that the courts arc
disinclined to draw 'too strict a line so as to exempt municipal corporation
from liability to the detriment of private rights. As yet no definite test has
been formulated which has been generally adopted.
Mun1c1pal Corporat1onsLett1ng Contracts to Lowest Bidder.
Where the charter of a city required that improvement contracts should be
let to the lowest bidder, and the city invited bids requiring each bidder to
furnish his own specifications for any hard surface pavement, held, that the
proceeding was void, as there was no direct competition on the basis of fixed
specifications as contemplated by law. Montague-O'Reilly Co. v. Milwaukee
(Ore., 192o), 193 Pac. 824.
The object and purpose of a statutory provision requiring work to be
let to the lowest responsible bidder is to insure competition in the letting oi
571
contracts for public improvements. National Surety Co. v. Kansas City

Brick Co., 73 Kan. 196. All contracts in which the public are interested
which tend to prevent the competition required by statute are void. Fishburn
v. City of Chicago, 171 Ill. 338. There is a split of authority on the question
whether bidding on a patented article allows the necessary competition. In
Terwilliger Land Co. v. Portland, 62 Ore. IOI, an ordinance inviting bids for
the improvement of streets with Hassam Pavement, a patented process, was
held to be void. In State v. Shawnee County, 57 Kan. 267, the court held
that it was hardly intended by the law that the public should be barred from
using recent inventions or obtaining beneficial improvements because they
were covered by an authorized patent or were the product of exclusive man
ufacture. See other cases and notes in 5 M1ch. L. Rev. 484, 485, 7o8. With
a view for insuring the city both competition and the benefit of different
processes, Judge Cooley held that the kind of material is not required to be
determined in advance of advertisement for bids, saying that when bids are
thus called for all bidders for a particular kind of pavement are bidders
against all others in a certain sense, but they are also bidders against each
other in a more particular sense. Atty. Gen. ex rel. Cook v. Detroit, 26 Mich.
263. The courts usually hold that bidding on the basis of different kinds of
materials is permissible. Baltimore v. Flack, 1o4 Md. 1o7; Schuck v. Reading,
186 Pa. 248. Specifications must be prepared in advance sufficiently definite
to enable bidders to prepare their bids intelligently. 2o Am. & Eng. Eno.
of Law 1 167. Where the quantity of the work is not described in the speci
fications, the contracts made thereunder are void. Wells v. Burnham, 2o
Wis. 119; Cal. Improv. Co. v. Reynolds, 123 Cal. 88. See 38 L. R. A. (N.
S.) 663.
Mun1c1pal Corporat1onsSpec1al Assessments on Improvements.
Where the landowners on an island were assessed for the expense of 3 road
way established on the mainland, where their property was isolated from
and inaccessible to the street and could only be reached by a bridge esti
mated to cost a very large sum of the money and the building of which was
not contemplated in the near future, held, that the assessment was invalid
because the benefits were too remote. City of Seattle v. Pcabody (Wash.,
192o), 192 Pac. 961.
The expense of making improvements is very generally met in whole or
in part by local assessments authorized to be made upon persons or property
benefited or deemed to be benefited. 2 D1llon on Mun1c1pal Corporat1ons
[3d ed.] 911. A legislative act describing the community benefited will not
be disturbed by the courts unless it is obviously erroneous and arbitrary.
Mullins v. Little Rock, 131 Ark. 198. The benefits which will legalize an
assessment for the expense of a local improvement must be a present benefit
immediately accruing, and speculative benefits which may never be realized
are not sufficient. In re West Wheeler St., 97 Wash. 669. The question as
to what constitutes a speculative benefit has caused the courts a great deal
of difficulty. In Hutt v. Chicago, 132 Ill. 352, the street ran to the point
572
MICHIGAN LAW REVIEW
where a bridge would be built, if one was ever constructed, and the property
owners across the river were not l1able on the special assessment. Where,
however, the street was built to a place where the city contemplated building
a bridge in the near future and the street was built with the intention that
such a bridge would be constructed, the property owners across the river
were liable on the special assessment. Dickson v. City of Racine, 65 Wis. 3o6.
In the latter case the court said that it would be absurd to say that the con
templated building of the bridge should have no effect in estimating benefits.
In Chamberlain v. Cleveland, 34 Ohio St. 551, the court held that the opening
of one street rendering practicable that of another contemplated street which
could not have been opened before might be considered in estimating the
special benefits. The probability that the city might in the future project a
sewer to form a connection with the first sewer is too remote a benefit to be
assessed. State, N. J. R. R. v. City of Elisabeth, 37 N. J. L. 33o. Land which
can be drained into a trunk sewer only after laterals are built cannot be
assessed for the costs of the trunk until such laterals are constructed. State,
Kellogg Bros. v. City of Elisabeth, 4o N. J. L. 274 See 28 Cyc. 1129.
Negl1genceHouse Guest a Mere L1censeeL1ab1l1ty of Host fob
Injur1es Due to Sl1ppeby Floors.Defendant invited plaintiff and her hus
band to be guests at the house of the former on New Year's Eve and New
Year's Day. They accepted, and while in the home of the defendant the
plaintiff was injured by the slipping of a small oriental rug on the polished
hardwood floor. In action for damages, held, defendant not liable Green
field v. Miller (Wis., 1921), 18o N. W. 834.
Although there by invitation, plaintiff was not in law an invitee but a
mere licensee. The duty of an occupier to an invitee is of course not the
same as to a licensee, though in the principal case on the facts the result
probably would have been Ihe same. In the case of a licensee the occupier
owes a duty merely to give warning of any concealed danger of which he
actually knows. Salmond on Torts [5th Ed.], 122. For positive negli
gence there would of course be liability, as, for example, if the host were
to drop carelessly a lamp upon the foot of the guest. While the licensee,
the social guest is on the premises solely by reason of the host's invitation,
curiously in the view of the law it may be fairly said that the latter has "no
interest" in the matter. "A licensee," says Salmond, "may be defined as a
person who enters the premises by the permission of the occupier, granted
gratuitously in a matter in which the occupier has himself no interest." It
the host, however, takes the guest out for a joy ride in an automobile and,
due to careless driving, he is injured, there may be a recovery. Avery v.
Thompson (Me.), 1o3 Atl. 4; Perk1ns v. Galloway, 1o4 Ala. 265, L. R. A.
1916 E, 119o; Massaletti v. Fitsroy, 228 Mass. 4S7 (if negligence is gross).
But if the guest fails to advise and, if necessary, remonstrate from time to
time regarding speed, etc., even though he rides on the back seat, he may
be refused recovery on the ground of contributory negligence. Hoive v.
Corey (Wis., 1o2o), 179 N. W. 791, 19 M1ch. L. Rev. 433. The decision in
RECENT IMPORTANT.DECISIONS
573
ihe principal case is in accord with the conclusion in Southcote v. Stanley

1 H. & N. 274. See also Derby v. Railroad Co., 14 How. 468.
Partnersh1pDuty to Keep AccountsIll1terate Partner.Upon a
bill for an accounting, the master found that both partners were illiterate,
that no systematic accounts of the firm business had ever been kept, and
that while plaintiff was absent and defendant was in charge of the business
the same methods of bookkeeping were employed as theretofore. Held,
defendant not liable for failure to keep proper books of account. Poulette
v. Chainay (Mass., 1921), 129 N. E. 29o.
The universally recognized duty of partners to exercise toward each
other the utmost good faith in all their business dealings is well stated by
Bacon, V. C, in Helmore v. Smith, 35 Ch. D. 436, 444. As a component part
of the larger doctrine, every partner has the duty to see that proper accounts
are kept of the partnership transactions. Mechem, Partnersh1p, 116.
Failure of a partner to keep, or to enable another designated' partner or clerk
to keep, such accounts creates a presumption against the bona fides of such
partner. Dimond v. Henderson, 47 Wis. 172; Kelly v. Greenleaf, 3 Story
(U. S. C. C.) 1o5. But such presumption may be rebutted. Tallmadge v.
Penoyer, 35 Barb. (N. Y.) 12o; Garretson v. Brown, 185 Pa. St. 447; Fer
guson v. Wright, 61 Pa. St. 258. It was held in the principal case that the
presumption was rebutted by a showing that the defendant did all that might
reasonably have been expected of one in his circumstances. And indeed such
is the general requirement, although it is often stated in broader terms. The
duty imposed is in its very nature co-related with the question of motive,
and should not be judged or measured by a purely external standard. Charl
ton v. Sloan, 76 la. 288. That this is true is shown by the case of Shoemaker
v. Shoemaker, 29 Ky. L. Rep. 134, in which a partner was held not liable for
employing a deficient system of bookkeeping because the same system had
been used for a number of years to the knowledge of the other partners and
without any objection from them.
Rule 1n Shelley's CaseEstatesW1lls.Grantor conveyed to trus
tees on trust for J for life, remainder the heirs of her body. Trustees were
given right actively to manage the estate during the life of J if they thought
it wise. Held, J only took a life estate and the Rule in Shelley's Case did
not apply, since the life estate was an equitable estate, while the remainder
was a legal estate. Youmans v. Youmans (S. C, 192o), 1o5 S. E. 31.
Grantor conveyed to S for life, and after her death to her heirs in fee.
Held, Rule in Shelley's Case applicable and S acquired an estate in fee sim
ple. Starling v. Newson (N. C, 192o), 1o5 S. E. 3.
Testator devised to M for life, remainder to the heirs of her body law
fully begotten. Held, Rule in Shelley's Case did not apply, since from the
whole instrument it appeared the testator meant the remainder to go to the
children of M. Blackledge v. Simmons (N. C, 192o), 1o5 S. E. 2o2.
These cases, decided within a month of each other and reported in the
574
MICHIGAN LAW REVIEW
same series, are indicative of the ever recurring decisions based upon the
feudal rules of law commented on in 19 M1ch. L. Rev. 426. The first of the
cases abstracted above was decided on the basis of technical rules of ancient
origin as to the operation of the Statute of Uses ; while the third is illus
trative of the lengths a modern court will go in declaring medieval ruler, inap
plicable to the facts at hand, in spite of authority to the contrary, where to
apply the rule would defeat the intentions of the testator. The canons of
construction used and the fine distinctions drawn, whereby the words "heirs
of her body lawfully begotten" were constructed as "children," would prob
ably have appalled the judges who decided such cases as Jesson v. Wr1ght,
2 Bligh. 1, and Van Grutten v. Foxwell, [1897] App. Cas. 658. In George v.
Morgan, 19 Pa. 95, the court held that the Rule in Shelley's Case did apply
to limitations exactly similar to the estates limited in the principal case. For
a collection of the authorities, see 29 L. R. A. (N. S.) 963.
Tr1alsM1sconduct of JuryCommun1cat1on as Bas1s of New Tr1al.
A conviction for murder had been affirmed in the supreme court. An
extraordinary motion for new trial was made by the defendant because it
was found that the jury, which then stood ten for guilty and two for guilty
with recommendation for mercy, had requested the deputy in charge to
inform the judge that they could not agree and wished to go home. He did
so, and told them that the judge would not release them, adding that "the
judge would keep them locked up until they did make a verdict." In a few
minutes the jury brought in a verdict of guilty. All save three of the jurors
made affidavits that they were not influenced by the deputy's remark, among
them the two who had voted for mercy. Held, motion sustained and judg
ment reversed. Harris v. State (Ga., 192o), 1o4 S. E. 9o2.
This decision represents the reductio ad absurdum of maintenance of the
purity of jury trials. If an officer of the court makes statements calculated
to influence the verdiqt of the jury, it is ground for a new trial. State v.
LaGrange, 99 Iowa 1o. But if it does not appear that conduct had the effect
of forcing or influencing the verdict, there is no reason for granting a new
trial. In Pope v. State, 36 Miss. 121, the bailiff, in jest, told the jury that
unless they decided one way or another they would have nothing to eat or
drink. It was held that, although the remark was illegal, the only moti\e
was for concurrence, and could not affect one party or the other ; that it
was not calculated to affect the deliberations of the jury. See civil cases:
Leach v. Wilbur, 9 Allen 212 ; Wiggins v. Downer, 67 How. Pr. 65. In State
v. Cady, 46 La. Ann. 1346, the officer in charge of the jury said that they ha.i
better go to work, for if they didn't decide the case the judge would lock
them up until Saturday, and it was held that this would not influence reason
able men, and was not of such a nature that injury could fairly be presumed.
A similar remark was made in Alexander v. Sta1e, 22 So. 871 (Miss.), where
it was said that -the integrity and independence of the jury could not be
thought to be affected by the servant's misconduct. Obear v. Gray, 68 Ga.
182, and Smith v. State, 122 Ga. 154, cited by the court in the principal case
575
are not authority for the position of the court. In the first case there was
some evidence that the jury, worn out, has "fixed up" a verdict; also, they
had been allowed! to separate and go out to a public resort. In the latter
case the bailiff had taken the jury out for a view of the locus, unknown
to counsel in the case. In Renfroe v. State, 13 Ga. App. 655, cited by the
court, after the jury had been out eighteen hours the bailiff said that they
should not make a mistrial, as the judge was conscientiously opposed to
them. The court seems to lay down the rule that the plaintiff in error should
show injury, unless misconduct of the jury is shown or it appears they have
been unduly interfered with, when there is a presumption of injury ; but this
presumption may be affirmatively rebutted. A new trial was granted. It is
submitted that the principal case goes so far beyond any necessity of pre
serving the purity of jury trial as actually to do injustice. As Dean Pound
has said, "The individual gets so much fair play that the public gets very
little." Compare with the principal case the case of People v. Pyle, 185 Pac.
1o19 (Cal., 1919), in which a bystander had said, in the presence of jurors;
to defendant's attorney, that he would "fix" the defendant, who had "'beat"
him out of some money. It was held that in the absence of a showing that
the verdict had been influenced it was no abuse of discretion to deny a new
trial, "unless we go out into the thin air of metaphysics for inspiration and
wholly disregard the ample evidence, independently of thr alleged state
ments, to sustain the verdict of the jury and arbitrarily hold that such alleged
statements probably influenced the verdict, the defendant's contention can
find no support." See State v. Harper, 1o1 N. C. 761, 9 Am St. Rep. 46;
State v. Burton, 172 N. C. 939.
TrustsResult1ng Trust on Husband's Purchase of Land ant Con
veyance to W1fe not Destroyed by Her Verbal Agreement to Hold T1tle
for H1s Use.The defendant purchased land with his own funds and had
it conveyed to his wife on her parol promise to hold the title for his use and
make such conveyances as he should desire. Upon separation from her hus
band twenty years later the wife brought ejectment for the land. Held, the
presumption of a gift to the wife being overcome by the evidence of her
oral agreement, there is a resulting trust in favor of the husband. Jackson
v. Jackson (Ga., 192o), 1o4 S. E. 236
Since the so-called resulting trust is based upon an intention implied in
law, it would seem illogical to decree a resulting trust in the face of an
actual intention expressed in an oral agreement. An artificial presumption
of intention is inconsistent with an actual intention. The trust being an
oral one and unenforceable because of the Statute of Frauds, relief should
be sought on the theory of a constructive trust. This is the view of Dean
Ames in 2o Harv. L. Rev. 549, and Professor Costigan in 27 Harv. I,. Rev.
437. It is noteworthy that the court in the instant case recognized the logic
of this position, though it felt constrained to adhere to the prevailing view
that the trust is still resulting if the oral agreement is not different from
that which would! be implied if the grantee were legally a stranger. Long v.
576
MICHIGAN LAW REVIEW
Mechem, 147 Ala. 4o5; Barrows v. Bohan, 41 Conn. 278; Smithsonian Inst. v.
Meech, 169 U. S. 398. Other courts have discarded this v1ew as unsound, at
least to the extent of holding that an oral promise to the one paying the
consideration takes the case out of the category of resulting trusts, and that,
in the absence of fraud, no trust will be imposed. Mullong v. Schneider. 155
la. 12; Chapman v. Chapman, 114 Mich. 144; Johnson v. Johnson, 16 Minn.
512. This result, while logically correct so far as the principle underlying
resulting trusts is concerned, seems to overlook the prevention of the unjust
enrichment principle upon which a decree of constructive trust might prop
erly be based. It is to be noted that, if the view contended for by Dean
Ames and Professor Costigan is adopted to its full extent, the courts must
recognize not only that the trust is not resulting but that the mere repudia
tion of the promise is sufficient fraud upon wh1ch to found a constructive
trust. Otherwise, in many cases where relief is now granted on a resulting
trust theory there could be no relief if the trust were regarded as construc
tive. This would be the result in states where actual fraud is required to
raise a constructive trust. Skahen v. Irving, 2o6 Ill. 597; Lancaster v.
Springer, 239 Ill. 472. It is not infrequently held that the mere repudiation
of an oral agreement, made in good faith, is not fraud. Teeney v. Howard,
79 Cal. 575 ; McClain v. McClain, 57 la. 167 ; Tagte v. Tagte, 34 Minn. 272.
Unless the courts are prepared to hold that fraudulent retention justifies a
constructive trust, they are forced to deny relief except on a resulting trust
theory. The additional step would seem to be warranted, however, not only
because of the more effective justice which could be rendered but because it
would place the cases upon an undeniably sound and logically correct basis.
The simple admission in the instant case that the trust enforced there should
logically be a constructive rather than a resulting trust is a step in the right
direction.
Vendor and PurchaserR1ghts of Part1es where Prem1ses are Dam
aged.Plaintiff had contracted with defendant to sell him property with
Stores on rt, conveyance to be made on a certain date. Defendant had paid
a small part of the purchase price. Before the time for conveyance, without
the fault of the vendor, the wall of the building containing four stores fell,
damaging the property substantially. Cross suits in equity were instituted,
for specific performance and for repayment of the part payment, respectively.
Held, that the loss must fall on I he vendor. Ubman v. Levenson, Levenson
v. Libman (Mass., 192o), 128 N. E. 13The prevailing rule in the United States is that the risk is on the vendee,
since he is considered in equity as the real owner of the property. Brewer
v. Herbert, 3o Md. 3o1; Seweli v. Undcrhill, 197 N. Y. 168, 8 M1ch. L. Rev.
515; Neponsit Realty Co. v. Judge, 176 N. Y. Supp. 133; see Mandru v.
Humphreys, 98 S. E. 259. Unless the contract is unenforceable by the vendor
at time of loss, as where he has not obtained title. Amundson v. Severson,
17o N. W. 633. A supporting argument is that since any increase of value
belongs to the vendee, Prick's Appeal, 1o1 Pa. St. 485, the risk of loss should
RBCUNT IMPORTANT DECISIONS
577
also fall there. See Brewer v. Herbert and Neponsit Realty Co. v. Judge,
supra. Professor Williston answers this by saying that in the case of loss
the thing itself is changed in nature, admitting that increase belongs to the
vendee. W1ll1ston on Contracts, 951. But suppose the premises were
residential property on which oil was subsequently discovered. Would not
the nature of the subject matter be changed also? The Massachusetts court
in the principal case makes the rule for equity the same as the rule for law.
Wells v. Calnan, 1o7 Mass. 514; following dicta in Thompson v. Gould, 2o
Pick. 134, where the contract was unenforceable because of the Statute of
Frauds. It would be convenient to have the same rule both in law and
equity. But if the rule at law be so crystallized that it cannot be changed,
there is no reason for making the equity rule, which, it is submitted, is a
juster rule, conform to it. The court in the principal case says nothing about
possession. Professor Williston recommends that the rule should be that
the risk should pass upon transfer of possession, on the theory that the inten
tion of the parties is that the property is to pass at a future time, not neces
sarily the time for conveyance, and that if the vendee is given immediate
right to possession title is retained as security for payment,a short way of
accomplishing the same result as a mortgage back on conveyance. W1ll1s
ton on Contracts, o4o. There is support for the possession theory; see
Good v. Jarrard, 93 S. C. 229; Scwcll v. Underhill, supra (where the court
says that there is the added fact that purchaser was in possession). But it
is submitted that if possession of the vendee is a short way of accomplishing
a "mortgage," so is a land contract a short way of getting rid of the risk ot
loss on the part of the vendor, and of assuming the chance of increase in
value on the part of the vendee. Incidentally, possession of the vendor sub
sequent to the contract may be regarded as a high form of security, which
the parties surely can accomplish by their contract. The fact that the vendor
usually will have property of his own on the premises, when he is in posses
sion, is surely enough to guarantee that he will bestow reasonable care. See
discussion by Dean Pound, and cases cited, in 33 Harv. L. Rev. 813, 326-817.
Workmen's Compensat1onAcc1dent Ar1s1ng Out of Employment
Sport1ve Act of Co-employee.Applicant's intestate, while devoting his time
to his work, was killed by the sportive act of a co-employee in shooting air
at a high pressure into his body per rectum by means of a compressed air
hose used in the employment. Held, not an accident "arising out of the
employment," within the Workmen's Compensation Act. Payne v. Industrial
Comm. (Ill., 192o), 129 N. E. 122.
On the general subject of liability under Workmen's Compensation Laws
for sportive acts of fellow servants, see note to Leonbruno v. Champlain
Silk Mills, 128 N. E. 711, i" 19 M1ch. L. Rev. 456. The opinion in the prin
cipal case places considerable emphasis upon the lack of actual knowledge
by the employer of use of the air hose for horseplay. But quaere, whether
such actions were not "reasonably to be expected," under the doctrine of
the case aove cited, especially since the employees involved were only 15 to
57
MICHIGAN LAW REVIEW
17 years of age. Accord with the principal case, see Federal Rubber Mfg.
Co. v. Havolic, 162 Wis. 341 ; Ballard's Adm'x v. Ry. Co., 128 Ky. 826; Tarpper v. Weston-Mott Co., 2oo Mich. 275. Contra, Robinson v. Melville Mfg.
Co., 165 N. C. 495. The case of In re Loper (Ind., 1917), 116 N. E. 324,
would seem to be distinguishable on the ground that the employer knew of
the practice of committing pranks with the air hose.
Workmen's Compensat1onL1ab1l1ty of Employer for Unskhfto,
Treatment of Employee by Phys1c1an.Employee fractured his leg and
was taken by his employer to a hospital, where the leg was set. The union
of the fracture was made by overlapping the fragments making the leg four
inches shorter. To correct this vicious union the employee had the usual
operation performed, but no union then took place, and from necessity the
leg wa9 amputated. In a, claim for compensation, held, the employee suffered
the loss of a leg as a result of his injuries and was entitled to compensation
for that loss. Booth & Flinn v. Cook (Okla., 192o), 193 Pac. 36.
Where death or an aggravation of the injury results to the employee
from an operation or medical treatment made necessary by an injury, the
question is often raised as to the liability of the employer. In cases where
the medical attendant is guilty of neither negligence nor malpractice, the
courts appear to concur in making the employer compensate for that death
or aggravation. Thus, where a workman died from the effects of an opera
tion conducted skilfully, it was found that he was injured by an accident
making the operation necessary and that death resulted from an injury, and
compensation was given accordingly. Lewis v. Port of London Authorities
[1914], W. C. & Ins. Rep. 299. So, too, where an injury to the employee's
finger caused gangrene, making two operations necessary, and the second
operation,, conducted skilfully, resulted in pneumonia caused by the anaes
thetic, it was held that the accidental injury was the proximate cause of
death and compensation was granted. Favro v. Board of Public Library
Trustees, I Cal. Ind. Acc. Com. Dec. 1. And where an employee's arm was
cut by a saw, necessitating an immediate operation without time to prepare
the patient for ether, and as a result he contracted ether pneumonia and died,
compensation was given. In re Raymond, Mass. Work's Comp. Rep. (1913)
277. Where the malpractice of the medical attendant causes death or aggra
vates the injury of the employee, a few cases, including the English decisions,
do not hold the employer liable for such increase of incapacity. Thus, where
the employee broke his arm and, owing to unskilful medical treatment at a
hospital to which his employer sent him, his arm did not and' could not com
pletely recover, the employer was not held liable for the unskilful treatment
and compensation for this further injury was denied. Delia Rocca v. Stanley
Jones & Co., 6 N. C. C. A 624. The court there based its decision on the
ground that the injury resulting from the malpractice cannot be traced back
to the first injury, but a new agency, malpractice, had intervened, for which
the employer is not liable. In Viita v. Fleming, 132 Minn. 128, the question
arose whether settlement by the employer, releasing himself from all claims

-on account of the injury, also released the defendant doctor from liability
for malpractice. It was held that the employer was not liable for disability
caused by the negligence of the doctor, and so the settlement did not extin
guish the employee's claim against the doctor for malpractice. But the
great weight of authority, that the employer is liable for the results oi
malpractice, seems the better view. Thus, it has been held that an employer
failing to provide medical attention is liable to compensate for the loss of
an employee's eye caused by the negligence and incompetence of a practitioner
selected by the employee. Stockuell v. Waymire, 1 Cal. Ind. Acc. Com. Dec.
(part 2) 225. At common law the employer was not liable to an injured
employee for the negligence or malpractice of a physician called by the
employer, if he was not negligent in selecting an incompetent physician.
Boring v. Chicago R. Co., 11o N. E. 545. But liability under the Compensa
tion Acts is not based upon negligence. The theory of the act is that injuries
are an element of the cost of production and should be charged to the indus
try. So whenever the immediate agency causing death or further injury is
one which the first injury made it necessary to employ, the employer should
be compelled to compensate for the resulting death or further injury. The
principal case is in accord with this doctrine and rests upon the better reason
ing. Even where the employee had rejected the medical treatment offered
by the employer, nevertheless the employer was held liable for lung trouble
caused by the negligence of a physician chosen by the employee. Salvatore
v. New England Casualty Co., 2 Cal. Ind. Acc. Comm. Dec. 355, the court
saying: "An industry is liable for all legitimate consequences following an
accident, among which consequences affecting the extent of the disability 1s
the possibility of error of judgment or unskilfulness on the part of any
attending physician, whether called by the employer or employee."
BOOK REVIEWS
Handbook of Adm1ralty Law. By Robert M. Hughes, M.A., LL.D., of the
Norfolk (Va.) Bar. Second Edition. St. Paul, Minn.: West Publishing
Co., 192o. Pp. xviii, 572.
Maritime law, of which the admiralty is the principal exponent, should
be studied and enforced through treatises and text-books rather than by cases.
No branch of the law more nearly deserves to be classed as a science ; it rests
upon certain underlying principles and their rational deductions, and the real
merit of decisions therein must be tested by their harmony with fundamental
doctrines and not by the mass of current litigation assembled in the latest
digest or cyclopedia. Concurrent decisions, however numerous, cannot of
themselves create maritime law unless they are consistent with the principles
of the law itself. Neither can legislation produce any lasting change. Opin
ions and statutes are useful in so far as they conform to principle, but other
wise they are mere temporary obstruction-s, fertile in trouble and disaster,
but eventually avoided like reefs and shoals in the pathway of ships. In
other branches of the law precedents are frequently conclusive, irrespective
of the reasons upon which they rest; knowledge therein can be best obtained
through the study of decided cases, and successful practice will depend upon
following them. If this be a matter of evolution, maritime law has long
since passed that stage. Its principles have become fixed by the immemorial
methods of commerce by sea, to which merchants and sailors, courts and
practitioners, legislators and text-writers, have all contributed. And not least
in the group whose work has created the structure are those careful authors
who have published their essays upon various phases of the admiralty or
maritime law. It is from their books that the student will derive the most
benefit and the judge find the most reliable authority for his decision. Of
course, a practitioner cannot neglect the reported cases, but the careful advo
cate will look back of them at the unvarying and unalterable law itself,
remembering that decisions and statutes, however numerous, cannot trans
form inconsistent propositions into permanent law. Back of all the mass of
reported cases is the law itself; and incongruous precedents can have no per
manent abiding place therein. It is unfortunate, but true, that the admiralty
cases of the federal courts contain many conflicting and contradictory deci
sions, frequently leading into labyrinths of difficulties, but this necessitates
the use of commentaries and text-books and renders them essential for an
accurate perception of the maritime law itself.
A second' edition of Hughes on Adm1ralty is therefore very welcome.
It was first published about twenty years ago as one of the elementary
treatises composing the Hornbook Series. If intended for law schools, its
value to lawyers was soon recognized and it became a well-worn tool ;n mosl
offices of admiralty practice as well as in the courts. The new edition is
very satisfactory and presents its subject in a compact volume of some five
BOOK REVIEWS
581
hundred pages without padding or any wearisome attempt to refer to all the
decided cases. If elementary, it is because it deals more with principles than
with decisions, and one is glad to note that the author does not hes1tate to
indicate his own' opinion when he thinks that a decision is unsound. Great
changes have been occurring in maritime affairs during the past decade and
our already chaotic mass of statutory law is increased by volumes of crude
and hasty legislation. Little of it can permanently survive. Sooner or later,
the statutes must be thoroughly revised and simplified and the great mass of
reported cases consigned to oblivion. Proctors and judges will rely more
and more on the treatises and commentaries upon maritime law, which, use
ful now, will presently become indispensable.
Mr. Hughes' work deserves its standing in the bibliography of 1he admir
alty and forms one of a valued and interesting group of American authorities
on its subject. As is well known, we had a broad and comprehensive admir
alty jurisdiction in this country from its earliest times. The colonists main
tained a vigorous and active commerce by sea. The "Rooles or Jugements
d'Oleron" were enacted in Rhode Island as early as 1647, and the first charter
of the colony of Massachusetts Bay vested admiralty jurisdiction in the
Court of Assistants. Virginia created a court of admiralty to be governed,
in part, by the laws of Oleron and the Rhodian and Imperial laws. When
the Constitution was adopted it had behind it more than a century of active
admiralty practice, and the difficulties which the new government encountered
with the French Directory, the piratical governments of the Mediterranean,
and the wars of Napoleon occasioned the first great development of American
law. This was along maritime lines. All the early reports, state and federal,
are filled with shipping cases. The professional generation which held the
stage from about 1785 to 1815 was immersed in the admiralty and its activity
was soon reflected in our earliest law literature. In 1792 came Hopkinson's
Admiralty Reports, soon followed by excellent translations of Azuni, Roccus,
Pothier, Vattel, and Emerigon. Hall's Admiralty Practice was published at
Baltimore in 18o9. Wheaton's Maritime Captures and Prizes appeared in
1815, and was presently accompanied by Prick's translation of Jacobsen's
Laws of the Sea, still one of the pleasures of the legal bibliophile. All these
remain essential today to a practitioner's library. Of what other publications
of the period can the same be said? Before 183o. Chancellor Kent had pub
lished his Commentaries, whose first and third volumes so fascinatingly pre
sent the salient principles of our subject, and Cushing had edited Pothier's
Maritime Contracts. Bett's Admiralty Practice appeared in 1838. Later,
Willard Phillips wrote his Treatise on the Law of Insurance, of which Lord
Esher said, in Company v. Association, 22 Q. B. D. 587, that it was the book
on which he placed most reliance in cases of marine insurance. The same
period gave us Flanders on Maritime Law ; Marvin's Treatise on the Law
of Wreck and Salvage; Parsons on Shipping and Admiralty; Parsons on
Marine Insurance and General Average ; Curtis on the Rights and Duties of
Merchant Seamen; and the first edition of Benedict's American Admiralty.
58a
MICHIGAN LAW REVIEW
More recent works of high rank are Gou1lie on General Average, Wheeler
on Carriers, and Spencer on Collisions.
This by no means exhaustive list of American books indicates a sub
stantial contribution to the law. They are all of permanent value and char
acterized by scholarly research, independence of thought and accuracy of
statement. All of them exhibit a wholesome and respectful readiness to
differ from the courts when decisions seem wrong, and the fruits of their
honest criticism have not infrequently appeared in subsequent opinions.
Hughes on Adm1ralty belongs to this group as a faithiul presentation of
the law as administered in those admiralty courts of the present time which
are mindful of the principles and customs which these text writers have pre
served and handed down to us from past generations.
Detroit, Michigan.
G. L. Canfteld
MICHIGAN
LAW
Vol. XIX
REVIEW
APRIL, 1921
No. 6
"WATERED STOCK" COMMISSIONS "BLUE SKY

LAWS" STOCK WITHOUT PAR VALUE.
STOCKHOLDERS' exemption from liability for corporate
debts is a modern invention. It was not until 181 1 that New
York extended that exemption to stockholders in manufacturing
corporations.1 Massachusetts did not grant it until 183o.2 England
did not allow it to stockholders in business and manufacturing com
panies until 1855.3 As President Eliot of Harvard has pointed out,
this privilege of limited liability is "the corporation's most precious
characteristic."4
Before this limited liability was granted to private corporations
for business purposes they were few in number and of little im
portance. Chancellor Bland, of Maryland, believed that no instance
*L. 181 1, ch. 67.
9 L. 183o, ch. 53. Prior thereto, in 18o9, such stockholders were declared
by a Massachusetts statute to be liable for corporate debts. L. 18o9, ch. 65.
8 18 and 19 VrcT., ch. 133 By 8 V1ct., ch. 1 1o, such stockholders were
declared liable for all corporate debts.
4 "A large part of the work of the world is still done by individuals and
partnerships ; but the corporation is the great new factor in modern business,
the privilege of limited liability being the corporation's most precious charac
teristic. The principle of limited liability is by far the most effective legal
invention for business purposes made in the nineteenth centurynot that cor
porations have not other advantages over partnerships, such as the advan
tageous holding of real estate, the easy transference of a stockholder's in
terest and convenience as to suing and being sued; but the fundamental
advantage of a corporation, the advantage which enables it to mass and
direct capital, is the privilege of limited liability. Therefore corporations
multiply and have become indispensable."
584
MICHIGAN LAW RSVIEW
of such a corporation in the colonial times of America could be

found.5 Judge Baldwin, of Connecticut, however, calls attention to
the fact that the "New London Society for Trade and Commerce
United" was incorporated by the colony of Connecticut in 173 1, and
that it not only had a capital stock, but issued circulating bills as
currency. The Connecticut Land Company was organized in Con
necticut in 1795 and owned the entire Connecticut "Western Re
serve".8 Nevertheless, during the eighteenth century, private cor
porations for profit were of small consequence, and it has only been
during the past fifty years that the relative importance of the dif
ferent classes of corporations has changed, and that private cor
porations for business purposes have overshadowed all other kinds.
This has been due chiefly to the limited liability feature of modern
business corporations.
This exemption of stockholders from personal liability for corpo
rate debts has worked wonders in the industrial world. If such
freedom from liability did not exist the public would not dare to buy
stocks, because they would be liable for corporate debts. With
that exemption from liability, however, the risk is reduced to the
risk of the money actually paid for the stock. Hence we find in
some American corporations over 1oo,ooo stockholderstotal
strangers to each other, and scattered all over the world. This
renders practicable those vast aggregations of capital which have
revolutionized modern industry.
The ease, however, with which by reason of this exemption from
liability stock can be sold to the public, has caused abuses to arise,
namely, the issue and sale of "watered stock", based, not on cash
'McKim v. Odom, 3 Bland, Ch. 4o7, 418 (Md., 1829). In the case of
McKean v. Biddle, 181 Pa. St. 361 (18o7), it appears that a mutual insurance
company had not paid dividends for one hundred and thirty years, but had
gradually accumulated a surplus of over $4,ooo,ooo. The court held that it
might resume the payment of dividends.
8Holmes v. Cleveland R. R., 93 Fed. 1oo (1861). In England trading
corporations were formed much earlier. The English East India Company
was organized under a royal charter granted by Queen Elizabeth, December
31st, 16oo, under authority of Act of Parliament (See Burke's "Speeches in
Trial of Warren Hastings", Vol. I, p. 12), with a capital of 72,ooo, and
with 125 shareholders. The name of the company was "The Governor and
Company of Merchants of London, trading into the East Indies." The Dutch
East India Company was chartered March 2oth, 16o2, by the Netherlands
states-general.
STOCK WITHOUT PAR VALUE
585
paid to the corporation equal to the par value of the stock, nor on
property equal in value to the par value of the stock, but based on
property transferred to the corporation at an over-valuation in ex
change for the stock. Promoters are quick to see that if the prop
erty is over-valued ; in other words, if a large amount of stock (the
par value of which is far in excess of the actual value of the prop
erty) is issued to them in exchange for such property, and is then
sold by them to the public the profits will be large. The greater the
issue the greater their profit. The fact that the public does not know
the real value of the property renders the manipulation easy. Later
when a collapse comes, the stockholders lose their money and they
don't like it; corporate creditors are not paid and they also have a
grievance. Hence during the past fifty years there has arisen a great
body of law as to the liability of promoters, who transfer property
at an over-valuation to a corporation in exchange for stock, and then
sell the stock to the public.
Naturally the old common law was silent on this subject because
"watered stock" is a creature of modern times. Applying, however,
old principles of common law to a new use the remedies applicable
were either rescission for fraud, or an accounting for fraud, or a
suit against the promoters on an implied contract on their part to
pay the full par value of the stock, less the actual value of the prop
erty transferred by them to the corporation. Some courts; including
the English courts, hold that rescission is the remedy.7 The reason
is that if the payment by property was fraudulent, then the contract
is to be treated like other fraudulent contracts. It is to be adopted
'In Anderson's Casa, L. R. 7 Ch. D. 75 (1877), stock was issued to a
promoter for property taken at an overvaluation. This action was to render
him liable for the par value of the stock, less the real value of the property.
The court said, pp. 94, 95, 1o4 : "I am not going to alter men's contracts unless
the provisions of an act of parliament compel me to do so. . . . But you can
not alter the contract to such an extent as to say, Though you have bargained
for paid-up shares, we will change that into a bargain to take shares not
paid up, and put you on the list of contributories on that ground. . . .If
you set aside this allotment of shares, you mush set it aside altogether,
and then you cannot make the holder of them a contributory; and if you
do not set it aside altogether you must adopt it, and the utmost you can do
is, as I said before, that you can take away any profit from the person who
has improperly made it." In Currie's Case, 3 DeG., J. & S. 367 (1863), the
court said that the transaction "was either valid or invalid. If valid, it is
clear that neither he [the person receiving the stock] nor his alienees can be
586
MICHIGAN LAW REVIEW
in toto, or rescinded in toto and set aside. Both parties are to be

restored as nearly as possible to their original positions. The prop
erty or its value is to be returned to the person receiving the stock,
and he must return the stock or its real value, if any, at the time
of issue. This, of course, is not a very fruitful remedy, inasmuch
as the stock turns out to have had little or no value. The Supreme
Court of the United States holds that where the stock has no value
when it is issued for property, the creditors are not deprived of any
thing and hence cannot complain. "If, when disposed of by the
railroad company, it [the stock] was without value, no wrong was
done to creditors".8 But on the other hand that greatest of all courts
has held that where the property so turned in had no substantial
value, or where the overvaluation was "fraudulent", the court will
hold the promoters and stockholders, who took with notice, liable for
the par value of the stock, less the value of the property.9
called upon to contribute in respect of these shares. If invalid, I cannot see
my way to hold that either a court of law or a court of equity could do more
than treat the purchase as void, and undo the transaction altogether. It could
not, as I apprehend, be competent either to a court of law or to a court of
equity to alter the terms of the purchase, and treat as shares not paid-up
shares which were given as paid-up shares in part consideration of the pur
chase. Fraud, assuming there was fraud, would of course warrant the court
in treating the purchase as void, or in undoing it ; but it could not, as I con
ceive, authorize any court to substitute other terms."
Fogg v. Blair, 139 U. S. 118 (1891), holding that where all the stock
and a large quantity of bonds are issued by a railroad corporation to its
contractor in payment for the construction of the road, the contractor is not
liable to corporate creditors on the stock, even though the bonds without the
stock were a sufficient consideration for building the road, unless the cor
porate creditors prove that the stock at the time of its issue has a real or
market value. See also Memphis, etc., R. R. v. Dow, 12o U. S. 287 (1887).
"The Supreme Court in Camden v. Stuart, 144 U. S. 1o4 (1892), held
liable for unpaid subscriptions the subscribers to $15o,ooo of stock who had
turned in therefor a contract for real estate and a health resort which a year
prior thereto they had taken. The court did not allow any value for the con
tract and threw out the good will and said (p. 115) : "The experience and
good will of the partners which it is claimed were transferred to the corpora
tion, are of too unsubstantial and shadowy a nature to be capable of pecun
iary estimation in this connection. It is not denied that the good will of a
business may be the subject of barter and sale as between the parties to it,
but in a case of this kind there is no proper basis for ascertaining its value,
and the claim is evidently an afterthought. The same remark may be made
with regard to the contract of January 3oth, and the loss of time and trouble
57
There is the utmost conflict and confusion in the decisions. Some

courts have adopted what is called the "fair value" rule, but the
trouble is that fair value before the act may not look like fair value
after the act. Other courts have adopted the "good faith" rule, but s
the trouble here is the difficulty of fathoming the human mind, and,
the courts often differ on this subject, even in the very same trans
action. For instance, there are the two celebrated suits of the Old
Dominion Copper Company against Lewisohn of New York and
- Bigelow of Massachusetts. They had sold property to the company
for stock and then stock was sold to the public. The Copper Com
pany sued Lewisohn in the federal court in New York, and the court
held him not liable.10 Then the Copper Company sued Bigelow in
the Massachusetts state court and the court held him liable.11 Judge
to which the parties were subjected, which are now claimed to be elements
of value in the property contributed to the corporation, but of which no
account was made at the time." In the case Lloyd v. Preston, 146 U. S. 63o
(1892), affirming Preston v. Cincinnati, etc. Ry., 36 Fed. 54 (1888), where
the owner of a railroad sold it to a newly organized corporation for stock and
bonds, the par value of which was fifty times the real value of the railroad,
the court held that the bondholders and other creditors who had obtained
judgment against the corporation, the execution being returned unsatisfied,
might hold the party receiving the stock liable thereon on the ground that the
subscription price of such stock had never been paid. The court (p. 642),
said : "The entire organization was grossly fraudulent from first to last,
without a single honest incident or redeeming feature. It having been found,
on convincing evidence, that the over-valuation of the property transferred to
the railway company by Harper, in pretended payment of the subscriptions
to the capital stock, was so gross and obvious as, in connection with the other
facts in the case, to clearly establish a case of fraud, and to entitle bona fide
creditors to enforce actual payment by the subscribers, it only remains to
consider the effect of the defenses set up." Where $5oo,o0o of stock is issued
for $2 cash and a formula for cereal breakfast food, and the stock is then
sold at less than par to the public, and the company fails, stockholders by
statute being liable only to the extent of their unpaid subscriptions, the parties
to whom the stock was originally issued may be held liable. Wood v. Sloman,
15o Mich. 177 (19o7). Stock, which is paid for by the worthless assets of an
insolvent corporation and a transfer of stock in such corporation, is not full
paid and the stockholder may be held liable by corporate creditors. Dieterle
v. Ann Arbor, etc. Co., 143 Mich. 416 (19o6).
Old Dominion Copper etc. Co. v. Lewisohn, 136 Fed. 915, affirmed 148
Fed. 1o2o (19o5), and 21o U. S. 2o6 (19o8).
*"
"Old Dominion Copper, etc. Co. v. Bigelow, 188 Mass. 315 (19o5) ; s. c.
225 U. S. 111.
588
'
MICHIGAN LAW REVIEW
Hough in this same litigation12 well said that it has "a history writ
very large in the reports, and not calculated to encourage any one
who hopes to look upon the law as a science.""
The law was baffled. Meantime the evils of watered stock became
so great that a demand arose for constitutional and statutory pro
visions against such issues. Watered stock deceived people and in
duced them to buy the stock or to extend credit to the company on
the supposition that the capital stock had really been paid for at
actual par value "in meal or in malt * * * in money or in money's
worth" as an English court quaintly puts it.1** Hence when it be
came clear that the common law did not prevent such issues a de
mand arose for statutes and constitutional provisions to protect the
public from watered stock.
This demand gave rise to certain constitutional provisions which
were enacted in various states. These provisions are very similar
in their wording, and are substantially as follows: "No corpora
tion shall issue stocks or bonds except for money, labor done, or
money or property actually received; and all fictitious increase of
stock or indebtedness shall be void." Illinois led the way in 187o,
and Pennsylvania followed in 1874. Many other states have done
the same. In addition many states have passed statutes on this
subject.
Immediately there arose a bewildering maze of litigation constru
ing, limiting and applying these constitutional and statutory pro
visions. Courts differed from, courts, and even in the same state
"195 Fed. 637 (1911).
"Another illustration is where the Supreme Court of the United States
in Clark v. Bever, 139 U. S. 96 (1891), refused to follow the decision in Jack
son v. Traer, 64 Iowa 469 (1884). Both of these cases grew out of the same
transaction. The Supreme Court of the United States pointed out that the
State Supreme Court first decided one way, with one dissenting Judge, and
then on a rehearing decided the other way, 3 to 2. Still another illustration
is where the Supreme Court of Connecticut in Conley v. Hunt, 1o9 Atl. 887,
stated last year that the California Supreme Court follows the "good faith"
rule instead of the "fair value" rule. The Supreme Court of California did
follow the "good faith" rule in Harrison v. Armour, 147 Pac. 1166, decided in
1915, but followed the "fair value" rule in Zierath v. Claggett, 188 Pac. 837,
decided in 1o2o. In the case Smith v. Martin, 135 Cal. 247 (19o1), the court
adopted the dissenting opinion in Smith v. Ferries, etc. Ry., 51 Pac. 71o
(1897), where the judges divided three and three on this subject.
** Drummond's Case, L. R. 4 Ch. App. 772 (1869).
589
contradictory decisions filled the books. The prohibitions failed of

their purpose. They did not remedy the evil which they were ex
pected to cure. They were held to be applicable and effective only
when the issue of stock was entirely fictitious. They were held not
to interfere with the customary methods of starting a corporate
enterprise by the issue of stock and bonds in payment for the con
struction of the corporate works, at a price fixed by the organizers.
Practically their language and purpose have been construed away by
the courts.14 They lock the stable too late. Like penal statutes, they
attempt to punish violation of the law after the offense has been
committed. Financiers and promoters have not been deterred by
these constitutional and statutory prohibitions from issuing watered
stock. They have been willing to take the chances, and, of course, if
a corporation prospered, the chances of attack were slight. Even
where a corporation failed, the technical difficulties of enforcing
these provisions, have been so great as to render them in large part
nugatory. There is still the utmost confusion in ascertaining what
the law really is in the application; construction, and enforcement
of these provisions and of the common law. They have caused
financiers and promoters to incorporate in a state, where the laws
did not contain these provisions, and then such corporation carried
on its business in other states. The reason of all this conflict and
confusion is that courts do not like repudiation. They dislike it, not
only as to municipal bonds and as to corporate notes issued in excess
of a chartered limit, but also as to watered stock and so-called
fictitious bonds.
Something else had to be tried. Accordingly an entirely different
"The Supreme Court of Illinois in 1882 in the leading case Peoria, etc.
R. R. v. Thompson, 1o3 Ill. 187, held that this constitutional provision was not
intended to interfere with the usual business method of issuing stock and
bonds. In 1884 the Supreme Court of California reached much the same con
clusion in Stein v. Howard, 65 Cal. 616. The Supreme Court of Pennsyl
vania followed in 1888. Reed's Appeal, 122 Pa. St. 565. The Supreme Court
of the United States in passing on this provision in the Arkansas constitu
tion in the case Memphis, etc. R. R v. Dow, 12o U. S. 287 (1887), held that
this provision did not invalidate a transaction upon the reorganization of a
company after a foreclosure of its property, and a purchase of the property
by a committee for the bondholders, whereby they took in payment of such
property the bonds and stock of a new corporation, even though the stock
alone of the new company thus taken was, at its par value, equal to the value
of the property involved.
59
MICHIGAN LAW REVIEW
remedy has arisen, namely, the regulation of such issues of stock

before the issues are actually made. This regulation is by Public
Service Commissions, "Blue-Sky Laws", and as to interstate rail
roads, by the Interstate Commerce Commission.
The Public Service Commissions as a rule were given jurisdiction
over only quasi-public corporations, such as railroads, street rail
ways, gas, electric light, water works, power and telegraph and tele
phone companies. These Commissions now exist in nearly all of the
states. They have done effective work in preventing the issue of
watered stock by these quasi-public corporations. They cannot
remedy past issues except upon reorganization, but they can regulate
future issues. They have been reasonable, conscientious and de
voted to public duty in their work. Even now although they are
wrong in their sturdy but losing fight to continue to control intrastate
railroad rates, yet no one can fail to admire the spirit which seeks
to preserve the powers of the states.
All this, however, did not remedy the greatest evil of all, namely,
the issue of watered stock by private corporations. The abuses be
came so great, especially after the outbreak of the late war, that
nearly all of the states have now enacted what are called "Blue-Sky
Laws", appointing Commissions to pass upon proposed issues of
stock before such stock is sold. They are called "Blue-Sky Laws"
because they stop the sale of stock that represents nothing but blue
skynothing terrestrial or tangible. The lower courts in many in
stances held these laws to be unconstitutional, but the Supreme Court
finally upheld their constitutionality.15 Massachusetts here led the
way in 187518 in providing that a State Commissioner of Corpora"Hall v. Geiger-Jones Co., 242 U. S. 539 (1917) ; Caldwell v. Sioux Falls,
etc. Co., 242 U. S. 559 (1917) ; Merrick v. Halsey & Co., 242 U. S. 568 (1917).
"That statute was enacted in 1875 (Mass. Laws, 1875, Ch. 177, p. 769),
Section 2 being as follows :
"Conveyance of property, real or personal, at a fair valuation, to the
corporation, shall be deemed a sufficient paying in of the capital stock, to
the extent of such value; provided, that a statement, made, signed and sworn
to by the president, treasurer and a majority of the directors of the cor
poration, giving a description of such property, and the value at which it
has been taken in payment, in such detail as the commissioner of cor
porations shall require or approve, and endorsed with the certificate of
said commissioner, that he is satisfied that said valuation is fair and reason
able, shall be filed with the secretary of the Commonwealth ; and provided,
further, that if said property be not so conveyed and taken at a fair valua
591
tions pass upon the issues of stock by manufacturing and other cor-
porations before such issues were made. That state did not wait
until the stock had been issued and sold. It applied the remedy
in the origin of the transaction, and that remedy of commission
regulation has been found to be effective as well as just. There
are few Massachusetts decisions on watered stocka proof of the
justice and efficacy of the Massachusetts remedy, which has since
been adopted by many other states under the name of "Blue-Sky
Laws", but not yet in New Yorkthe chief promoting center.
Properly administered these "Blue-Sky Laws" will check many
of the swindling operations, which otherwise would be perpetrated
upon the public. And there is much need, just now. During the late
war excessive profits were made by nearly all classes. The usual
and natural method of transferring these profits from incompetent
hands into hands competent to invest and conserve the same, was
speculation. This process, however, has been largely displaced by *
the sale of worthless, fraudulent stocks. "Blue-Sky Laws" are in
tended to prevent this and are based on the right principle.
A third application of the Commission idea appears in "The
Transportation Act" of Congress of 192o. That Act requires the
approval of the Interstate Commerce Commission to the issue of
stocks or bonds by interstate railroad corporations before such issues
are made." It will prevent a repetition of some of the ruinous and
scandalous financing of railroads in the past. It is true that if this
provision had existed sixty years ago, the present railroad systems
would not have been built, because the speculative chance of making
large profits by the issue of watered stock and bonds built the rail
roads. But the time has come for a change.
We now come to the most peculiar remedy of all, namely, the .
issue of stock without any par value whatsoever. This can hardly
tion, the officers of the corporation signing such statement shall be jointly
and severally liable for its debts and contracts." This statute that the com
missioner of corporations must pass upon the value of property, which is
turned in for stock, cannot be evaded by the parties paying cash to the cor
poration for the stock and then using that cash to buy the property from them
selves. Yet if they do so under advice of counsel, they are not liable for the
penalty for doing so. Harvey-Watts Co. v. Worcester, etc. Co., 193 Mass.
138 (19o6).
"Act of Congress of February 28, 192o, adding Section 2oa, to the
Interstate Commerce Act.
592
MICHIGAN LAW REVIEW
be called a remedy. It is quite the reverse. It legalizes instead of

restricting large issues of stock for property. The theory of this
recent innovation is that the American public should be educated up
to the idea that a share of stock represents but a proportion of the
corporate property.18 The American public, however, is incurably
imbued with the idea that a share of stock represents or should rep
resent a fixed sum, instead of the imagination or machinations of
promoters. As a matter of fact, the public generally has no definite
idea of the value of property turned in for stock, and hence if un
limited stock may be issued for all kinds of property the danger of
fraud is greatly increased. Unreliable men may issue stock without
par value to an amount limited only by their capacity to induce the
public to buy it. It is of course safer for promoters to issue stock
without par value for choice assortments of property,1' but how the
investor and the public benefit has not as yet appeared. Stock with
out par value adds to the mystery as to what the stock really repre"The original New York statute on the subject, enacted in 191a, was
amended in 192o (L. 192o, Ch. 6o8, p. 155o), and the amendment contains the
following :
"Such corporation may issue and may sell its authorized shares, from
time to time, for such consideration as may be prescribed in the certificate of
incorporation, or for such consideration as shall be the fair market value of
such shares, and, in the absence of fraud in the transaction, the judgment of
the board of directors as to such value shall be conclusive; or for such con
sideration as shall be consented to by the holders of two-thirds of each class
of shares then outstanding at a meeting called for that purpose in such manner
as shall be prescribed by the by-laws. Any and all shares as permitted by
this section shall be deemed fully paid and non-assessable and the holder of
such shares shall not be liable to the corporation or to its creditors in re
spect thereof."
The Act by its terms does not apply to moneyed corporations or corpora
tions subject to the state Public Service Commission.
" The Corporation Company of Delaware in one of its circulars, relative
to the Delaware statute of March 2o, 1917, authorizing the issue of stock
without par value, said :
"Stock without par value can be issued full paid in any desired amount
for contracts, patents, mines, oil leases, services and similar considerations
whose real value generally cannot be accurately estimated. The operation is
merely an exchange of property for shares without any dollar mark of value
being placed upon the property or the shares and it is not open to question.
It insures future stockholders absolutely against liability based on over
valuation of assets.
"Stock without par value can be issued full paid by a corporation at any
593
sents, and the public still compares the market price of such stock
with $1oo par, without regard to whether or not the stock is without
par value. Even the courts in construing these new statutes, do so in
that frame of mind.20. In fact under the New York statutes
some par value had to be recognized and so the certificate of incorprice, or for any consideration that will meet the requirements from time to
time,thus as the actual value of the stock varies, the price at which it is
issued can vary and no circuity, evasion of the law or fictitious valuation is
necessary."
In the hearings before the Joint Interstate Commerce Committees of the
Senate and House at Washington in regard to railroads, on December 2nd,
1916, Senator Cummins said (p. 399) in regard to the suggestion of the rail
roads that they incorporate under federal charters and issue stock without
par value, "I recognize that it is a method. That simply deludes the country,
that is all. It avoids realization of the fact that the value of the property is
less than the capitalization."
"A foreign corporation with shares having no nominal or par value may
be allowed to do business in Kansas. North American, etc. Co. v. Hopkins,
181 Pac. 625 (Kan., 1919), involving a Delaware corporation, the court saying
that the license fee paid to the state could be ascertained by ascertaining what
property was represented by such stock. A foreign corporation having stock
of no par value may be required, in qualifying to do business in the state, to
pay a license fee based upon a value of $1oo per share. Detroit, etc. Corp. v.
Vaughan, 178 N. W. 697 (Mich., 192o), 19 M1ch. L. Rev. 95. This last case
also involved a Delaware corporation, and the court pointed out that the
Delaware statute provided that as to franchise taxes such stock without par
value was to be taken as of the par value of $1oo each. A foreign corporation
having stock without par value is entitled to a certificate from the Secretary
of State of Missouri to do business in that state, even though the Missouri
statutes do not provide for such stock. State v. Sullivan, 221 S. W. 728 (Mo.,
192o). Here also a Delaware corporation was involved, and the same pro
vision in the Delaware statutes was pointed out Tn this Missouri case the
court intimated (p. 737) that the holders of shares without par value might
be liable to corporate creditors for the difference between the fixed value of
their shares and the amount paid for them, "just as they would be if the
shares had a par value", but it is difficult to understand this statement.
By the Act of Congress approved April 5, 1918, known as the "War
Finance Corporation Act", 2o3, shares of stock without par value are to be
considered as of the par value of $1oo each. See Acts of Congress, 191 71918, p. 513. The Federal Revenue Act of 1918 provides that on the issue of
stock without face value a stamp for 5c per share should be attached, the
same as though it had a par value of $1oo, unless the actual value is more, in
which case the stamps shall be more. See Act of Congress of February 24.
1919, 1 1o7 (3), and there is a further tax of 2c per share on a transfer of
any share without par value unless it is worth more than $1oo (4). The New
594
MICHIGAN LAW REVIEW
poration, if stock without par value is issued, must state such stock
at $5 per share21certainly low enoughalmost a mining propo
sition.
The latest suggestion is that railroads might sell new issues of
stock at less than par value, if such stock be issued without par
value. This, however, would discredit the old issues. Those old
issues, representing cash at par, will sooner or later be protected by
the public, but if they are watered by the issue of new stock with
out par value, the public will take an entirely different view of the
matter. It would be like an issue of depreciated currency. For
illustration, the Pennsylvania Railroad has issued its stock in the
past at par, and sometimes more than par; for instance at 11o in
1913, and at 12o in 19o3. The present market price is about 7o. If
new stock were now issued at 7o or less, the holders of the old stock
would lose the protection which public opinion throws, or will throw,
around actual investments in railroads.22
The case is a little different with a private corporation, such as a
manufacturing or business corporation, where the government does
not regulate rates or prices, and hence the above objection as to
railroad stock may not apply. As to these manufacturing or busi
ness corporations if new capital is necessary and the outstanding
stock sells at less than par it is argued that new stock without par
value may well be issued and sold at about the market price and thus
fresh money obtained. Such a power, however, vested in the di
rectors would lead to abuses and, moreover, in most cases financing
could be done more easily and conservatively by issuing preferred
stock. In some instances in England as many as five classes of preYork statutes are practically the same. Stock Corporat1on Law, 21 (L.
1917, Ch. 5o1), and as to a sale of stock see Tax Law, 27o (L. 1913,
Ch. 779).
n Laws of 192o, Ch. 6o8, p. 155o, requiring the capital to be the preferred
stock, if any, plus "a sum equivalent to five dollars for every share authorized
to be issued other than such preferred stock." The previous statute of 1912
(L. 1912, Ch. 351), read five dollars or "some multiple of five dollars."
" I do not believe that stock without par value would help the railroads.
"The Transportation Act" of 192o does help them but not enough. My views
on that subject were expressed in the pamphlet I issued in December, 1920,
entitled, "Will the Railroad Act of 192o Solve the Railroad Problem?" Copies
of that pamphlet will be furnished free on application.
595
ferred stock have been issued from time to time, to meet the financial
necessities and possibilities of the company.23
It has been stated that this scheme of stock without par value is
a German device. That is a mistake. The early New England turn
pike charters did not contain any par value of the stock, nor, in fact,
did they specify the capital stock itself.2* The stock was without
par value, and was paid for in cash and not by property. It was with
out limited liability and could be assessed indefinitely, but the holder
could stop paying and forfeit his stock, unless he had expressly
agreed to pay. The stock was like the present "stock without par *
value", except that it was issued for cash and with liability, instead
of for property and no liability. On the whole stock without par
value looks like a skillfully devised scheme for issuing a maximum of
watered stock at a minimum risk. In the hands of reliable men it
may be all right, but not needed ; in the hands of unreliable men it
is all wrong. It conceals the mystery of the "water". The old turn
pike shareholders were neighbors and each knew the value of the
turnpike, but the modern buyer of stock has only a glimmering, and
even that is now taken away with no compensating advantages. In
vestigators will grow wary of stock which dares not state on its face
how much money or property it represents. The old law, even with
its feeble liabilities, had some restraining influence on the cupidity of
promoters; this law has none. While investors do not object to
liberal profits to promoters, yet they do object to unfair profits in the
way of too many shares to pay reasonable dividends. Investors do
not know, and have no means of knowing what a promoter pays for
the property he capitalizes. Shares without par value conceal what
money or property a share really represents.
The English way is better. In a blue book published by the
English Government in June, 19o7, the Comptroller of the Com
pany's Department made the following statement in regard to the
Acts of Parliament on the subject of corporations :
"The trend of recent legislation in this country has been to
"See Corry v. Londonderry, etc. Ry., 29 Beav. 263 (186o).
"Middlesex Turnpike Co. v. Swan, 1o Mass. 384 (1813). The charter
of the Worcester Turnpike Corporation, Laws of Massachusetts, 1806, Ch.
67, p. 15, is a good illustration of those early charters. No capital stock is
specified and no par value of shares is specified.
59
MICHIGAN LAW REVIEW

endeavor to afford information concerning joint stock com
panies to all who may seek for it, on the ground that publicity
is the best protection which can be devised for the benefit of
creditors and of investors, and that, moreover, it is fair to
demand publicity of companies and to compel disclosure of
material facts by them in return for the privilege of limited
liability. With regard to the protection of creditors and in
vestors it has been truly said that legislation cannot protect
people from the consequences of their own imprudence, reck
lessness or want of experience. Nor can the Legislature sup
ply them with prudence, judgment, or business habits. It
can, however, make it possible for the creditor or investor to
obtain the information necessary to enable him to form a
judgment."
How have the English dealt with this whole subject? England is
the source and natural home of the promoter. The British Empire
extends throughout the world, and finds itself compelled, like the
Roman Republic, to absorb new countries for the preservation of
what it already hasa process which will require the co-operation
of all branches of the Anglo-Saxon race. Each new territory ac
quired opens new enterprises, the capital for which is raised in Lon
don. Hence there has developed in England a system of organizing
companies to operate in distant lands. This system was, and is, car
ried on by financiers, promoters, prospectuses and offerings of stock
to the public. Abuses crept in. Frauds were perpetrated on the pub
lic, by the promoters purchasing property at a low price and then
selling it to a newly organized company at a high price, in exchange
for stock, and then selling that stock to the public. Later when the
enterprise dwindled or collapsed, and when recourse was had to the
courts, it was found that the legal remedies availed little. The money
was gone. On account of the many frauds perpetrated upon the
public by the issue of stock for property taken at a gross over-valua
tion, Parliament, in 1867, passed an act requiring all contracts where
by stock was issued for property or services to be publicly registered,
under penalty of the payment being void.25 In 19o8 Parliament en"3o and 31 V1ct., Ch. 131, 25. "Every share in any company shall be
deemed and taken to have been issued and to be held subject to the payment
of the whole amount thereof in cash, unless the same shall have been other
597
acted a new statute on this whole subject. The issue of shares is

strictly regulated.29 Particularly are prospectuses, which are issued
to sell the shares, regulated by this Act of Parliament.*7 Lord Chan
cellor Halsbury summarizes the remedies of a shareholder for fraud
in these respects, as follows :
"1.
Defence of misrepresentation to an action for calls.
"2. Rectification of the register of members and conse

quent relief.
"3. Rescission of the contract.
"4.
Damages in an action of deceit.
"5. Damages under the statutory provisions replacing the

Directors Liability Act, 189o.
"6.
Criminal proceedings."28
This certainly looks like a formidable list of remedies, but an

English court, as late as 19o4, said:
"I hope the day may come when it will be gravely considdered by the Legislature whether it is not for the advantage
of the community, and in particular of the commercial com
munity, that an Act should be passed that in all cases the full
nominal value of a share shall be paid in cash and nothing
else. I am satisfied from my own judicial experience in
the administration of companies that such a law would
have a tendency to benefit the companies themselves, and
also to check a great deal of unwholesome speculation on
the Stock Exchange which is largely fed and supported by
operations undertaken by vendors, promoters, and others, for
the purpose of unloading fully paid shares which they have
been allowed to satisfy by giving what is called money's
worth instead of making a cash payment."29
wise determined by a contract duly made, in writing, and filed with the reg
istrar of joint-stock companies at or before the issue of such shares."
"See Laws of England, by Halsbury, Lord High Chancellor, Vol. V,
pp. 87-92 (1o1o).
" See Halsbury, pp. 12o-142.
" See Halsbury, pp. 127-142.
"Moseley v. Koffyfontein Mines, Ltd., [1904], 2 Ch. 1o8.
598
MICHIGAN LAW REVIEW
This proposed reversal to the old time method of issuing stock

for cash only will not be adopted, but the above quotation shows how
the English are troubled with this same problem. Neither is it at
all likely that England will adopt the American plan of Commissions,
approving such issues of stock for property before such issues are
sold to the public, because London promotions cover enterprises all
over the world, and a London Commission could not possibly pass
intelligently on the value of foreign concessions, prospects, prop
erties and values. In America this phase of the problem does not
face us, our corporations being at present confined almost exclusively
to domestic enterprises, but as America broadens and spreads abroad
in its investments, foreign enterprises will be capitalized in America
and the stock sold. Then, too, American Commissions will find it
difficult to pass on the actual value of foreign concessions, prospects,
properties and values. Furthermore, there is danger in Commissions
approving issues of stock, in that the approval of a Commission is
an official approval, and if mistakes are made, as made they surely
will be, the public will buy the stocks relying on such approval.
It will be seen that the whole subject is still in the melting pot. So
far the speculative proclivities of the Anglo-Saxon race have outmaneuvred the law.
W11x1am W. Cook.
New York, N. Y.
RENT REGULATION UNDER THE POLICE POWER

CONDITIONS resulting from the widespread housing shortage
caused by the cessation of building during the war have given
rise to legislation which must seem startling indeed to much of the
legal talent surviving from a generation ago. The outstanding
example is to be found in the New York laws which so far have
succeeded admirably in eluding the constitutional pitfalls relied
upon to nullify them. Three provisions have borne the brunt of
the attack. The first prevents the recovery of an unreasonable rent
in an action at law, and places the burden of showing reasonable
ness upon the landlord.1 Another suspends for two years the land
lord's right to maintain summary proceedings for dispossession
except in four instances.2 These are: (a) where the tenant is
objectionable, (b) where the landlord, being a natural person,
desires the premises for his own personal use, (c) where the land
lord desires to construct a new building on the site of the old one,
and (d) where the building has been sold to a cooperative apart
ment company. A third provision suspends the right to maintain
ejectment in the same manner.3 In general, these provisions have
been sustained,4 but the last was declared invalid by the Supreme
Court, Appellate Division of the First Department, in Gttttag v.
Shatzkin,9 chiefly on the ground that it impaired the obligation of
existing contracts in that it was the final enactment of the legisla
ture culminating in the removal of every remedy, excepting in the
particular instances stated, of an owner for the recovery of the
possession of real property occupied by tenants whose terms had
expired and who were under contract obligations expressed in the
1 C. 944 amending c. 136 of the April Laws.
8 C. o42. Also c. 045 (unreasonableness a defense in action for summary
eviction for non-payment of rent).
C. 947.
4Ullman Realty Co. v. Tamurt, 185 N. Y. S. 612; Levy Leasing Co. v.
Siegel, 186 N. Y. S. 5; People v. Fagan, 186 N. Y. S. 24; People v. La Fetra,
186 N. Y. S. 58; Brown Holding Co. v. Feldman (D. C, S. D., N. Y., Dec.
IS, 192o),
186 N. Y. S. 47 (Dec. 24, 192o).
6oo
MICHIGAN LAW REVIEW
leases or implied by law to vacate the premises and surrender pos

session thereof to their landlord.
The evils sought to be remedied are the charging of extortionate
rentals made possible by the shortage, coupled with the fact that
shelter is a necessity, and the impending wholesale evictions due to
the inability of thousands of families to pay increased rentals.* In
preventing the recovery of unreasonable rentals the legislature
might seem to have achieved all that is desired, inasmuch as the
landlord no longer has an object in exchanging one satisfactory
tenant for another. Practically, however, it is obvious that the
provision is futile so long as the landlord retains a menacing weapon
over the head of the tenant such as the possibility of eviction with
out shelter available elsewhere. The net result of the legislation is
to prevent the landlord from making an arbitrary change of tenants
from which he can derive no lawful gain. If he desires to continue
to use his property in the business of renting, and has a satisfactory
tenant paying a reasonable rental, he has all that he is entitled to.
This should be borne in mind throughout.
The chief constitutional objection, of course, is that the landlord
is deprived of his property without "due process." The answer is
that the business of renting houses is affected ''with a public inter
est," and therefore subject to regulation under the police power.
If the regulation of the housing business is a proper exercise of
the police power, there remains the question of whether the means
adopted are reasonably related to the end sought to be accomplished.*
It is not proposed to enter into any extended discussion as to when
businesses or property may be said to be so affected, but it is sub
mitted that the principle of Munn v. Illinois3 has been extended to
nothing more closely analogous than the business of furnishing
shelter to human beings. Whether the test applied is to be the
peculiar possibilities of the particular industry as an instrument of
oppression under existing economic conditions,0 or what amounts
'Message of the Governor (Sept. 2o, 192o) ; Levy Leasing Co. v. Siege!,
186 N. Y. S. 5 ; Report of the Joint Legislative Committee on Housing, Sept.
2o, 1920.
' Ullman Realty Co. v. Tamur, 185 N. Y. S. 612.
*Munn v. Illinois, 94 U. S 113.
19 M1ch. L. Rev. 74.
RENT REGULATION
601
to the same thing, perhaps, whether the social interest is sufficiently

strong to counterbalance the interference with individual interests,10
the business of renting seems a proper one for regulation. And the
means are clearly reasonably related to the particular ends sought
to be accomplished, despite the objection that they do not add one
square foot to the supply of dwelling accommodations.11
A recent writer presents an interesting but, it is believed, an
unsound view as to the nature of the New York laws and the basis
on which they rest, or should be rested.12 The theory advanced is
that an appeal to the police power is not only unnecessary but
improper. The provision preventing the recovery of an unreason
able rental is merely declaratory of an ancient power of courts of
equity not dependent on any statute, namely, the power to set aside
contracts shown to have been procured by duress. The provision
suspending the right to maintain summary proceedings is justified
on the ground that there is no vested right in a statutory remedy,
and that the legislature can take it away altogether, if it so desires,
by virtue of its ordinary power to legislate without any reference
to police power. The provision suspending the right to maintain
ejectment is apparently ' abandoned as hopeless. The shortage,
together with the fact that housing is necessary, is relied upon as
constituting such duress as to make the lease voidable. It works
out thus: The landlord brings his action for the recovery of rent,
and the tenant interposes the equitable defense that the contract
was procured by duress. The contract is then set aside and the
landlord falls back upon the implied contract and recovers the rea
sonable value for use and occupation. The flaw in the theory seems
to be that there is no duress of the sort for which equity gives relief.
True, the doctrine of duress has been considerably extended and
some courts have used language indicating that all that is necessary
is that the freedom of will of the contracting party is overcome so
that there is no real meeting of minds." One element of the early
law still persists, however, and that is that the pressure must be
"33 Harv. L. Rev. 838.
u Judge Blackmar (dissenting) in People v. Fagan, 186 N. Y. S. 24, 36
(Dec. % 192o).
""The New York Landlord and Tenant Laws," VI Corn. L. Quart. 1.
15 M1ch. L. Rev. 228.
6o2
MICHIGAN LAW REVIEW
wrongful, and it is not sufficient that a party is constrained to enter

into a transaction by force of circumstances for which the other
party is not responsible.14 This theory would take care of the objec
tion that preexisting contracts are impaired, in rather neat fashion,
but the writer is led to an odd conclusion as to the validity of the
legislation if applied to subsequent contracts. He says that if it is
held to apply to these a premium is placed on fraudulent conduct
on the part of the tenant, in that he may accept any terms offered
by the landlord for the sake of remaining in possession, knowing
that the contract is presumptively void if the rent is higher than
that of the year previous. It is rather difficult to perceive that any
unconscionable advantage is taken by the tenant under the circum
stances. He also concludes that it is invalid if applied to subse
quent leases as an unconstitutional interference with private prop
erty, because it prevents the landlord from leasing his property at
its market value. Obviously, this begs the whole question and is
scarcely consistent with the duress theory. The only possible basis
on which the legislation can be sustained would seem to be the
police power of the state.11
Although the housing situation has resulted in a mass of legisla
tion touching .various aspects of it,19 there seems to have been almost
no litigation outside of New York except in the District of Colum
bia. In May of 1918, Congress passed the Saulsbury resolution,"
which was held unconstitutional in Willson v. McDonnell, This
prohibited eviction so long as the tenant paid the rent and was
satisfactory, in effect prolonging existing leases for the duration of
the act. This was held invalid on the ground that as it affected
only existing leases it discriminated in favor of landlords whose
property was then unincumbered. The court refused to consider
the question as to whether or not the business of renting had become
" WausTON on Contracts. Vol. Ill, pp. 2833, 2836.
"The cases suggest no other basis. The situation has been said to be
such as to warrant the exercise of the power of eminent domain. Ullman
Realty Co. v. Tamur, 185 N. Y. S. 612; Willson v. McDonnell, 265 Fed. 432.
Cf. Opinion of the Justices, 211 Mass. 624.
"See "Rent Regulation and the Housing Problem" in the Journal issued
by the American Bar Association, January, 1o21.
"4o Stat, at L. 593.
"Willson v. McDonnell, 265 Fed. 432.
RENT REGULATION
6o3
"affected with a public interest." In October, 1919, Congress

adopted the Ball Rent Law,19 which was held unconstitutional in
Hirsch v. Block. The provisions covered much the same ground
as the New York laws except that a rent commission was provided
for, with power to regulate rents and service, whereas what amounts
to regulation of rates in New York is left to the courts. A New
York case21 distinguishes the Ball law on the grounds that it was
wider in scope than the New York laws and took away the right
of trial by jury in actions to recover land in violation of the Sev
enth Amendment to the Federal Constitution. Whatever merit
there may be in such distinctions, it is clear that the Court of
Appeals for the District of Columbia would not uphold the New
York legislation nor any other. The court says in part :
"Plaintiff had a vested estate and a reversion in fee in the
property in question to come into possession on January 1,
192o. * * * The right of reversion is a property right of
which the plaintiff cannot be divested except by due process
of law. * * * Nor does this amount to the taking of private
property for public use. Plaintiff and defendant are private
citizens, engaged in a private business. * * * The power to
fix rental rates between private individuals is not analogous
to nor controlled by the decisions which have upheld the
power of the legislature to fix rates for service where the
owner has devoted the business affected to a public use. * * **
In no case where the legislative power to fix rates has been
upheld has the power to continue existing contracts in force
after the time fixed by the parties for their termination, or
to require the owner of the property to continue the business
been sustained. * * * A public interest cannot be thus cre
ated, or property rights be divested, by an arbitrary exercise
of the police power."
Contrast with this the much-quoted recent opinion of Judge
"Bal1. Rent Law, 41 Stat, at L. 298.
"Hirsch v. Block, 267 Fed. 614. Cf. dissenting opinion of Chief Justice
Smyth.
M Ullman Realty Co. v. Tamur, 185 N. Y. S. 612.
6o4
MICHIGAN LAW REVIEW
Baker in the case of the American Coal Mining Company v. The

Special Coal and Food Commission of Indiana:'-2
"Are the sovereign people helpless in such a situation?
(oppression by extortionate rates for fuel and housing made
possible by shortages). They certainly are if the Fourteenth
Amendment stopped the narrowing of these various circles
within which persons theretofore might move freely with
respect to life, liberty and property. But otherwise not. The
police power is continuous. It has always existed, and nec
essarily must always exist. And it is as wide as any con
ceivable sovereignty can be."
The District of Columbia court evidently became so engrossed
in a study of form that substance was completely ignored.
The obvious advantages of creating a rent commission to
regulate housing conditions generally, and particularly rates, led
to a proposed statute by Professor Wigmore in a recent article in
the Ill1no1s Law Rev1ew.23 Professor Wigmore rightly contends
that a court is a poor piece of machinery for rate-making, especially
since, theoretically, the effect of its decision must be confined to the
case before it. The proposed statute applies only to future leases
and provides no remedy for the wholesale evictions against which
the New York laws have attempted to guard, other than to take
away any substantial reason the landlord might have for making a
change by limiting his return for the future to a reasonable amount.
The author makes three claims of superiority for his measure which
merit attention: First, that it is constitutional. This is conceded,
the Court of Appeals for the District of Columbia notwithstanding.
But it is yet to be demonstrated that the New York legislation is
less meritorious in this respect. Second, that it is fair in that it
imposes no arbitrary rule, but enables discrimination to be made
between the grasping profiteer and the meritorious landlord. If
each gets what he is justly entitled to and no morei. e., a reason
able returnit is hard to see any possibility of such discrimination,
and it is equally difficult to see how rentals could be regulated on
"268 Fed. 563 (Sept. 6, 192o).
""A Constitutional Way to Reach the Housing Profiteer," 15 In. L.
Rev. 359.
RENT REGULATION
6o5
any other basis. The third advantage, that a commission is supe

rior to throwing the whole burden on the courts, may be conceded.
Legislation which leaves the landlord able to dislodge a satisfactory
tenant, however, would scarcely seem sufficient to counterbalance
the obvious objections on the policy side to any and all regulation
which will be discussed later.
Aside from the taking of property without due process, there is
but one other constitutional objection to the New York legislation
which deserves mention, which is that preexisting contracts are
impaired in violation of the Federal Constitution. This contention
is supported in the February number of the Harvard Law Rev1ew14
and by the Supreme Court, Appellate Division of the First Depart
ment, in Guttag v. Schatzkin,2* previously referred to. This view
is believed to be untenable. It is said that in every case in which
the impairment of existing contracts has been held valid the expla
nation is to be found in the fact that the contract apparently impaired
has been that of a state purporting to bargain away a part of its
sovereignty, in which case the contract is void ab initio, or that of
a public utility in derogation of its common law duty to render a
reasonable service to all, which is at least voidable. But it is con
ceded that a general law which incidentally impairs the obligation
of private contracts is not for that reason invalid, and a distinction
is attempted between such a law and the New York provisions on
the ground that the latter attack the contract directly by taking
away all remedies whereby the landlord can enforce the express or
implied contract in every lease to give up possession at the end of
the term. The primary purpose of the New York laws, however,
is to protect the individual, not for his sake but because of the legis
lative finding, as expressed in the law, that in so doing public
health, safety, and general welfare are best subserved.2'' If this is
conceded, the attempted distinction is meaningless, and the law is
clearly a general one which only incidentally impairs contracts
between individuals.
"This power, which in its various ramifications is known
"34 Harv. L. Rev. 426.
" Guttag v. Schatzkin, 186 N. Y. S. 47.
"Levy Leasing Co. v. Siegel, 186 N. Y. S. 5; Decision by the Court of
Appeals, March 9, 1921, reversing Guttag v. Schatzkin.
6o6
MICHIGAN LAW REVIEW

as the police power, is an exercise of the sovereign right of
the government to protect the lives, health, morals, comfort,
and general welfare of the people, and is paramount to any
rights under contracts between individuals. Familiar instances
of this are where parties enter into contracts, perfectly law
ful at the time, to sell liquor, operate a brewery or distillery',
or carry on a lottery, all of which are subject to impa1rment
by a change of policy on the part of the state, prohibiting the
establishment or continuance of such traffic ; in other words,
that parties by entering into contracts may not estop the legis
lature from enacting laws intended for the public good.'"7
To the examples mentioned may be added the numerous cases

where cities have passed ordinances restricting buildings of various
sorts, such as frame houses, in particular districts. Preexisting
contracts are often 1mpaired, but the ordinances are nevertheless
valid.28 The principle underlying these cases is indistinguishable
from that which is applicable here. Why should contract rights be
more sacred, where public welfare is involved, than other property
rights? It is scarcely an answer to say that to hold otherwise is
"going counter to the plain words of the Constitution." In revers
ing Guttag v. Schatzkin, the Court of Appeals of New York, in a
case decided since the foregoing was written, said :
"Laws directly nullifying some essential part of private
contracts are rare, and are not lightly to be upheld by heavy
and sweeping generalization on the common good, but no
decision upholds the extreme view that the obligation of pri
vate contracts may never be directly impaired in the exercise
of the legislative power."
The real distinction would seem to be between laws passed for
the general welfare and those primarily for the benefit of one of
" Manigault v. Springs, 199 U. S. 473.
"Salem v. Maynes, 123 Mass. 372: Knoxville v. Bird, 12 Lea (Tenn.)
121; New York v. Nerdje, 68 App. Div. 37o; see also People v. Hawley, 3
Mich. 336; Re Ten-Hour Law for Street Ry. Corps. (R. I.), 54 Atl. 6o2;
Commonwealth v. Intoxicating Liquor, 115 Mass. 153; Jamieson v. Indiana
Nat. Gas and Oil Co.. 128 Ind. 555.
RENT REGULATION
6o7
the contracting parties.29 The latter could never be justified as

police power, but the former cannot be handicapped by contracts
between individuals.
On March 7 an opinion was handed down by the Court of
Appeals sustaining the law on all points,30 and there would seem to
be no doubt as to the constitutionality of the entire program. Some
very serious questions of policy remain unsettled, however Noth
ing is more obvious than the fact that any restrictive legislation is
bound to drive capital out of the field and postpone the day when
the fundamental evil, the shortage, is remedied.31 Accompanying
the newspaper report of the decision is the demand for repeal of
the laws by the real estate associations, and the assurance that there
will be no building while they remain in existence.32 The choice
between immediate relief and the indefinite postponement of ulti
mate relief, unless the state itself goes into the building business,
is a most difficult one, and it remains to be seen whether the New
York legislature has chosen wisely. The choice is for the legislature
alone, however, not for the courts.
A1.an W. Boyd.
"Freund on Ponce Power, pp. 583, 584.
"New York Times, March 9, 1921.
""How to Meet the Housing Situation," Atlant1c Monthly, March,
1921, p. 4o4; "Rent Regulation and the Housing Problem," from the Journal
issued by the American Bar Association, January, 1021.
"New York Times, March 9, 1921, p. 4.
DEPARTURE FROM PRECEDENT

4<<TTTlTH the death of the reason for it, every legal doctrine
VV dies.' * * * The fact that the reason for a given rule
perished long ago is no just excuse for refusing now to declare the
rule itself abrogated, but rather the greater justification for so
declaring; and if no reason ever existed, that fact furnishes addi
tional justification. The doctrine of stare decisis does not preclude
a departure from precedent established by a series of decisions
clearly erroneous, unless property complications have resulted and
a reversal would work a greater injury and injustice than would
ensue by following the rule."
This quotation is taken from Thurston v. Frit2, 91 Kan. 468,
wherein the Supreme Court of Kansas, with but one dissenting
voice out of seven, held that dying declarations are admissible in
civil as well as in criminal cases. Furthermore, the court declared :
"The rule admitting and the rule restricting [dying dec
larations to criminal cases] are entirely court made, and
when the reason for this restriction to cases of homicide
ceases, if it ever existed, then such restriction should like
wise cease."
From these excerpts, it is submitted that the following is a fair
deduction, or, perhaps, merely a restatement in slightly modified
language: The Supreme Court of Kansas has gone on record as
willing to overturn any common-law principle which, upon exam
ination, proves to be based on reasons which are inadequate, or on
no reason at all, except when property rights would be disturbed.
For this purpose, it may be proper to classify common-law rules
broadly into three classes, namely: (1) those which rest on sound
reasons; (2) those which rest on inadequate reasons; and (3)
those in reference to which reasons pro and con are about evenly
balanced.
As to those which rest on sound reasons, it would unquestionably
be considered impertinent to cite an example. The law of torts,
perhaps, comes as close as any branch of the law in resting on a
firm foundation of reason. But though many common-law doc
6o9
trines have attained the ideal of the perfection of reason, it would

be impossible for the most expert statistician and jurist to say just
what percentage of the sum total of common law principles has
reached the pinnacle on which Coke and Blackstone seemed to per
ceive the whole body of English law.
As to the second class of rules, namely, those based on inade
quate reasons, certainly any critical mind trained in the law will,
on a moment's reflection, recall not a few, the number depending
on the radical or conservative temperament of the individual. This
second class may be subdivided into principles resting on reasons
which have ceased to operatein other words, reasons which have
become obsolete, and those which, while often supported apparently
by a flood of reasons, will be found on closer inspection to be unsup
ported by any reasons which can withstand the dry light of the
logician. Instances of reasons which have ceased to function may
be readily gathered in the field of the domestic relations, owing to
the radical changes in the education and attitude of society towards
married women.1
It is this second subdivision of the second class which presents
the most interesting field for speculation. The limits of space for
bid any exhaustive discussion of such cases about which, it must
be admitted, plenty of room for differences of opinion exists.
In only too many instances, however, the modern teacher of law
finds himself confronted with the same perplexities as the teacher
of geography in ancient days. The earth is flat and rests on a man's
shoulders. The man stands on a turtle. "But. teacher, what does
the turtle stand on?" There is nothing left to do but spank the
inquisitive child for his impertinence. A release of a debtor by
the creditor does not release the surety, if the creditor expressly
reserves his rights against the surety. Why? Because such a
release is construed to be a limited covenant not to sue. What of
it? Well, a limited covenant not to sue cannot be pleaded in bar
of an action on the original obligation, but a release can be so
pleaded. Why? We have now reached the realm of the imperti
nent. Why do contracts not under seal require consideration?
Why do not two reciprocal offers equal an offer and an acceptance ?
Why cannot the man who captures the burglar without having pre1 See Harrington v. Lowe, 73 Kan. 1.
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MICHIGAN LAW REVIEW
viously heard of the reward offered for such capture recover the
reward? Is he not more praiseworthy than the sordid person who
works solely for pay? Why do letters of acceptance alone ever
take effect from the time they are mailed? How do they differ
from letters containing offers or letters revoking offers? While I
am not prepared to say that the answers which the common law
gives to the above questions are incorrect, might not a good argu
ment be made today on the other side and with splendid reasons
to back it?
The cases just enumerated, like the effect of the release of a
debtor with express reservation of the creditor's rights against the
surety, wherein the rule of law may be found to be supported by
inadequate reasons, should be distinguished from those doctrines
which, while apparently supported by highly technical reasons, are
really grounded on firm foundations which may not be evident on
the surface. Thus, take the Rule in Shelley's Case. Possibly, in
most cases, it has carried out the actual intention of the testator or
grantor. When he said, "To A for life and remainder to his heirs,"
he may have intended a fee simple for A. The words "for life"
and "remainder" are probably no less technical verbiage to a lay
mind than the word "heirs." So, also, take the highly fanciful
maxim that an accord without satisfaction is void. If I agree with
X that, if he paints my house, we will "call it square" on that hun
dred dollars he promised to pay me for a horse which I sold him,
why should I not be permitted to sue him for the purchase price of
the horse if he fails to paint my house? Does not the old maxim
about an accord also carry out what was probably the understanding
of the parties? Hence, in all cases, before rejecting a doctrine
because it is apparently unsupported by reasons which satisfy us,
is it not well to see if we cannot discover a sounder reason than is
generally given in support of the doctrine which we contemplate
throwing into the discard? Doubtless, the old and fanciful reasons
were often merely the mask or plumage of the more solid substance
which lay underneath and which we must now take pains to uncover.
The articles of legal antiquarians are often fascinating. Doubtless
they are generally, if not always, written by persons who first
learned much of the law of their own day and then started to read
legal history backwards. In such cases, the task of the writer is
611
often left incomplete, possibly from necessity. He carries us back

one or two stages, and increases without satisfying our curiosity.
The plot only thickens. He gives us the reasons for present rules,
but the reasons which he succeeds in unearthing are often as mys
terious as the principles themselves. Getting down to bed rock is
often as difficult in legal history as in a city built on sand. The
people of olden days had good thinking caps, but we cannot always
get their point of view.
The last class of rules which I have enumerated, namely, those
in which the reasons pro and con are pretty evenly balanced, are
not negligible. . Where one of two innocent parties must suffer by
the fraud of a third, one might think that the only fair and
just thing to do many times is to split the difference and divide the
loss. But the courts seem powerless to adopt the suggestion, except
in rare cases, as in admiralty. What is the result, in such cases as
that of the fraudulently issued bill of lading or of the negligent
bank correspondent who lets the debtor escape? Sharp conflicts of
authority and hosts of dissenting opinions, to say nothing of 5-to-4
decisions. So, also, take the case of the anomalous endorser prior
to the general enactment of the negotiable instruments code. Why
were there not two, but a dozen lines of authority ? Simply because
there was about as much to be said for one position as another.
In the light of the foregoing premises, is it not evident that, if all
common law rules are to be reexamined in the light of cold reason,
a very considerable portion of our law hangs today in the balance ?
Furthermore, the question may be asked in all seriousness, not
merely whether it is practicable or expedient, but whether it is even
possible to cut loose from tradition and precedent and establish our
law upon a basis which shall be purely logical ? Regardless of what
may be the case in the field of pure mathematics, we certainly can
not ignore the vast room for differences of opinion in the field of
social relations. It may be illogical to exclude dying declarations
in civil cases, but not in criminal cases. Well, what of it? The
following topic might furnish interesting material for a debate
between two groups of law students: Resolved, that the Supreme
Courts of the United States, and of each state, should adhere to
the practice of the House of Lords in never reversing its judicial
decisions.
6l2
MICHIGAN LAW REVIEW
If we are not prepared to accept the test of reason as to the

basis of departure from precedent, but are, nevertheless, willing to
allow the courts the privilege of reversing their decisions, upon
what basis can such reversal ever be predicated? Here is my answer When it is quite clear to the court that the interests of society will
be benefited considerably more than injured by departure from
precedent, in such cases only is such a departure desirable. In
other words, the test is social utility, not reason or logic. It is the
pragmatic one, how will it work in society? Not, is it logical?
It may be contended that these two theories are the same, because
social welfare will be best promoted by a logical code of law. Now
I will confess that this raises two perplexing questions which I am
not prepared to answer. Though, doubtless, in the course of ages,
society will be best served by a strictly logical code of laws, who
can tell us how soon the angel Gabriel expects to toot his horn on
things terrestial? If we have aeons yet ahead of us and are thor
ough converts to the doctrine of mundane preparedness, then today
seems to be the time to make the shift. But this leads us to our
second question, how much does the present generation owe to pos
terity? Are we morally bound to cast ourselves at once on a sea
of uncertainty for the sake of people of whom we shall even see but
few, merely because they are going to be our descendants ?
Aside from the vague speculations in the previous paragraph on
the question of the future of society, it is obvious that in many
instances a precedent, no matter how illogical and arbitrary,
becomes, in the course of time, like beauty, "its own excuse for
being." It is not a case of following precedent for precedent's sake,
but for society's sake. Members of the legal profession, to say
nothing of laymen learned in the law, become accustomed to settled
principles and regulate their conduct accordingly. And, in the
opening words of Justice Benson, dissenting, in Thurston v. Frits,
"The rule that dying declarations are only admissible where the
death of the declarant is the subject of the investigation is settled
as firmly in the jurisprudence of this state as any rule can be which
is not established by constitution or statute." Probably no lawyer
would -attempt to name any principle of the common law better
settled than the one in question. Hence, it is submitted that such
a principle should be overturned only when the good of society will
613
be promoted thereby, taking into account the fact that laws which
are settled and certain are one of society's most priceless assets,
and that even unfairness, as the old maxim goes, is, often at least,
preferable to uncertainty. In the earlier days, when parliament
met but rarely, and the calling of such meeting was little short of a
mobilization of troops to engage in civil war, there was great reason
for resort to fictions, equity, and the various back-door methods of
changing the law. But today, with frequent sessions of the legis
lature, is not the departure from judicial precedents less necessary?
Moreover, the test of social utility is involved in the language of
the majority of the court as quoted at the beginning of this article,
namely, that the rule of stare decisis does not preclude a departure
therefrom, "unless * * * a reversal would work a greater injury
and injustice than would ensue by following the rule."
Perhaps it may be advisable to examine Thurston v. Fritz a little
more closely. Stated in its very lowest terms, the facts and decisions
were these : R conveyed a farm to F. F insisted that the purchase
price agreed upon was much less than was claimed by T, who, as
administrator of R. sued F to recover the purchase price. At the
trial, counsel for the plaintiff offered in evidence a signed state
ment made by R shortly before his death and signed in the presence
of several witnesses. The action of the trial court in rejecting the
document as evidence was held to be error by the Supreme Court.
Justice Benson dissented, inter alia, on the ground that the mouth
of the survivor having been closed by statute, where the adverse
party is the personal representative of the deceased person to the
transaction, the dying declaration of the deceased should not be
admitted, in the interest of equality. Justice Benson might also
have mentioned the fact that depositions may be taken and intro
duced by either side in a civil action, though only by the defense
in criminal cases.
The majority opinion is based primarily on criticisms of the rule
excluding dying declarations in civil cases by Professor Wigmore
in his work on Ev1dence. The court also criticizes the prevailing
rule as being "entirely court made," and gives preference to the
authority of Professor Wigmore to earlier decisions of its own.
Moreover, Professor Wigmore, in Section 1436 of his work, criti
cizes the exclusion of dying declarations from civil cases as a "heresy
'
614
MICHIGAN LAW REVIEW
of the present [nineteenth] century which has not even the sanc
tion of antiquity." Truly, a new day is dawning in American juris
prudence if a rule of law is open to criticism because it is "entirely
court made," if text writers, however learned, are to be followed
instead of court decisions, and nineteenth century law is to be
dubbed parvenu. We have been taught for ages that the glory of
the common law is the fact that it is built, precedent upon prece
dent, like the coral wreaths, or a brick house, and that the common
law, unlike the Roman law, gives preference to precedent rather
than the writings of jurists. As to nineteenth century precedents
lacking the sanction of antiquity, I insist that I, too, know the stuff
whereof after-dinner speeches at meetings of bar associations are
made, about the ancient and venerable character of the common
law. But take any collection of leading cases, or case-book, or list
of ruling cases in almost any branch of the law, and subtract from
it all decisions dated 18oo or later, and see how many you have left !
I know that the germs of the present day principles can be found
in the old cases, just as every acorn may contain, potentially, a giant
oak. But it would be rather difficult to predict the exact dimen
sions of the tree from the acorn before the tree actually grows.
How much did Blackstone say or know about agency, partnerships,
corporations, constitutional law, or even contracts as we understand
those subjects today? At all events, Thurston v. Fritz tends to
raise the dignity and importance of the legal scholar, and perhaps,
even on the test of social utility, time will vindicate its position.
The most that many a legal scholar has hoped for has been the
making of an impression on law students, changes through legisla
tion, the acceptance of his notions where the law is not clear or
has not been passed upon by the courts. To be able, in addition,
to pull over some old pillars, Samson-like, is indeed an accomplish
ment.
H. W. Humble.
University of Kansas.
HISTORY OF MICHIGAN CONSTITUTIONAL PROVISION

PROHIBITING A GENERAL REVISION OF THE LAWS
ALONE among the states of the Union, Michigan has, since
1850, prohibited any general revision of the laws and per
mits only a compilation of laws in force without alteration. As
practically all the neighboring states, as well as New York, from
which much of the early legislation of Michigan was derived, have
continued to revise their statutes from time to time, it may be inter
esting to see why Michigan alone has thought it desirable not only
to stop the practice which it followed until 185o, but to prevent
effectually its legislature from ever attempting it in the future.
Michigan became a territory in 18o5, and from July 1 of that
year to 1824 its legislature consisted of the governor and three
judges. From 1824 until statehood the legislative council, first
appointive, then elective, became the legislative body.
The first publication of Michigan laws was the so-called Wood
ward Code, now a very rare book. It is a small octavo volume of
J79 pages, printed at Washington, D. C, in 18o6. Judge Wood
ward had been the leading spirit in the preparation and enactment
of the laws adopted from July to October, 18o5, at which time he
and Governor Hull left for Washington to secure some much
needed legislation from Congress on territorial subjects. Wood
ward remained at Washington and in the East for nearly a year,
and obtained authority from the Secretary of State to have the laws
printed.
The book contains thirty-four acts in all, printed in the order in
which they were adopted, and as printed the sections of the acts
are numbered consecutively through the book. It is in no sense a
code, however, as it does not attempt to state the whole body of
the law, but consists of separate enactments covering only those
subjects which the new government of the territory found most
essential.
The title page reads, "The Laws of Michigan, Volume 1," fol
lowed by a quotation from the .Eneid, addressed perhaps to Presi
dent Jefferson, whose faithful and admiring friend Judge Wood
ward was. The translation reads, (O thou) "to whom Jupiter has
616
MICHIGAN LAW REVIEW
granted the founding of a new city, and the ruling of proud peoples
with justice."
The volume contains an interesting preface by Judge Woodward
explaining the construction which the Governor and Judges of
Michigan had given to the clause of the Ordinance of 1787 empow
ering them to "adopt" laws.
Although eleven acts were adopted in 18o6, fourteen in 18o7, nine
in 18o8, thirty-seven in 18o9, ten in 181o, seven in 1812, the last one
only three days before the surrender of Detroit, there was no fur
ther publication of the laws of the territory until 1816.
The Americans retook possession of Detroit September 29, 1813,
but it was more than a year before the legislative part of the terri
torial government functioned. The first act adopted under the new
governorCasswas on the first day of October, 1814. Six acts
were adopted in that year and nineteen during the following year,
and by this time it was too plain to admit denial that the existence
of one hundred twenty statutes unprinted, and of necessity gener
ally unknown, was a gross injustice to the people of the territory.
The legislative journal for this period cannot be found, so that
we are ignorant of the time and form of the resolution to publish
these unprinted laws, but in 1816 there appeared a unique volume
in statute publication. It was printed in Detroit, was entitled "Some
of the Acts of the Territory of Michigan with the Titles and a Digest
of all of the acts of the said Territory now in force," and con
tained eight laws in full, the titles only of eight laws, and a digest
of fifty-six more. They were arranged alphabetically under the
general subject treated of in the act. The reason given for this
extraordinary action is found in an unsigned note at the end of the
volume stating that the funds at the disposition of the territorial
government were not sufficient to print a complete copy of all the
laws.
One title is, "An Act authorizing Aliens to hold lands in the Ter
ritory of Michigan, by purchase or otherwise," without any further
statement or explanation. One of the digested acts reads, "An Act
concerning the City of Detroit. This Act provides for the incor
poration of the City of Detroit," and this is all the information
furnished.
Under the title, "An Act concerning the Militia of the Territory
GENERAL REVISION OF THE LAWS
617
of Michigan," it is said the original roll of this law has been lost
and the only copy now to be found is so imperfect as to render it
inexpedient to print it."
As an example of the digesting process, the first section of the
act concerning forcible entry and detainer, as adopted, read (omit
ting the enacting clause), "That no person or persons shall hereafter
make any entry into any lands, tenements, or other possessions but
in cases where entry is given by law, and in such case, not with
strong hand, nor with multitude of people, but only in a peaceable
and easy manner, and if any person from henceforth do to the con
trary and thereof be duly convicted, he shall be punished by a fine."
The digested section reads, "Persons shall not make unlawful
entry into lands, nor lawful entry with force."
Some of the statutes digested, or indicated by titles, have never
yet been printed in full.
By whom this statute digesting was done is not known, but if the
same method were used upon our later compiled statutes all our
laws might be printed easily in one volume.
The book itself is of octavo size, contains 144 pages, and is
extremely rare. It is generally known as the Cass Code, although
that is as inappropriate a designation as in the case of the Wood
ward Code.
The Ordinance of 1787the constitution of the territorypro
vided that the Governor and Judges should adopt and publish the
laws. It might have been a serious question whether the ordinary
citizen who had no actual knowledge of the full letter of statutes
as adopted would be bound by such a condensation as was published.
Such a publication obviously was not a credit either to the terri
tory or to the United States, which through Congress had general
control of the territorial finances and conditions, and on April 24,
182o, an Act of Congress was approved authorizing the printing of
the laws of the territory in force. Under this law there was printed
in Detroit the so-called Revised Statutes of 182o, the title page
reading, "Laws of the Territory of Michigan, with marginal notes
and an index, to which are prefixed the ordinance and several acts
of Congress relating to this territorypublished by authority, 182o."
It actually was not printed until 1821, and contains statutes adopted
as late as July 3, 1821. On March 29, 1821, the Governor and Judges
-
618
MICHIGAN LAW REVIEW
passed an act that the edition of the statutes then printing be com
pleted to the number of three hundred copies and handsomely and
substantially bound. This direction was followed, and such copies,
few in number, as still exist are well bound in strong, well-finished
leather.
The volume contains one hundred and twenty-one acts arranged
without much regard to date of adoption or character of subject.
Of the laws printed, one was adopted in 18o5, one in 181o, three in
1815, three in 1817, eighteen in 1818, fifteen in 1819, thirty-nine in
182o, and forty-one in 1821. Five laws adopted in 1817, 1818 and
1821, and apparently in force, were not included in the volume. A
general repealing act, passed May 8, 1821, excepted from its opera
tion a number of statutes, and several of these excepted statutes
also were not included.
In evident preparation for this publication, many laws were passed
in 182o and 1821 covering subjects of previous legislation and
intended to replace them, and in that sense the collection might be
termed a revision.
This collection of laws met with general favor with the public
and also the lawyers, but when the first legislative council met in
1824, Governor Cass in his first message referred to some deficiencies
"in the Territorial Code"' which the council proceeded to correct.
Prior to this, in the same year, there was printed a small volume
entitled "Laws of the Territory of Michigan Compiled by the Legis
lative Board in the year 1824." It contained 29 acts passed in 1821,
1822 and 1823 and three resolutions.
At the second session of the first legislative council on April 21,
1825, a resolution was adopted which provided for the printing of
certain laws which were omitted from the 1820 volume, eleven in
all; also the Acts of Congress relating to Michigan passed in 1S25,
and the Executive Acts establishing county boundaries and fixing
county seats, and these were printed at Detroit in 1825 with the
acts of the session.
At the same session resolutions were adopted reciting that it was
highly important that the public acts of the territory be revised and
a plain and simple code of laws formed acceptable to the people of
the territory and calculated to promote their interest and protect
their rights.
619
The resolutions named five persons as a commission to revise the

laws. William Woodbridge, then secretary of the territory, received
the smallest number of votes, but in the enrolled resolution was
named first on the list, followed by Abraham Edwards, John Stock
ton, Wolcott Lawrence and William A. Fletcher.
The commissioners were directed to revise, consolidate and digest
the laws, making such alterations or additions as might be deemed
expedient, reporting the result to the legislative council at their next,
session, which was due to be held in November, 1826. Of this com
mission three were members of the council, Edwards, Stockton and
Lawrence, only one of them, Lawrence, a lawyer, but all men of
good standing, ability and experience. Woodbridge was secretary
of the territory, an able and experienced lawyer. Fletcher was a
young man who came to Detroit in 1821 and two years later was
appointed chief justice of the County Court of Wayne County.
Shortly after the session of 1826 was opened the resignation of
William Woodbridge as member of the revision commission was
presented to the council, accepted, and Asa M. Robertson (or Robin
son), a lawyer of Detroit, was appointed in his place.
During the session various bills, the result of the commission's
work, were presented, and on December 27, 1826, the commission
presented their final report to the council. In this report they stated
that they had digested the different statutes and provisions relating
to the same subject as far as practicable into a single statute. In
making alterations they had taken great care not to infringe upon
long-established principles, and where legislation on new subjects
was necessary they had supplied it.
Mr. Lawrence, one of the commission and also member of the
council, having the "plain people'' in mind offered a resolution,
which was duly adopted, providing that there be published with the
laws a table or explanation in the English language of the names of
writs and other process made use of in the statutes not expressed in
proper English words.
Accordingly, we find in the volume printed in 1827, preceding the
index, definitions or explanations of such words as bona fide, defea
sance, certiorari, venue, and other words and phrases, mainlv of
Latin origin, frequently used in statutes or leeal proceedings.
The result was a substantial, well-printed, indexed and bound vol
62o
MICHIGAN LAW REVIEW
ume of 7o9 pages, with marginal notes, the statutes relating to the
same general subject grouped together, in many cases only verbal
changes or changes in arrangement and phrasing being made, in
others entire statutes were retained bodily without any change, the
whole making a much more complete and systematic collection of
laws than had theretofore existed.
The sessions of the legislative council following 1827 were prolific
in new laws and amendments of old ones, so that in May, 1832, a
committee was appointed to inquire into the expediency of making
a general revision of the laws. This committee reported that there
were but few copies of the laws remaining undistributed and it was
inexpedient to republish them in their existing form ; that the many
amendments of different laws should be condensed so that the acts
on each subject would be entire and could be more readily and con
veniently referred to. The result was that the president of the
council was authorized to appoint a committee to divide among the
members of the council willing to perform the service the labor of
condensing and collecting the statute laws of the territory. At the
next session in January, 1833, they reported this duly performed,
and found no difficulty in approving their own work, which made
considerable change in the laws and in the judicial system. One
advantage of this method of condensing and revising was that the
council was thoroughly informed on all important changes in the
laws. One result of the condensation was that the volume contain
ing all the laws in 1833 had 87 fewer pages than the laws of 1827.
There was, however, no order of arrangement, so that the book was
no improvement in that respect.
After the revision of 1833 there came each year a copious supply
of new legislation and amendments to old laws. The state consti
tution of 1835 was adopted; the legislature elected under the con
stitution met in November of that year and enacted some laws. As
Michigan had not yet been received into the Union, it was ques
tioned whether the state existed, and therefore whether any laws
enacted by this legislature were valid. The Supreme Court of the
state, in the case of Scott v. Detroit Young Men's Society, lessee,
decided in 184-, held that Michigan became a state in 1835 by the
adoption of its constitution, regardless of its non-admission into the
Union, and in consequence the acts of the legislature of 1835 were
621
valid. The Supreme Court of Ohio, in the case of Myers v. Man

hattan Bank (2o Ohio, 283), decided in 1852, involving the identical
question, held directly to the contrary.
However, only one law of general naturefixing the salary of
the governorwas passed at the first session, owing, probably, to
doubts of legality ; but at the adjourned session beginning in Feb
ruary, 1836, a considerable number were passed. Governor Mason,
in his message at the opening of this session, called attention to the
need of properly organizing the judicial department of the new state
and revising its laws. He recommended the lopping off of useless
branches and periodical revisions, so that the laws might be under
stood by others than those whose profession it was to interpret them.
Following this recommendation the legislature promptly passed an
act which the governor approved March 8, 1836, appointing Hon.
William A. Fletcher a commissioner to prepare, digest and arrange
a code of laws for the state. He was to have them ready for the
legislature on the first Monday of January following, and to receive
not more than fifteen hundred dollars ($1,5oo.oo) for his services.
Naturally enough, this time proved insufficient, the commissioner
having judicial duties to perform, first as circuit judge and later as
chief justice of the Supreme Court, and the time was extended to
November 9, 1837. An adjourned session of the legislature met
at that date for the express purpose of acting on the report, and sat
until the last day of the year, when the act was in part acted on,
and completed early in the following year. This act was more than
a revision or condensation; it was an attempt really to codify the
law of the state, and the result was for the first time a unified treat
ment of the entire subject, with an entire recasting of language.
The work was divided into four parts, treating respectively of the
Internal Administration of the State, Private Right, Administration
of Civil Justice, and Administration of Criminal Justice.
The contrast in arrangement, compared with the revisions of 1827
and 1833, was great. In neither of them was there any attempt to
do more than collect existing statutes upon any subject and put them
together, but without any particular order or logical connection ;
still less was there any definite plan of arrangement of subjects.
The code, or, as the title page of the volume names it, "The
Revised Statutes of Michigan," made many changes from the terri
62a
MICHIGAN LAW REVIEW
torial statutes. The judicial system was made to consist of a

Supreme Court with a chief justice and three associate justices, a
court of chancery with a chancellor, four circuit courts, a probate
court and justice courts. Return was made to the system of county
government by three commissioners instead of supervisors.
The codifier for many years was a very prominent figure in the
legal history of the state. Born in New Hampshire, he came to
Detroit in 1821 at the age of thirty-three, and impressed himself
rapidly on the community as a man of force and ability. In 1823
Governor Cass, who early formed and always retained a high opin
ion of his legal ability, appointed him chief justice of the Wayne
County Court, and in 1825 appointed him attorney general of the
territory. In 1833 the county court system was abolished in the
lower peninsula except for Wayne County, and the rest of the penin
sula was formed into one circuit, and the governor appointed Fletcher
the circuit judge. The performance of his duties required him to
hold yearly two terms at each county seat, and as there were thir
teen counties named in the act at which court should be held, it can
readily be seen that traveling alone would consume much time. The
law requiring that the judge after his appointment should reside
within his district, Judge Fletcher removed to Ann Arbor where
he lived during the remainder of his life.
In March, 1836, the state legislature passed a law providing for
a Supreme Court consisting of a chief justice and associate judges
and Governor Mason promptly appointed Fletcher the chief justice
at a salary of sixteen hundred dollars ($1,6oo.oo) yearly, and he
continued to hold that position until he resigned in 1842. He died
at Ann Arbor in 1852, and for many years even the place of his
burial was unknown. In 1916 the matter was called to the attention
of the Michigan Bar Association and the Michigan Pioneer and
Historical Society. His remains were found inclosed in an iron
casket, disinterred, and reinterred in a prominent location in the
Ann Arbor Cemetery, and a suitable monument will be erected.
The compensation for doing this important work was not to
exceed fifteen hundred dollars ($1,5o0.oo), and later critics of the
work intimated that Judge Fletcher did only a small part of the
work, and employed General Edward Clark, a militia general living
at Ann Arbor, a man of good standing and ability, but not of any
623
legal training, to do the main part, and it is certain that in the code
as presented there were important omissions which the succeeding
legislatures were compelled to fill.
In December, 1837, the legislature passed an act authorizing the
governor to appoint two commissioners to superintend the publica
tion of the revised laws, and he appointed E. B. Harrington and E.
J. Roberts. Ebenezer Burke Harrington was a young lawyer who
was at the time of his appointment living in Port Huron, but at
once moved to Detroit to fulfill his part of this monotonous but
important work. He later reported the decisions of the Chancery
Court of Michigan from 1839 to 1844, and died in the latter year.
Elijah J. Roberts, a brilliant and versatile man, was at this time
thirty-seven years old. Previous to coming to Detroit, about 1833,
most of his life had been spent in New York as editor of various
newspapers, which vocation he occasionally followed in Michigan
at times in combination with the practice of the law. In the specu
lative period of 1835-6 he went to St. Clair, where he speculated in
village lots and promoted a railroad from St. Clair to Romeo, begin
ning its construction. He was later a justice of the peace in Detroit
and took an active part in the militia, rising to be colonel, and in the
Canadian Patriot War of 1837 was heartily in sympathy with the
movement and took considerable part in recruiting and assisting the
Patriots. He was adjutant general of the state from 1842 to 1844,
and in 1845 was appointed assistant mineral agent for the upper
peninsula. While there he presented Chippewa County in the Con
stitutional Convention of 185o, was state senator from the upper
peninsula in 185 1, but died April 29 of that year.
Serious omissions and deficiencies soon began to appear in the
revision. Being the work of one man, who was much of the time
actively engaged in other work, it was perhaps unavoidably incom
plete, but it also made some radical changes which were not gener
ally desired or understood. For some years county affairs had been
under the management of an elected board of supervisors. The
code changed this to a board of three commissioners. Imprisonment
for debt was continued, although the governor and public sentiment
were strongly opposed to it. One great merit of the revision was
that for the first time there was an orderly, systematic arrangement
of the subjects treated, which brought into a connected whole all
the statute law.
624
MICHIGAN LAW REVIEW
The state grew rapidly in population ; each session of the legisla

ture produced new laws and amendments to the revision, and in
1841 one thousand copies of the revision were ordered sold at two
dollars, no doubt in contemplation of another revision soon to be
made.
When the legislature met in 1844 an act was passed, March 2,
amended March 12, 1844, providing for the consolidation and revi
sion of the general laws of the state. The first act created a Council
of Revision, consisting of the chancellor, the presiding judge of the
first circuit and a commissioner to be appointed by the judges of the
Supreme Court and the chancellor. Immediately after that act was
passed the legislature was advised that it was impossible for the
chancellor and judge to devote the necessary time and attention to
the work, and therefore it amended the act so that the commissioner
should perform the work. The day following this action Sanford M. Green, then a member of the state senate, was appointed
commissioner. This was an excellent choice. Judge Green had
come to Michigan eight years before and had acted as justice of the
peace and prosecuting attorney in Shiawassee County, was judge
of the Supreme Court from 1848 to 1852, and from the latter year
was circuit judge and as such also a member of the Supreme Court
from 1852 to 1857. He later sat as circuit judge for several years.
The work of revising occupied Judge Green nearly two years. He
reported in January, 1846, that he had devoted all his energies to
the preparation and arrangement of the laws, with such modifica
tions, amendments and additions as seemed best adapted to the peo
ple of the state and calculated to secure their permanent happiness
and prosperity.
In accordance with a resolution of the legislature, the commis
sioner prepared his revision and had it printed for the use of the
legislature, so that they had it before them as an entirety.
To the code as reported the legislature made numerous changes
and additions ; it changed entirely the judicial system, abolishing the
Court of Chancery; abolished capital punishment, which had been
retained by the reviser. In the revision as reported and adopted the
chapter on evidence was entirely rewritten and for the first time per
mitted parties to suits to be witnesses.
There was present, however, in this revision one danger: when
625
the law is put into a single statute it becomes very difficult for a body
of men like the ordinary legislature to examine and compare the
proposed code with the previously existing statutes minutely and
thoroughly enough to have an intelligent understanding of all the
changes made and their bearing upon the parts unchanged. It thus
follows that succeeding legislatures promptly- claim that provisions
of the code as adopted were not understood and should be amended.
Another objection to a single reviser, which had been the case
both in 1838 and 1846, was that, in preparing a code of laws for the
people of the state, there should be more than one mind, one view
point, used in the framing of the laws.
Four years later the Constitutional Convention of 185o met and
prepared a new constitution, which was adopted the same year. In
it perhaps the most noticeable feature is the policy of restriction of
the powers of the legislature ; no more internal improvements, small
fixed salaries for state officials, biennial sessions of the legislature,
and many enactments which properly should be found only in statutes
were inserted.
One provision was : "No general revision of the laws shall here
after be made. When a reprint thereof becomes necessary the legis
lature in joint convention shall appoint a suitable person to collect
together such acts and parts of acts as are in force, and, without
alteration, arrange them under appropriate heads and titles."
The first reference to this subject was on the fifteenth day of the
convention, when Mr. Britain proposed as Section 39 of the article
on Legislative Department, "The legislature may authorize a com
pilation and reprint of the laws actually in force * * * but no revision
or alteration of the laws shall at any time be authorized except * * *"
This brought the strong objection of Mr. Williams, the first pres
ident of the Michigan Agricultural College. "Compilation and
reprint," he said, was the plan out of which the last revision grew.
The reviser had proposed not to codify but compile the laws at a
cost of five or six hundred dollars, but it grew into a revision, with
the pay of the reviser several thousand dollars and the cost of print
ing, including cost of legislation, $6,5oo.oo.
The next day the subject came up again and was considerably
discussed. In the course of his argument Mr. Britain said: "A
revision of the laws should never be necessary except so far as may
6a6
MICHIGAN LAW REVIEW
be necessary to adapt them to amendments of the constitution. No

man could draw up a code suited to all the various wants of the
people." Michigan had suffered three inflictions of this kind since
his acquaintance, and they were among the greatest calamities by
which she had been visited ; the revision of 1838 cost the state about
$9o,ooo.oo. The revised statutes of 1846 went from the hand of
the reviser the reflection of his own peculiar views rather than those
of the people. A general murmur of disapproval ran through the
state, "produced first by ignorance of the new laws, second by their
want of adaptation to the people's wants and interests."
The matter was then passed and received no further discussion,
but later on Mr. Britain's motion, the section as it now stands, was
adopted as Section eleven of the article "Schedule," and referred
to the committee on "Enrollment." On the last day of the session
this committee presented the entire constitution in its final form,
and had transferred this particular section to the article "Miscel
laneous," where it appears as Section fifteen, and so stands as
adopted by the convention and voters.
In the proposed constitution of 1867 this provision was entirely
omitted with no discussion. In the Constitutional Convention of
19o7 the committee having the subject in charge proposed to omit
the section, but after a short discussion, in which reference was made
to former revisions, the section with some slight changes was
retained but placed in another article.
Judge Campbell, always well informed and interested in the early
history of the state, referred at some length to the experience of
Michigan in his opinion in the State Tax Law Cases (54 Mich. 45o).
He said that Judge Fletcher, instead of compiling the laws,
which was all the legislature intended, prepared a new and what
was meant to be a complete code whereby the law on several sub
jects was essentially revolutionized and some important matters
entirely overlooked. Some of these defects were remedied before
the Revised Status went into effect; and before the session of
January, 1839, so many further omissions and defects were discov
ered that much of the time of the legislature was spent in changing
the code and supplying defects. The revision of 1846 introduced
some radical changes and superseded the great body of general laws,
and was intended to be a complete code. Subsequent legislatures
627
m also made numerous changes in this, but there were not so many
omissions. In the convention of 185o the basis of objections to
revisions and codifications was the mischief of allowing laws to be
changed except by the sole action of the legislature, which could not
be applied with full intelligence to extended schemes which reflected
the minds of others, and could not be thoroughly compared and
digested by the body of legislators so as to enable them to realize
their full effect on the whole legal system of the state. The result
was the provision as adopted.
It is singular that the experience of no other state has produced
a similar result. Where other states have occasional revisions of
the laws which tend to consolidate and omit contradiction and super
fluous statutes, Michigan is restricted to piecemeal treatment, such
as has been done in the Judicature Act and the Corporation revision
now under consideration.
W. L. Jenks.
Port Huron, Michigan .
M1ch1gan
Law
Rev1ew
PUBLISHED MONTHLY DURING THE ACADEMIC YEAR, EXCLUSIVE 01 OCTOBER, 1Y TBI

60 CENTS PER NUMBER
ASSOCIATE EDITORS
Henry M. Bates
Edson R. Sunderland
E. C. Goddard
Joseph H. Drake
John B. Wa1te
W11l1am C. O'Keepe, of Michigan
A. George Bouchasd, of Wisconsin
Jean Paul Thomas, of Michigan
NOTE AND COMMENT
BoycottClayton Act.In Duplex Printing Press Company v. Veering
ct al. (January 3, 1921 )'. 41 S. Ct. 172, the facts were:
The plaintiff, a Michigan corporation, manufactures at Battle Creek, and
sells throughout the United States, especially in and around New York City,
and abroad, very large, heavy and complicated newspaper printing presses.
Purchasers furnish workmen, but ordinary mechanics alone are not compe
tent to do this, and so they are supervised' by specially skilled machinists
furnished by plaintiffs. The plaintiffs have always operated on the "open
shop" plan, without discrimination against union or non-union labor, either
at its factory or at the place of installation of presses, but have not observed
the eight-hour day nor the union scale of wages.
Defendants are members of the International Association of Machinists,
and are sued individually and in various representative capacities. This asso
ciation is unincorporated, with a membership of over sixty thousand in vari
ous districts and local unions throughout the United States. D and B are
sued individually and as representatives of unincorporated District No. 15,
composed of six local lodges of the association in New York City. N is
NOTE AND COMMENT
629
sued individually and as agent of unincorporated local lodge 328, of this

district. Another N is sued individually and as agent of the unincorporated
Riggers' Protective Union of workingmen engaged in handling1, hauling and
erecting machinery, with jurisdiction over all union men in that business in
New York City.
It was also alleged that both the union machinists and union riggers
were so affiliated with the Building Trades Council of New York City,
including thirty different trades and over seventy-five thousand members,
no one of which was allowed to work in or on a building where a non-union
man was employed; that it was practically impossible to erect any building
in New York where any non-union man was employed; that the whole
machinery of the council would be put in operation to prevent plaintiff from
exhibiting its presses at a pending exposition; that the Association of
Machinists and its branches were combining and conspiring to monopolize
the machinist's trade throughout the United States, and prevent the employ
ment of any machinist who was not a member by any employer unless he
would operate a closed shop and employ only machinists who were mem
bers of the union.
No one of the defendants is, or ever was, an employee of the plaintiff,
nor a member or representative of any lodge or union not local to New
York City.
The suit was to enjoin an alleged conspiracy by the defendants to restrain
plaintiff's interstate commerce in printing presses, contrary to the common
law and to the Sherman Anti-trust Act. It was begun before, but not heard
until two years after, the Clayton Act was passed, the provisions of which
were invoked by both parties.
Between 19o9 and 1913 all of plaintiff's competitors had recognized and
dealt with the Machinists' Union and conformed to its requests, but the
plaintiff steadfastly refused. In 1913 two of these competitors notified the
Union they should be obliged to terminate their agreements with it unless
the plaintiff would accede to the union requirements. Because plaintiff
refused to do this, eight months before suit was brought, the International
Association of Machinists, with a view to compelling plaintiff to unionize its
factory, enforce the "closed shop," adopt the eight-hour day and the union
scale of wages, called a strike at plaintiff's factory. Only fourteen union
machinists, including three who supervised the erection of presses by plain
tiff's customers, left. This did not materially interfere with plaintiff's busi
ness and is not complained of in the suit.
The acts complained of relate solely to the interference with the instal
lation and operation of presses by plaintiff's customers, by an elaborate,
country-wide programme, adopted and carried out by the defendants and
their organizations, to boycott plaintiff's products; by warning customers
not to purchase, or, if purchased, not to install presses; by threatening them,
if they did, with loss by strikes of their employees and sympathetic strikes
in other trades; by notifying a trucking company not to haul presses, and
threatening to incite their employees to strike if they did; by notifying
63o
MICHIGAN LAW REVIEW
repair shops not to repair presses made by plaintiffs; by threatening union

men with loss of union cards and being blacklisted as "scabs" if they helped
install presses; by threatening an exposition company with a strike if it per
mitted plaintiff's presses to be exhibited; and, generally, by injuring and
threatening to injure in various ways plaintiff's customers and prospective
customers, and persons handling, hauling or installing the presses.
A typical illustration of the acts complained of is : The Italian Herald
purchased a press ; defendant D got to the Herald office before the press
did ; he told the Herald it had no right to purchase the press, and "we will
make trouble as soon as it arrives" ; this was made as promised ; the trucking
company was told to handle no more after that was delivered and it stopped ;
the owner of the building, then under construction, was told the union work
men on the building would be called off on a strike, and the completion of
the building would be delayed, if the installation of the press by the Herald
was not stopped. This was done until Saturday afternoon, night, and Sun
day, when installation was completed while the union workmen were not at
work on the building. Another illustration : Plaintiff sold a press to N in
New York City. Y, a member of the Machinists' Union, was to supervise
its installation ; defendant D asked Y if he sided with the union or with the
plaintiff; he replied he sided with the plaintiff, whereupon D said he would
take his union card away from him and blacklist him as a "scab" all over
the East. D then followed' Y down to the office of the trucking company,
where he told the truckman not to haul the machinery ; it would make trouble
for him if he did ; the truckman accordingly refused. No actual violence
was used or threatened, although some occurred which was not definitely
connected with the defendants.
Manton, J., in the district court, after reviewing the testimony, says :
"A careful reading of the entire record leads to the conclusion that if men
have a right to strike and to endeavor to prevail upon others to fail to
work for their employer, this is such a case as exemplifies careful, prudent,
and lawful conduct on the part of employees. There is nothing in this record
which warrants my granting the injunction."
On the other hand, Rogers, J., in the Circuit Court of Appeals, said the
union men had been coerced by threats of taking away their cards and black
listing them as "scabs" ; customers have been intimidated by threats to call
out men engaged in other trades or on uncompleted buildings; presses were
not to be repaired, and threats to put them out of order were made; in one
case defendants tried to obtain the cancellation of one of plaintiff's contracts.
These are fair illustrations of the different views personsjudges as
well as otherstake of the same facts in labor controversies. Some think
the acts commendable; others think them criminal. See especially the variety
of the views taken by the judges in the case of Allen v. Flood.1
Judge Manton of the district court held that under the common law of
1Allen v. Flood, [1898] A. C. 1; 1 M1ch. Law Rev. p. 28. Also, D1cey: Comb1na
t1on Laws as Illustrat1ng the Relat1on between Law and Op1n1on 1n England during the N1neteenth Century, 17 Harv. Law Rev. 511, 53a.
NOTE AND COMMENT

New York, where the suit was brought, the secondary boycott was lawful
if not accompanied by malice, violence, or fraud,1 and that there was no
irreparable injury to any property right permitting an injunction under the
Clayton Act *
Hough, C. J., and Hand, D. J., in the Circuit Court of Appeals, held the
acts were lawful under the Clayton Act; but Rogers, C. J., dissented. Hough
and Rogers, C. JJ., held that by the common law of New York a secondary
boycott was valid under the decisions referred to ; but Rogers, C. J., claimed
these only applied to a general boycott of all non-union mills and non-unionmade materials, and not to a general boycott of a particular manufacturer
for maintaining a closed shop, when others doing the same in the same
industry were not so molested. Such was a malicious destruction of the
good will of business of such manufacturers, and was not lawful in New
York; and by the weight of authority elsewhere the boycott is unlawful*
Hough and Rogers, C. JJ., both were certain that the defendants "have agreed
to do and attempted performance of the very thing pronounced unlawful
under the Sherman Act by the Supreme Court before the Clayton Act."8
Manton, J., quoting from a former opinion of Hough, C. J.,* says : "I
do not see any distinction which should make a legal difference between a
lockout, a strike, and a boycott; all are voluntary abstentions from acts
which normal persons usually perform for mutual benefits : in all, the reason
for abstention is a determination to conquer by proving the endurance of
the attack will outlast the resistance of the defense. For alt the New York
law provides the same test: (1) Is the object legal? (2) Are the means used
lawful?"
Rogers, C. J., however, says :' "A strike and a boycott are two quite dis
tinct matters. A strike is an effort on the part of employees to obtain higher
wages, or shorter hours, or a closed shop by stopping work at a preconcerted
time. It is an attack made by employees upon their employer, by labor upon
capital. But a boycott made by union labor against a product manufactured
by non-union labor is an attack upon both labor and capital. It is the union
employees on one side and) non-union employees and the open shop employer
on the other. The principles applicable to a boycott are not applicable to a
strike. The strike in Battle Creek may be lawful, while the boycott of the
product in New York may be unlawful. The use of the boycott is very
generally held to be the use of unlawful means, and it is not material, where
1 Bossert v. Dhuy (19:7), 221 N. Y. 342; Gill & Co. v. Doerr (D. C.), 214 Fed. m.
9Oct. 15, 1914, C. 323, i 20, 38 St. L. 738; Comp. St. 1916, $ 1243d.
4 Citing State v. Stockford (1904), 77 Conn. 227; Purvis v. United Brotherhood of
Carpenters (1906), 2'4 Pa. 348; State v. Stewart (1887), 59 Vt. 273; Wilson v. Henry
(1908), 232 1ll. 389; Beck v. Railway & Union (1898), 118 Mich. 497; Quinn v. Leathern,
[1901] A. C. 495.
5 Loewe v. Lawlor (1908), 208 U. S. 274, 28 S. Ct. 3C1; Lawlor v. Loewe (1914),
235 U. S. 522, 35 S. Ct. 170.
6 Gill Engraving Co. v. Doerr (C. C. 1914), 214 Fed. 1ll.
' 252 Fed. 733-
6j2
MICHIGAN LAW REVIEW
it is resorted to, whether the end soughtin this case the unionizing of the
shops in Michiganis lawful or not."
These statements are also typical of the difference among judges as to
the legal aspects of labor controversies.
Both the District Court* and the Circuit Court of Appeals* held the Clay
ton Act forbade an injunction, although, but for that act, one should have
been granted. The Supreme Court reversed this, Mr. Justice Pitney deliv
ering the opinion for the majority, Mr. Justice Brandeis delivering a dis
senting opinion concurred in by Holmes and Clarke, JJ.
All agreed that the lower courts were right in giving effect to the Clay
ton Act, but they disagreed as to whether the proper effect was given.
Justice Pitney held that Section 16 of the Clayton Act gave a private
relief by injunction for threatened loss by a violation of the anti-trust laws,
which a private party did not have before;" that, by Section I of that act, the
Sherman Act was defined as an anti-trust law; that plaintiff's right to manufac
ture and sell presses in commerce is a property right ; that unrestrained access
to the channels of interstate commerce is necessary to its success; that the
tacts showed a widespread combination by defendants to obstruct this, result
ing in substantial damage and threatening irreparable loss; that by the
Sherman Act every conspiracy in restraint of trade or commerce among the
states is illegal ; that a conspiracy is a combination to accomplish an unlaw
ful purpose, or a lawful purpose by unlawful means;11 that the substance of
the matters complained of constitute a secondary boycotti. e., a combination
not merely to refrain, or peacefully to advise or persuade plaintiff's customers
to refrain, from dealing with it ("primary boycott"), but to exercise coercive
pressure upon such customers, actual or prospective, in order to cause them .
to withhold or withdraw patronage from plaintiff through fear of loss to
themselves if they deal with it; that the distinction between primary and
secondary boycott is material in the proper construction of the Clayton Act,
but it is only of minor importance whether either is unlawful at common
law in determining the right to an injunction under the Sherman Act; that
by the decisions under this act peaceable persuasion is as much prohibited
as force or threats of force, and is not justified even if the participants have
some object beneficial to themselves or their associates.19
The majority of the Circuit Court of Appeals held that under Section
2o, in conjunction with Section 6 of the Clayton Act, no injunction could be
granted. Section 6 provides : "The labor of a human being is not a com Duplex Printing Co. v. Deering (D. C., 1917), 247 Fed. 192.
Duplex Printing Co. v. Deering (C. C. A., 1918), 252 Fed. 722.
10 Paine Lumber Co. v. Neal (1917), 244 U. S. 459, 471.
" Pettibone v. United States (1892), 148 U. S. 197, 203. This is the usual definition
ever since The Tubwomen's Case, in 1664, cited in King v. Journeyman Tailors (1721),
8 Mod. 11,320, and King v. Starling, 1 Keb. 650, 655, 675, 1 Sid. 174, pI. 6, 83 Eng. R.
1164, 1167, 3 Col. L. Rev. 447 (1903).
" Loewe v. Lawlor (1908), 208 U. S. 274; Eastern States Lumber Asso. v. United
States (1914), 234 U. S. 600; Lawlor v. Loewe (1915), 235 U. S. 522, 534.
NOTE AND COMMENT
633
modity or article of commerce. Nothing contained in the anti-trust laws

shall be construed to forbid the existence and operation of labor organizations,
instituted for the purposes of mutual help * * * or to forbid or restrain indi
vidual members of such organizations from lawfully carrying out the legiti
mate objects thereof; nor shall such organizations, or the members thereof,
be held or construed to be illegal combinations or conspiracies in restraint
of trade under the anti-trust laws."
This only declares that nothing in the anti-trust acts shall be construed
to forbid labor organizations or their members from lawfully carrying out
their legitimate objects, and docs not authorize any unlawful activity or illegal
conspiracy in restraint of trade.
Section 2o provides: "No injunction shall be granted * * * in any case
between an employer and employees * * * involving or growing out of a
dispute concerning terms or conditions of employment, unless necessary to
prevent irreparable injury to property or to a property right. * * * And no
such injunction shall prohibit any person or persons, singly or in concert,
from terminating any relation of employment or from ceasing to perform
any work or labor or persuading others by peaceful means so to do; from
peacefully persuading any person to work or abstain from working; or from
ceasing to patronize or to employ any party to such dispute, or from per
suading others by peaceful and lawful means so to do; * * * or from doing
any act or thing which might lawfully be done in the absence of such dispute
by any party thereto."
All of the judges, in all the courts, agreed that the acts of the defendants
amounted to a secondary boycott, of a coercive but not violent character.
The controversy was as to the meaning of the "blindly drawn" provisions
of the Clayton Act, and especially of the words "employers," and "employees,"
and "others," in Section 2o. The Circuit Court of Appeals held that "employ
ers" and "employees," as used in Section 2o, referred to the business class,
to which the litigants belonged ; and that the union and each of its sixty
thousand members, although no one of them had ever been employed by the
plaintiffs, having first created a labor disturbance by calling a strike at plain
tiff's factory, thereafter had such an interest in the matter as to justify the
union in calling strikes of the employees of other employers, between whom
there was no dispute, and which employers had no business relations with
plaintiff except by purchasing presses in the ordinary course of interstate
commerce.
Mr. Justice Pitney says : "We deem this construction altogether inad
missible." The act imposes an extraordinary restriction on the equity powers
of courts in the nature of a special privilege to a particular class; it would
violate all the ordinary rules of construction to extend the privilege by
loose construction beyond those who are proximately and substantially, not
merely sympathetically, interested in "a dispute concerning terms or condi
tions of employment"; Congress had in mind particular disputes, not a class
war ; labor organizations are not mentioned in Section 2o, and to extend a
dispute directly affecting a few actual employees to all the members of the
634
MICHIGAN LAW REVIEW
union would so enlarge the meaning as to be inconsistent with Section 6,

which limits activity to lawfully carrying out the legitimate objects thereof;
"ceasing to patronize" is limited to pressure on a "party to such dispute," by
"peaceful and lawful" influence on neutrals, not by threats of strikes of their
employees, to compel withdrawal of patronage of plaintiff to induce him to
yield.
Justice Pitney in support of this view quoted from the explanatory state
ments made by the spokesman of the House of Representatives Judiciary
Committee, who had charge of the bill when it was under consideration, such
being a proper aid in ascertaining the legislative intent," as to the meaning
of Section 2o. This was unequivocally to the effect that the section "was
carefully prepared with the settled purpose of excluding the secondary boy
cott ; it was the opinion of the committees that it did not legalize it ; it was
not their purpose to authorize it, and not a member of the committee would
vote to do so." By the construction given by the court below, an ordinary
labor controversy in a manufacturing establishment justifies a nation-wide
blockade of interstate commerce in its products by sympathetic strikes and
boycotts against its customers, to the incalculable damage of innocent people
remote from, unconnected with, and having no control over the actual dis
pute, constituting the general public, and having a vital interest in unob
structed commerce, which the anti-trust acts were to protect.
Plaintiff has a clear right to an injunction under the Sherman Act as
amended by the Clayton Act, and it is unnecessary to consider what the
result would be under the common law or local statutes.
Mr. Justice Brandeis, dissenting, says as to the common law : Defendants'
justification is self-interest; they support the strike at the factory by a strike
elsewhere against its product, not maliciously but in self-defense; plaintiff's
refusal to deal with the union and observe its standards threatened not only
the interests of its members at the factory but even more of all the affil
iated unions employed by plaintiff's competitors, whose more advanced stand
ards plaintiff was, in reality, attacking; the contest between the plaintiff and
the union involves vitally the interest of every person whose cooperation is
sought. May not all with a common interest join in refusing to labor on
articles whose very production constitutes an attack upon this standard of
living and the institution which supports it? Yes, by common law principles,
if in fact they have a common interest. At first strikes were held illegal."
Later, the obvious self-interest of the laborer in the improvement of his
wages, hours and conditions of work constituted a justification.18 Then some
courts held the mutual interest of members of a union, in the union, was not
sufficient self-interest to justify a strike to force the unionization of the
" Binns v. U. S. (1904). '94 17. S. 486, 405: Pennsylvania R. R. Co. v. International
Coal Co. (1913), 230 U. S. 184, 198; Uni*cd States v. Coco Cola Co. (1916). 241 U. S.
265, 281; U. S. v. St. Paul Ry. Co. (1918), 247 U. S. 3'0, 318.
"Commons, H1st, of Labor, Vol. 2, Ch. 5.
" Pickett v. Walsh (1906), 192 Mass. 572.
NOTE AND COMMENT
635
shop." Other courts, viewing the same facts differently, held otherwise."
Later, when centralization of business brought corresponding centralization
in labor organizations, a single employer might, as here, threaten the stand
ards of the whole organization, and then naturally the union would protect
itself by refusing to work on his materials wherever found ; here again some
courts held the intervention of the purchaser broke the direct relation between
employer and employee, and a strike against the materials was a strike
against the purchaser by unaffected third parties." Other courts, better appre
ciating the facts of industry, recognized the unity of interest throughout the
union, and in refusing to work on such materials the union was only refusing
to aid in destroying itself." On the question of fact, I would say, as the
lower courts said, the defendants and those from whom they sought coopera
tion had a common interest, and under the common law of New York the
plaintiff had no cause of action.20
The Clayton Act was the result of twenty years' agitation to equalize
before the law the position of the employer and employee, as industrial com
batants. The chief sources of dissatisfaction were the use of the injunction
and the doctrine of "malicious combination" ; this made an act otherwise
damnum absque injuria, as a result of trade competition, actionable as mali
cious, if done for a purpose the judge considered socially or economically
harmful. Great confusion existed among the judges as to what purposes
were lawful and what unlawful. By 1914, it was thought Congress, and not
the judges, should declare how the inequality and uncertainty of the law
should be removed and what damages could be inflicted on an employer in
an economic struggle without liability, instead of leaving the judges to deter
mine this according to their own economic and social views. This was the
idea presented by the committees reporting the Clayton Act. Certain acts
committed in the course of an industrial dispute, and which before were
declared unlawful whenever the courts disapproved the ends for which they
were performed, were declared not to violate any law of the United States;
that is, the opinion of Congress as to the propriety of the purpose was sub
stituted for that of differing judges: that relations between employers and
workingmen were competitive ; that organized competition was not harmful,
and that it justified injuries necessarily inflicted in its course. The minority
and majority reports of the house committee indicated such to be the puru Plant v. Woods (1900), 176 Mass. 492: Lucke v. Clothing Cutters (1893), 77 Md.
396; Erdman v. Mitchell (1903), 207 Pa. St. 79.
"National Protective Assn. v. Cumming (1902), 170 N. Y. 315; Kemp v. Division
No. 241 (1912), 255 1ll. 213; Roddy v. United Mine Workers (1914), 41 Okla. fiai.
M Burnham v. Dowd (1914), 217 Mass. 351; Purvis v. United Brotherhood (1906),
214 Pa. St. 348; Booth v. Burgess (1906), 72 N. J. Eq. 181.
"Bossert v. Dhuy (1917), 221 N. Y. 342; Cohn & Roth Elect. Co. v. Bricklayers
(1917), 92 Conn. 161; State v. Van Pelt ('904), 136 N. C. 633; Grant Construction Co.
v. St. Paul Building Trades (1917), 136 Minn. 167; Pierce v. Stablemen's Union (1909),
156 Cal. 70, 76.
30 Bossert v. Dhuy (1917), 221 N. Y. 342; Auburn Draying Co. v. Wardwell C1919),
227 N. Y. 1. Compare Paine Lumber Co. v. Neal (1917). 244 U. S. 459, 471.
636
MICHIGAN LAW REVIEW
pose. If the act applies to this case, then the acts cannot violate "any law
of the United States, and so not the Sherman Act." Congress did not restrict
the provisions to employers and workmen in their employ. By including
"employers and employees," and "persons employed and seeking employment,"
it showed that it was not merely aiming at a legal relationship between a
specific employer and his employees. The contention that this case is not
one arising out of a dispute concerning the conditions of work of one of the
parties is founded on a misconception of the facts.
Judge Brandeis adds that, because he concluded that both the common
law of a state and a statute of the United States declare the right of indus
trial combatants to push their struggle to the limits of the justification of
self-interest, "I do not wish to be understood as attachjng any constitutional
or moral sanction to the right. * * * Above all rights rises duty to the com
munity. The conditions of industry may be such that those engaged in it
cannot continue their struggle without danger to the community. It is not
for the judges to determine whether such conditions exist, nor their function
to set the limits of permissible contest. This is the function of the legislature."
One can hardly refrain from the remark, from the variety of views of
the judges who pronounced opinions in this case, that it is about as easy for
courts to determine what justice demands under certain conditions as to
determine the meaning of an act of Congress. It would seem that Justice
Pitney's quotations from the statements made in the house at the time of
the report of the Judiciary Committee are the best evidence of what that
committee meant to do and thought it had done, and that was to exclude
the secondary boycott from the things declared to be lawful. Soon after the
Clayton Act was passed similar acts were passed in several states." The
interpretation of many of these has often accorded with the majority opinion
in this case."
There is no doubt that there has been the trend and confusion in judicial
decisions indicated by Justice Brandeis, and many more cases could be cited.
So, too, there is no doubt that the common law of New York is as pointed
out by him ; and scarcely any doubt that the weight of authority elsewhere
Is otherwise, as indicated by Judge Rogers. Scarcely any English cases were
cited. From the time when John Mewic would not let Matilda's tenants till
her land in 12oo" and the bailiffs of Shrewsbury proclaimed no one in the
town should sell merchandise to the Abbott of Lilleshull in 1225," to Quinn
v. Leathcm and Pratt v. Mcdicat Association boycotting has been unlawful
in the English law, although it did not get its name until about 188o, when
Captain Boycott, representing Lord Earne, in Connemara, Ireland, gave notice
to the lord's tenants to vacate, whereupon the people for miles around
n See 20 Col. L. Rev. (June, 1920), p. 696.
"Ibid., p. 697.
*> Select C1v1l Pleas, Vol. I, p. 3, p1 7, 3 Selden Society.
" Select Pleas of the Crgwn, Vol. 1, p. 115, p. 178, 1 Selden Society.
" I1901] A. C. 495"[1919] 1 K. B. 244, 18 M1ch L. Rev. 148 (Dec, 1919).
NOTE AND COMMENT
637
resolved to have nothing to do with him, nor allow anyone else to; so his
laborers fled, he got no food, and no one would speak to him, until the Ulsterites came to his rescue, and civil war followed, which the government had
to put down by the soldiers." There is also no doubt that, under the Sher
man Act and the decisions of the Supreme Court before the Clayton Act, the
defendants' acts were illegal.
H. L. W.
D1squal1f1cat1on of Judges by Prejud1ce.Under the provisions of
Section 21 of the Federal Judicial Code, Victor Berger and others, who had
been indicted under the Espionage Act in the Northern District of Illinois,
filed an affidavit charging Judge Landis with personal bias and prejudice
against them as German-Americans, and moved for the assignment of another
judge to preside at their trial. The motion was overruled by Judge Landis,
and he himself presided at the trial, and the defendants were convicted and
sentenced. The Supreme Court of the United States, to which the matter
came on certificate, held, three justices dissenting, that Judge Landis could
not, under the statute, pass upon the truth of the facts alleged in the affidavit
showing prejudice, but thatt upon the filing of an affidavit sufficient on its
face, he was incapacitated from further proceeding with the case. Berger v.
United States, No. 46b, decided January 31, 1921.
This decision seems in harmony with the evident purpose of the statute,
and is reassuring to all who feel that the courts cannot too strictly guard
themselves from any suspicion of hostility or favoritism toward litigants.
The common law was probably too indifferent on this matter. Blackstone
says that "in the times of Bracton and Fleta, a judge might be refused for
good cause; but now the law is otherwise, and it is held that judges and
justices cannot be challanged." 3 Commentar1es, 362. But the obviously
just rule that a man cannot be judge in his own case, now universally recog
nized, would seem to extend itself in principle over every suit where a judge,
by reason of prejudice and the consequent partisan interest which he devel
ops, has made himself morally a party to the action. The section of the
Federal Judicial Code on which the objection to Judge Landis was based
undertook to put this principle into operation. Upon the filing of the affidavit
Judge Landis undoubtedly became a party to a controversy over his own fit
ness, and he insisted on deciding the merits of the case in which he was a
contestant. The Supreme Court thought him qualified to decide the legal
sufficiency of the showing made, but not to pass upon the truth of the accu
sation.
Under a somewhat similar statute in Montana it has been held that the
filing of a proper disqualification affidavit ipso facto deprives the judge of
further authority to act. State ex rel. v. Clancy, 3o Mont. 529; State ex rel.
v. Donlan, 32 Mont. 256. Under the California statute a similar result fol
lows in justice court cases, People v. Flagley, 22 Cal. 34, and in superior
court cases where no counter affidavits are filed, People v. Compton, 123 Cal.
Law as to Boycott, Wymah (1903), 15 Green Bag, 208-215.
6j8
MICHIGAN LAW REVIEW
4o3. The "salutary rule" of relieving the judge from the "very delicate and
trying duty of deciding upon the question of his own disqualification" received
,the warm approval of the California court in the case last cited.
The Berger case effectually disaffirms the doctrine of Ex parte N. K.
Fairbanks Co., 194 Fed. 978, where Judge Jones, in the Middle District of
Alabama, held, in a long and elaborate opinion, that Congress could not,
under the Constitution, "lawfully enact that a judge, who is in truth qualified,
is in law disqualified because a suitor makes an affidavit to that effect, and
make that ex parte statement conclusive proof of the disqualification and cut
off all judicial inquiry as to the judge's competency." He contended that
the disqualification of a judge to try a particular case must rest upon facts
which unfit him, and the existence of such facts must be determined as a
judicial question by some judicial tribunal; that if the filing of the requisite
affidavit operated to prevent the judge from further acting in the litigation
we should have a situation where "the affidavit maker in fact, though not in
name, puts on the judicial robes and excludes the presiding judge and all
other judicial authority from any voice in determining the matter, and by
the mere filing of an affidavit renders judgment of disqualification and exe
cutes it," citing Mabry v. Baxter, 11 Hcisk. (Tenn.) 689, 691, and Sanders v.
Cabanniss, 43 Ala. 173, in condemnation of such a procedure as an illegal
assumption by the legislature of judicial power.
Although two dissenting opinions were filed in the Berger case, written
by Justices Day and McReynolds, neither of them suggests that the con
struction of the statute given by the majority of the court involves any uncon
stitutional interference with the judicial power vested in the courts.
E. R. S.
Acc1dent 1n Workmen's Compensat1on.The interpretation of work
men's compensation statutes has caused the courts a great deal of difficulty.
The usual statute provides for compensation for an "accident arising out of
and in the course of the employment." Such a type of statute has made it
necessary for the courts to inquire into what constitutes an accident, what
is an accident arising out of the employment, and what is an accident arising
in the course of the employment. Each one of these inquiries has been the
source of much litigation, and it has now become fairly well settled as to
what accident "arises out of and in the course of the employment." See 12
M1ch. L. Rev. 614, 688; 14 M1ch. L. Rev. 525; 15 M1ch. L. Rev. 92, 6o6: 16
M1ch. L. Rev. 179, 462; 18 M1ch. L. Rev. 72, 162. The question as to what
constitutes an accident is still the subject of many varied decisions. The
problem was involved in the recent case of Prouse v. Industrial Commission
(Colo., 1o2o), 194 Pac. 625, where the court (two judges dissenting) held
that a coal miner was not injured by accident where a germ disease had
proved fatal because he had become weakened by foul air and dioxide gas
which came from an inclosed entry that the miners had broken into.
One of the principal reasons for the variety of decisions in regard to
the word "accident" is that the word is used in many different senses, and
NOTE AND COMMENT
639
there are times when a liberal interpretation is called for and others where
a strict construction is demanded. The courts, in interpreting accident insur
ance policies, generally hold that if the death is caused by a previously diseased
condition of the body, without which the death would not have followed
the injury, it is not an accidental death. National Masonic Assn. v. Shyrock,
73 Fed. 774. In workmen's compensation cases, however, it is generally held
that anything contributing directly or indirectly to incapacity following an
injury is sufficient within the compensation laws. Indian Creek Min1ng Co.
v. Calvert, 119 N. E. (Ind. App.) 519; Robbins v. Gas Engine Co., 191 Mich.
122.
A disease contracted by gradual process, commonly known as an indus
trial or occupational disease, is not an accident within the compensation
laws. Liondale Bleach, Dye and Paint Works v. Riker. 85 N. J. L. 426;
Adams v. Acme White Lead and Color Works, 182 Mich. 157; Paton v. Dixon,
[1913] 6 B. W. C. C. 882; Evans v. Wood, [1912] 5 B. W. C. C. 3o5. The
usual reasoning of the courts is that an accident must have definite time,
place, and circumstances. Other courts take the view that the important
characteristics of an accident are that the injury be unexpected and uninten
tional. Fidelity and Casualty Co. v. Commission, 177 Cal. 614; Indian Creek
Mining Co. v. Calvert, supra. These two lines of reasoning show that the
courts which adhere to the first view adopt the layman's interpretation of
an accident, while the others have used the word in a special legal sense.
Under either line of reasoning, a man slowly acquiring lead poisoning while
working in a mine is not injured by accident; but should there be a caving-in
of a wall which held back poisonous fumes, and the workman should, as a
consequence, acquire lead poisoning suddenly, there would be an injury by
accident.
The situation of the English law is, at present, in this position. Where
a workman gradually contracted eczema while employed at dipping rings in
a chemical, it was held not to be an accident. Evans v Wood, supra. But
recovery was allowed in Alloa Coal Co. v. Drylie, [1913] Sess. Cases 549,
where a water pump burst and the workman died from pneumonia (a germ
disease) contracted from standing in the cold water. In the case last cited,
Lord Dundas delivering the majority opinion, said that the disease was
attributable to some particular event or occurrence of an unusual and unex
pected character incidental to the employment, and could fairly be termed
an accident. Lord Salverson, rendering a dissent in the same case, said that
if the deceased's legs had become inflamed from standing in the cold water,
or if the water had been corrosive in its character, there would have been
an injury by accident. This English case and the recent Colorado case are
similar in that the workman in each case died from a germ disease resulting
from his weakened condition. The cases are, however, by no means analo
gous and the facts are sufficiently different to warrant opposite results.
Poor air in a mine is to be expected, but the bursting of a water pipe is
unexpected ; and if the English court were to decide the Colorado case and
were, to apply the reasoning used in the Alloa Coal Co. case, it would in all
640
MICHIGAN LAW REVIEW
probability reach the same conclusion that the majority reached in the Colo
rado case.
The situation in the Wisconsin court is much the same as that in Eng
land. In Vennen v. New Dells Lumber Co., 161 Wis. 37o, it was held that
a laborer contracting typhoid fever by drinking impure water was injured
by accident because the affliction was attributed to the undesigned and unex
pected presence of bacteria in the drinking water. The principal difference
between the majority and the dissenting opinions seems to be that the latter
emphasized the fact that no external violence occurred. The Wisconsin
Industrial Commission has held that a gradually acquired occupational dis
ease is not an accidental injury within the meaning of the act. Derkindern
v. Rundle Mfg. Co., Rep. Wis. Indus. Comm. (1914-15) 16.
The California court expressed the reason for the many conflicting views
on the subject when it said that in workmen's compensation cases it gave
the phrase "sustained by accident" a broad construction in harmony with
the spirit of liberality in which the statute was conceived. Fidelity Co. v.
Commission, 177 Cal. 614. This spirit of liberality is described in Ross v.
Erickson, 89 Wash. 634, where the court said that injustice to the laborer
and hardships to the industries of the state alike called for some plan that
would relieve the servant of the necessity of pursuing his remedy in the
courts and subjecting himself to all the harassments, vexations, and uncer
tainties attending a trial. The laws are designed to protect the workman,
but the courts will not allow them to be used to mulct the employer and
the public. It is for this reason that vocational diseases are not included
within the statutes, because the cause of the injury is not traceable with
reasonable certainty by any reliable method of proof. To allow such specu
lative claims would be to encourage fraudulent practices and would con
tribute to defeating the broad purposes underlying the compensation laws.
The question whether the cause of the injury is traceable by any reliable
method of proof should, therefore, determine whether recovery should be
allowed' under the "sustained by accident" clause. It is by this test that it
must be decided whether an unexpected and unintentional injury constitutes
an accident or whether actual physical violence is necessary. See 14 Col.
L. Rev. 563, 648.
C. G. B.
L1censesOrd1nance Author1z1ng Comm1ss1oner to Revoke Soft
Dr1nk L1cense Inval1d.The city of Tacoma passed an ordinance creating
a license department in the department of public safety, which provided
for licensing and regulating soft drink and candy stores. The ordinance
arranged for the means of securing such a license and then enacted : "The
license of any business mentioned in this section may be revoked by the
commissioner of public safety in his discretion for disorderly or immoral
conduct or gambling on the premises, or whenever the preservation of public
morality, health, peace or good order shall in his judgment render such revo
cation necessary. Such revocation shall be subject to appeal to the city
council, to be prosecuted by filing a written notice with the council within
NOTE AND COMMENT
641
ten days after the revocation. Upon receipt of such appeal the council
shall appoint a day for hearing the appeal, giving the appellant at least three
days' prior notice in writing thereof. The decision of the council shall be
final." M, being the possessor of a duly issued license under this ordinance
to carry on the business of selling soft drinks and candy, had established
such a business. The commissioner of public safety, being of the opinion
that the business as conducted by M had become a menace to "the preser
vation of public morality, health, peace, and good order," assumed to revoke
the license. M challenged the validity of the act. Held, the ordinance is
unconstitutional. State ex rel. Makris v. Superior Court of Pierce County,
(Wash., 192o), 193 Pac. 845.
The court held that the effect of this ordinance was to place in the
hands of the commissioner of public safety, and in turn in the hands of the
city council upon appeal from the commissioner, the arbitrary power, uncon
trolled by any prescribed rule of action, to decide who may and who may
not engage in and carry on the lawful business of selling Soft drinks in
the city.
It is submitted that from what appears in the report of the case the
decision is wrong. In the lower court a trial was had on the merits, which
resulted in the court denying relief to the plaintiff. It must, therefore,
have been found that the commissioner did not act arbitrarily, and that
he did not discriminate against the plaintiff. The evidence must have satis
fied the court that the plaintiff conducted his business in such a way as to
be a menace to "the preservation of public morality, health, peace, and
good order." It is to be noticed that there is no allegation or evidence
that the commissioner acted arbitrarily or with the intention of unjustly
discriminating against the plaintiff.
It is also interesting to notice that the court cites the leading case of
Yick Wo v. Hopkins, 118 U. S. 356, in support of its decision. This case
is frequently cited by courts and text writers as an authority for the prop
osition that an ordinance which vests a purely personal and arbitrary power
m the hands of a public official is a denial of due process of law. That
case involved an ordinance which required all persons desiring to establish
laundries in frame houses to obtain the consent of certain officials. Yick
Wo, a native of China, who had conducted a laundry in a wooden building
for twenty-two years, and who had complied with all existing regulations
for the prevention of fire and the protection of health, was refused such
consent, upon his application ; and he was convicted and imprisoned for
conducting his laundry without such consent. His petition for a writ of
habeas corpus was denied by the state supreme court and he appealed to
the United States Supreme Court. It is difficult to tell from the report
just what the court decided. There is some language in the opinion to
justify the conclusion that the court held the ordinance unconstitutional
on the sole ground of vesting an arbitrary discretion in a public official.
The court says : "The very idea that one man may be compelled to hold
his life, or the means of living, or any material right essential to the enjoy
642
MICHIGAN LAW REVIEW
ment of life, at the mere will of another, seems to be intolerable m any

country where freedom prevails, as being the essence of slavery itself."
In regard to the ordinances the court says : "They seem intended to confer
and actually do confer, not a discretion upon consideration of the circum
stances of each case, but a naked and arbitrary power to give or withhold
consent, not only as to places, but as to persons. * * * The power given tc
them is not confided to their discretion in the legal sense of that term, but
is granted to their mere will. It is purely arbitrary, and acknowledges
neither guidance nor restraint."
The effect of the above passage is weakened somewhat as the evidence
in the case showed that the ordinance in actual operation had been directed
exclusively against the Chinese. The evidence showed "an administration
directed so exclusively against a particular class of persons as to warrant
the conclusion that, whatever may have been the intent of the ordinances
so adopted, they are applied by the public authorities charged with their
administration, and thus representing the state itself, with a mind so unequal
and oppressive as to amount to a practical denial by the state of that equal
protection of the law which is secured to the petitioner as to all other
persons by the broad and benign provisions of the Fourteenth Amendment."
The court then goes on to say : "Though the law be fair on its face and
impartial in appearance, yet if it is administered by public authority with
an evil eye and an unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances material to their
rights, the denial of equal justice is still within the prohibition of the Con
stitution."
However, it is submitted that a careful analysis of the case shows that
the court did not declare the ordinance unconstitutional, either because it
vested an arbitrary power in the hands of a public official or because the
evidence showed' a wanton and wilful discrimination by the persons charged
with its administration against a particular class of persons. It merely
decided that the petitioner could not be punished under the ordinance. But
as the Supreme Court has never been called upon since to determine exactly
what was decided by the court in Yick Wo v. Hopkins, there must be more
or less speculation about it.
Two years before the decision in Yick Wo v. Hopkins, supra, the
Supreme Court decided in Barbier v. Connolly, 113 U. S. 27, that an ordi
nance of the city of San Francisco providing that no person should carry
on the business of a public laundry within certain limits without a certifi
cate from the health officer, and another certificate from the Board of Fire
Wardens, was valid. The Connecticut court in Ex parte Fiske, 72 Conn.
125, reconciles these cases by saying : "A correct understanding, however,
of the extent to which that case goes {Yick Wo v. Hopkins) can be had
only by considering that the proof, which the court looked into, showed
that the ordinance there under review was so administered as to exclude
the subjects of the emperor of China, and no others, from the business of
keeping a laundry. * * * It is evident from the language that the decision
NOTE AND COMMENT
643
rested mainly upon the admitted discrimination against a class of persons

in the public administration of the ordinance. The decision, therefore, as
an authority, goes no further than to hold that, under a state of facts sim
ilar in character to the facts of that case, an ordinance similar in character
to the one there passed on would be invalid."
There are no such facts in the principal case. There is no evidence
that there was any discrimination in the administration of the ordinance
against the plaintiff. On the contrary, the case was tried on its merits, and
the trial court refused to grant the plaintiff any relief. It is true that under
the ordinance in question the commissioner is given considerable discretion
in determining what was a menace to "the preservation of public morality,
health, peace, and good order." But could the legislature prescribe a more
definite rule of action? It seems obvious that the legislature could not
define all the circumstances and conditions which would be a menace "to
the preservation of public morality, health, peace, and good order." It seems
that in the very nature of things the determination of what conditions
come within the general rule must be left to an administrative officer.
The cases are in conflict on this question of the validity of statutes and
ordinances conferring unrestrained discretion. Many courts have upheld
ordinances similar to the one in the principal case. In Wilson v. Eureka
City, 173 U. S. 32, the court upheld an ordinance which forbade any person
moving a frame building owned by him without the written permission of
the mayor. The court approves the summary of cases in Re Flaherty, 1o5
Cal. 558, in which unrestrained discretion is sustained, and declare that dis
cretionary power is "based on the necessity of the regulation of rights by
uniform and general lawsa necessity which is no better observed by a
discretion in a board of aldermen or council of a city than in a mayor."
In Williams v. Mississippi, 17o U. S. 213, it was held that no relief could
be granted against a law merely because it confers a discretion readily sus
ceptible of abuse, if no actual discriminatory administration is shown. In
People v. Van De Carr, 199 U. S. 552, after citing a number of cases sus
taining a delegation of discretion to a board, the court says : "These cases
leave in no doubt the proposition that the conferring of discretionary power
upon administrative boards to grant or withhold permission to carry on a
trade or business which is the proper subject of regulation within the police
power of the state is not violative of rights secured by the Fourteenth
Amendment. There is no presumption that the power will be arbitrarily
exercised, and when it is shown to be thus exercised against the individual,
under sanction of state authority, this court has not hesitated to interfere
for his protection, when the case has come before it in such manner as to
authorize the interference of the federal court," citing Yick Wo v. Hopkins,
supra. In Davis v. Massachusetts, 167 U. S. 43, an ordinance of the city of
Boston providing that "no person shall, in or upon any of the public grounds,
make any public address," etc., "except in accordance with a permit from
the mayor," is valid. These cases would seem to indicate that the Supreme
Court of the United States is committed to the doctrine that administrative
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officers may be given discretionary power to act according to their own

unrestricted judgment, and that an ordinance or law granting this authority
is not, upon its face, void. In Commissioners of Eaton v. Covev, 74 Md. 262,
an ordinance was sustained requiring a permit from the commissioners for
the erection of a building in the city ; in Kessinger v. Hay, 52 Tex. Civ.
App. 295, 113 S. W. 1oo5, an ordinance was upheld requiring hackmen to
secure a license to use the streets as a public stand, reserving to the munici
pal authorities the discretion to say who shall and who shall not have per
mits; in Ex parte Bogle (Tex.), 179 S. W. 1193, an ordinance giving the
city authorities discretionary power to grant or refuse a license for operating
a jitney was upheld; in Laurelle v. Bush, 17 Cal. App. 4o9, 119 Pac. 953, an
ordinance giving the police commissioner power to grant or refuse a permit
to operate a moving picture show was upheld, although it did not prescribe
methods for its application. The court said : "It is a well recognized rule
of statutory construction that a general grant of power, unaccompanied by
specific direction as to the manner in which the power is to be exercised,
implies a right and a duty to adopt and employ such means and methods as
may be reasonably necessary to a proper exercise of the power. * * * Tested
by this rule, it cannot be said that the board of police commissioners is
vested with an undefined and whimsical discretion in the matter of granting
or refusing a permit."
Not every act giving an arbitrary discretion to an administrative officer
should be upheld, but in passing upon questions of this character practical
considerations and the necessity of administrative efficiency should be con
sidered. In these days, when the extent of governmental functions has
become so great and complicated, it seems that about all the legislature can
do is to declare the general policy of the law, and leave its enforcement and
application to the discretion of some official. It is presumed such discretion
will be exercised honestly. It seems reasonable that the courts should inter
fere with the exercise of such discretion only when it is alleged and proved
that this discretion has been abused. See 19 M1ch. L. Rev. 21 r ; also, FrEund,
Pol1ce Power, Sees. 642 655.
A. G. B.

Adverse Possess1onColor of T1tleWr1tten Instrument.Where
the defendant under a parol gift of an entire tract of land, but without any
"paper" title* took actual possession of only a part of the tract, but claimed
title up to its well-defined boundaries for the statutory period, it was held,
in an action by the heirs of the donor, that the defendant had acquired title
to the whole tract. Nelson v. Johnson (Ct. of App., Ky., 192o), 226 S. W. 94.
The general rule is that one must claim under "color of title" to acquire
title to land by constructive adverse possession. See 18 M1ch. L. Rev. 693.
The decisions are in conflict as to what constitutes "color of title." The
majority view requires some sort of written instrument. 2 C. J. 17o. See
also 7 M1ch. L. Rev. 251 ; 18 M1ch L. Rev. 693. It would seem that the
reason for requiring "color of title" is to give some dependable means of
determining the extent of the occupant's claim and in a measure to give
notice of such claim to the owner. The necessity of a written instrument
has been dispensed with under various circumstances. Where the adverse
holder has had actual possession of a part of a tract under a state of facts
which of themselves, though not adequate to constitute actual possession,
show the character and extent of his claim, it has been held that "such facts
* * * perform sufficiently the office of colcr of title." Bell v. Longuorth, 6
Ind. 273; Hilt v. Carr, 62 Ind. App. 8o; Stanley v. Schoolbrcd, 25 S. C. 181.
Where party claiming adversely entered without "color of title," actually
occupied part of a lot with a definite boundary marked upon the land to
which he claimed title, it was held he had constructive possession of the
whole. Hodges v. Eddy, 38 Vt. 327; Lang v. Clark, 85 Vt. 222; Pratt v.
Ard, 63 Kan. 182; he Moyne v. Neal, 168 Ky. 292; Milliard v. Napier, 167
Ky. 2o8. Under facts similar to those of the principal case, where the party
goes into possession of part of a tract with well-defined boundaries under a
parol gift or contract of sale of the whole, a number of courts have held
that the donor or vendor is charged with notice of the extent of the other
party's claim, and that therefore, as between the immediate parties and their
privies, no "color of title" is necessary for the doctrine of constructive
adverse possession to apply. Niles v. Davis, 6o Miss. 75o; Davis v. Davis,
68 Miss. 478; Normant v. Eureka Co., 98 Ala. 181; Brown v. Norvell, 96
Ark. 6o9. But see Parker v. Kelsey, 82 Ore. 334; Allen v. Mansfield, 1o8
Mo. 343. In view of the theory for requiring "color of title," given supra,
the cases seem correctly decided. That they are considered exceptional, see
2 C. J. 232; 2 A. L. R. 1457.
Carr1ersL1m1tat1on of the Amount of L1ab1l1ty.The consignors
delivered to the Pacific Mail Steamship Company, at Yokohama, Japan, on
March 1o, 1915, 56 cases of goods consigned to their own order at New
York, billed through by way of the Southern Pacific Railroad' and its con
nections. Only one rate was given in the bill of lading, and it contained a
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MICHIGAN LAW REVIEW
clause limiting the amount of liability to $1oo per package. Without new
billing, it came into the custody of the defendant railroad, and was there
lost in a collision. Defendant had filed schedules of rates with the Inter
state Commerce Commission, which contained but one rate applicable to the
shipment. Plaintiff, successor to consignor in interest, sued for invoice value.
Defendant claimed that plaintiff was limited to $1oo per package. Held,
plaintiff may recover invoice value of goods. Union Pacific Railroad Co. v.
Burke (February, 1921), U. S. Supreme Court.
For note on decision in lower court, see 18 M1ch. L. Rev. 423. For the
purpose of the case, it was accepted that the property should be treated as
moving eastward from San Francisco under the Uniform Bill of Lading,
although the Yokohama bill was the only one issued. The Uniform Bill of
Lading provides that the amount of loss shall be the invoice value of the
goods, unless a lower value has been represented in writing, agreed upon,
or is determined by the tariffs upon which the rate is based. The court held
that since no choice of rates was or could have been given under the pub
lished schedules, there was no estoppel to limit the plaintiff to the "released"
rate (see Hart v. Pennsylvania Rd. Co., 112 U. S. 331), although the defend
ant contended that it was not necessary to the valuation agreement that
there should be such a choice of rates offered. Had defendants' filed sched
ules shown alternative rates for different valuations, since this shipment
was still under the Carmack Amendment, plaintiff would have been consid
ered estopped to recover full value. Kansas City Southern Rd. v. Carl. 227
U. S. 639; Wells, Fargo & Co. v. Neiman-Marcus Co., 227 U. S. 477. By
the magic invoked by filing the rates a contract would have been made con
clusively binding on both shipper and carrier, whether the shipper knows
of the rates filed or not. Boston & Maine Rd. v. Hooker, 233 U. S. 97;
Atchison, Topeka & Santa Fe Rd. Co. v. Robinson, 233 U. S. 173. On the
other hand, according to the principal case, if the shipper carefully reads
the Uniform Bill of Lading, and knowing that he might possibly make the
carrier liable for the invoice value, yet signs a contract limiting recovery
to the one value for which a rate has been filed, it would seem that he is
not estopped, for the reason that another rate with full liability was not filed.
The principal case makes the ground for estoppel the selection of the lower
of two rates with limited liability, so that where there is no rate lower than
another there can be no estoppel. There are statements to that effect in
the cases. In Cincinnati, New Orleans & Tex. Pac. Rd. Co. v. Rankin, 241
U. S. 319, the court said : "Under our former opinions, the settled doctrine
is that where alternate rates, fairly based on valuation, are offered, a rail
road may limit its liability by special contract." See Great Northern Rail
road Co. v. O'Connor, 232 U. S. 516; Wells, Fargo & Co. v. Nieman-Marcus
Co., supra; Missouri, etc., Ry. Co. v. Harriman, 227 U. S. 657. But the
inconsistency shown above is the result of the artificial development of estop
pel in these cases. See Pierce Co. v. Wells, Fargo & Co., 236 U. S. 278;
see 15 Col. L. Rev. 399, 475. The principal case is undoubtedly r1ght in
holding that limitation of the amount for which carrier is liable is an excep
647
tion to the carrier's common law liability, and that the rule governing this
exception is not to be extended to apply where no choice of rates is given.
The defendant cannot go outside the filed rates, and with no choice offered
there is an illegal contract of limitation comparable to that in Boston &
Maine Rd. Co. Co. v. Piper, 246 U. S. 43o.
Const1tut1onal LawE1ghteenth AmendmentDouble Jeopardy.
Indictments under the National Prohibition Act, in five cases considered
together. In two cases there had been convictions under a state statute more
stringent than the national law; in the other three there had been convic
tions under municipal ordinances. Held, convictions under the state statute
were a bar to indictments under the national law ; those under the municipal
ordinances were not a bar. United States v. Peterson et ai, and four other
cases (C. C. A., 8th Circ., 1o2o), 268 Fed. 963.
The convictions under the ordinances were not a bar, since the state
had not delegated its concurrent authority to the municipalities; but the
convictions under the state statute were held to be a bar because it was
not intended that one should be punished both under state and federal law
for the same offense. There is some early authority for such a holding;
see Commonwealth v. Fuller, 8 Met. 313; Cueth v. Overby, 3 Ky. Law 7o4,
where it is said that conviction in one jurisdiction would be a bar to an
indictment in another jurisdiction, since it is for the same offense. And in
Harlan v. People, 1 Douglas 2o7, it was said that it logically follows, from
the fact of concurrent power in the states and in the federal government
to pass laws punishing counterfeiting, that conviction in either state or
federal court is a bar to conviction in the other. But by the great weight
of authority a single act may be a violation of the laws of both govern
ments, and conviction or acquittal in the courts of one is no bar to prosecu
tion in the courts of the other. Cross v. North Carolina, 132 U. S. 132, 139;
17. S. v. Barnhart, 22 Fed. 285; U. S. v. Wells, 28 Fed. 522; U. S. v. Palan,
167 Fed. 991; see Fox v. Ohio, 5 How. 433; Moore v. Illinois, 14 How. 56o;
U. S. v. Amy, 24 Fed. Cas, 792, 81o; Ex parte Siebold, 1oo U. S. 341, 389.
In the very nature of things, two sovereignties cannot have jurisdiction over
the same offense, unless it is one arising under the law common to all, as
the law of nations ; see U. S. v. Pirates, 5 Wheat. 197. Neither government
should be permitted to hinder the other in the enforcement of its own laws.
Otherwise, where the policy of one differs from the policy of the other, one
guilty of an offense against one sovereignty might plead in bar a conviction
and comparatively light punishment inflicted by the other. State v. Rankin.
4 Coldwell 145 ; see U. S. v. Barnhart, supra. The criminal cannot com
plain, for he owes allegiance to both governments and is protected by both.
See State v. Moore, 143 la. 24o, 21 Ann. Cas. 63, with full note on whole
subject, page 64. The jurisdiction which first has control over the subject
matter of the offense, by comity, fhould continue to exercise jurisdiction
until judgment, thus avoiding embarrassing conflict. U. S. v. Wells, supra;
U. S. v. Barnhart, supra. Prior conviction may be taken into consideration
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in determining punishment; U. S. v. Palan, 167 Fed. 991; but the record of

a former acquittal should not even be introduced into evidence. Slate v.
Kenney, 85 Wash. 441. In the cases cited it is clear that both the states
and the federal government have "concurrent power" to make laws punish
ing the same acts ; hence, they may be considered direct authority for vio
lations against state and federal laws passed under the Eighteenth Amend
ment. For the meaning of "concurrent power" under the Eighteenth Amend
ment, see 19 M1cu. L Rev. 329. In case of a state statute passed in aid of
the national act itself, the holding of the court in the principal case might
be correct; but the fact was that the state statute had been passed prior to
the national act. And compare U. S. v. Mason, 213 U. S. 115. It should be
noted that the "double jeopardy" provision in the Federal Constitution,
Fifth Amendment, applies only to the federal courts. Sec Fox v. Ohio, U.
S. v. Barnharl, supra.
Const1tut1onal LawLever ActIndef1n1te Offense.Defendant was
indicted under the Act of October 2, 1919, c. 8o, 41 Stat. 397,, commonly
known as the Lever Act, for selling sugar at an unjust and unreasonable
price. The act provides: "That it is hereby made unlawful for any person
wilfully * * * to make any unjust or unreasonable rate or charge in handling
or dealing in or with any necessaries; to conspire, combine, agree, or arrange
with any other person. * * * (e) to exact excessive prices for any neces
saries * * * Any person violating any of the provisions of this section, upon
conviction thereof, shall be fined not exceeding $5,ooo, or be imprisoned for
not more than two years, or both * * *" On appeal to the Supreme Court
it was held that the indictment had been properly quashed on the ground
that the act under which the proceedings were instituted was so vague in
its provisions as to what was thereby made an offense that it was unconsti
tutional. United States v. L. Cohen Grocery Co., Adv. Ops., Feb. 28, 1921,
No. 324.
For discussions of cases involving the validity of statutes defining acts
amounting to an offense in terms in general as vague as those passed upon
in the principal case, see 18 M1ck. L. Rev. 81o; 19 M1ch. L. Rev. 218. See
also 19 M1ch. L. Rev. 337, discussing one of the lower court decisions under
the Lever Act. Many of the cases have involved regulations of speed and
lights of automobiles. There is no question that the Lever Act left the
matter pretty vague, but it probably is impossible to frame a statute on
such subject that would be definite.
Const1tut1onal LawRev1ew of Act1on of Adm1n1strat1on Board.A
Wisconsin statute required that the approval of the application by the fire
and police commission of a city should be secured before any person could
engage in the business of a private detective. The standard of qualification
prescribed by the statute for obtaining the license is that the applicant shall
be a person of good character, competency, and integrity. The plaintiffs
claimed that the statute gave the fire and police commission arbitrary power
649
to give or withhold their approval for a license, and that therefore the law
was invalid as depriving the plaintiffs of due process of law and of the
equal protection of the law. Held, the statute dees not vest an arbitrary
power in the police and fire commissioners. It prescribes a standard of
qualification that is an ascertainable and known one, and is readily under
stood as a matter of common knowledge. Manufacturers' and Merchants'
Inspection Bureau v. Buech (Wis., 1921), 181 N. W. 125.
In this case, however, while holding that the legislation did not result
in a denial of due process of law, nor confer legislative authority on the
fire and police commissioners, yet the court held that plaintiffs had stated a
good cause of action and were entitled tc relief because they alleged that
the commissioners capriciously and wrongfully refused to grant the appli
cations. The principles involved in these cases are discussed in 19 M1ch. L.
Rev. 211.
Const1tut1onal LawStatute Regulat1ng the Sale of Text-books.
Public Acts of Michigan, 1919, No. 38o, regulating the sale of school text
books by prohibiting public officers from buying any books except those
listed with the state superintendent of schools and at certain fixed prices,
held constitutional, except as to Section 7, which, in making it unlawful for
retail dealers to sell books at higher prices than those listed, without limiting
such prohibited sales to school officers, is void as beyond the power of the
state. MacMillan Co. v. lohnson (D. C, S. D., Mich., 1o2o), 269 Fed. Rep. 28.
Unquestionably, the legislature has the general power to regulate the
conditions under which the state may deal with those who are desirous of
selling text-books for use in the public schools. MacQueen v. Port Huron,
194 Mich. 328. Plaintiff publishing company having no vested right to deal
with the school authorities, and not being forced to do so, may not then
complain because these authorities impose conditions upon which they will
purchase such text-books. Polzin v. Rand, McNally & Co., 25o Ill. 561.
The only invalidity appearing in the act is found in Section 7. providing that
no retail dealer shall sell any of the listed books at a price higher than
fifteen per cent above the wholesale price and the cost of transportation.
Such a provision is an unwarranted interference with the right of contract
and the right to engaged in the private business of book-selling at retail,
and beyond the power of the state. For this general subject of the right of
legislatures to regulate prices, see Munn v. Illinois, 94 U. S. 113; 19 M1ch.
L. Rev. 74. That statutes regulating the retail prices of books are not
unknown, however, appears from similar statutes found in the English enact
ments of the time of Henry VIII, Chapter 15, and from a statute enacted
in New York in 1786. Greenleaf's Laws, p. 275.
ContractsMoral Cons1derat1on.By the terms of an oral contract
under which plaintiff had effected a sale of land for defendant a commission
of $5oo was due. Section 11,981 of M1ch1gan Comp1led Laws (1915) pro
vides that "Every agreement, promise, or contract to pay any commission
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MICHIGAN LAW REVIEW
for or upon the sale of any interest in real estate" shall be void unless the
same or some memorandum thereof be in writing. Defendant gave plaintiff
a promissory note for the amount stated, upon which note action was brought.
Held, the note was an enforceable promise, the consideration therefor being
the moral obligation upon defendant to pay plaintiff his commission. Bagaef
v. Prokopik (192o), 212 Mich. 265.
Under the influence of Lord Mansfield, who was obviously impatient
with the common law doctrine of consideration (see, for example, Fillans
v. Van Mierop, 3 Burr* 1663), there was a marked movement about the
middle of the eighteenth century to recognize moral obligation, a species
of past consideration, as sufficient consideration to support a promise. See
Watson v. Turner, Buller's N. P. 129; Atkins v. Hill, Cowp. 284; Barnes v.
Hedley, 2 Taunt. 184; Lee v. Muggeridge, 5 Taunt. *36. Not long after
Lord Mansfield's death serious questions were raised as to how far moral
consideration should be recognized. In a learned note to Wennal v. Adney,
3 B. & P. 249 (18o4), the cases were examined and the following stated as
the proper rule: "An express promise, therefore, as it should seem, can
only revive a precedent good consideration, which might have been enforced
at law through the medium of an implied promise, had it not been suspended
by some positive rule of law, but can give no original right of action, if the
obligation on which it is founded never could have been enforced at law,
though not barred by any legal maxim or statute provision." In 1831, in
Littlefield v. Shee, 2 B. & Ad. 811, Lord Tenterden expressed doubts as to
the Mansfield doctrine, and in Eastwood v. Kenyon, 11 Ad. & El. 438 (184o),
the above quoted rule from the note to Wennal v. Adney was approved.
This is the English view today. See W1ll1ston on Contracts, 147; Leake
on Contracts [6th ed.], 443. In truth, it would seem, as said by Parker, C.
J., in Mills v. Wyman, 3 Pick. 2o7, that wherever a man has deliberately
made a promise he is morally obligated to perform. In general, the Amer
ican courts follow about the same rule as applied in Eastwood v. Kenyon.
See, for example, Mills v. Wyman, supra; Lyell v. Walbach, 113 Md. 524,
33 L. R. A. (N. S.) 741. However, in a few jurisdictions there apparently
is a disposition to adhere to the broader view of Lord! Mansfield. See Davis
v. Morgan, 1o7 Ga. 5o4, applying a statute; Sutch's Estate, 2o1 Pa. 3o5.
The principal case indicates that in Michigan that view is well received,
particularly since contracts not complying with the statute there involved
are treated as really void. Scott v. Bush, 26 Mich. 418.
ContractsVo1d as St1fl1ng Compet1t1on.Plaintiff and defendant
attended a British government auction, and to avoid competition an agree
ment was made for defendant to bid on their joint account and that what
ever he purchased should be divided equally, each paying one-half the pur
chase money. After the sale defendant repudiated the contract. Hfld, the
agreement is unenforceable as being against public policy, at all events where
the goods so sold are the property of the public. Rowlings v. General
Trading Co., [192o] 3 K. B. 3o.

Whx1ston on Contracts, Vol. Ill, Sec. 1663, states that in cases of this
type the United States authorities regard the contract as void, while in Eng
land the contrary view is held. The court in the principal case, in referring
to the former English decisions, states that equity has taken a different view
than the common law, discussing In re Carew's Estate, 26 Beav. 187, in
which a sale by the court was not set aside, although the two bidders agreed
not to bid against each other, but that one should bid up to 15oo and divide
the lot between them. They bought it for 65o, and the court held that this
agreement furnished no ground for opening the bidding or annulling the sale,
as there was no fraud, for the reserved price was put at 6oo. In Galton
v. Emus, 1 Coll. 243, the vice chancellor held that an agreement between
two persons who are desirous of purchasing an estate advertised for sale by
auction, that one of them shall not bid against the other, is not illegal. In
Levi v. Levi, 6 Car. & P. 239, cited to support the principal case, the jury
were directed that an agreement between brokers for stifling competition
was an indictable conspiracy. In the United States the courts have disposed
of this problem much more effectively. 2o L. R. A. 545, note. In Doolin v.
Ward, 6 Johns. Rep. 194, the Supreme Court of New York decided that such
an agreement was void and against public policy as tending injuriously to
affect the character and value of sales at auction. The point was decided
similarly in Ralphsnyder v. Shaw, 45 W. Va. 68o. The case of Phippen v.
Stickney, 3 Met. (Mass.) 384, points out the true principle by ruling that
"an agreement by two or more persons that one of them only will bid at
an auction of property, and will become the purchaser for the benefit of
them all is illegal if it is made for the purpose of preventing competition
at the bidding and depressing the price of the property below the fair market
value. Otherwise, if the purpose of the agreement be to enable each of the
parties to become a purchaser, when he desires a part of the property offered
for sale and not the whole lot ; or if the agreement be made for any other
honest and reasonable purpose." The test as applied in Fisher v. Transpor
tation Co., 136 Mich. 218, is that "where the circumstances show that the
consideration for the promise is in whole or in part an attempt to prevent
competition at a public sale, the contract is void," and it would seem as
though its application would effectually support the conclusion of the Eng
lish court and point out the distinction in the cases discussed.
Cr1m1nal LawPost-dated Checks W1thout Funds.A statute pro
vided that the issuance of a check or draft on any bank without authority,
when there were insufficient funds to cover the same, should be punishable
by fine. D issued a post-dated check without authority or funds and was
prosecuted under the statute. Held, the statute was not applicable to the
execution of a post-dated check. Smith v. State (Ark., 1921), 226 S. W. 531.
The only question in the case was whether a post-dated check came
within the provision "check or draft." The word "check" has generally
been held to mean drafts payable presently upon a bank; while the word
"draft" includes instruments payable at a future date. Thus, it would seem
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MICHIGAN LAW REVIEW
that in order to give the word "draft" any meaning at all it muJt be held
to include instruments payable at a future date. See Words and Phrases,
p. 2195; Hinneman v. Rosenbach, 39 N. Y. S. 98. In the principal case the
court decided that a post-dated check was not within the statute because
they regarded the statute as being in essence directed against false pretenses,
and that a post-dated check merely implied a promise to have sufficient funds
in the future. Accord, State v. Fsrris, 171 Ind. 562. But the same court
has applied the same reasoning to a check which was not post-dated, iiaxey
v. State, 85 Ark. 499; State v. Foxton, 166 la. 181, Ann. Cas. 1916E, 727,
contra; and if the Arkansas court applies the doctrine of the Maxey case,
supra, to situations arising under the statute, it is difficult to see just what
cases the statute will be held to cover.
DamagesBreach or Contract where there 1s no Market for the
Art1cle.A contracted to deliver to B certain shavings for a specified period
at a certain price. There was no established market for such shavings, but
B resold some of them to an established customer. After a misunderstanding
A repudiated his contract, stopped delivering to B, and thereafter sold the
shavings to third parties. In a suit by B for breach of contract, it was held
that the measure of damages should be based on the difference between the
price B paid A and the price B received from his established customer, and
not on the basis of the price A received in his new sales after repudiation.
Kennon v. Brooks-Scanlon Co. (La.. 1o2o), 86 So. 675.
The general rule in cases where the article contracted for has no market
value is that where the seller contracts to furnish such goods and the buyer
resells the goods furnished him, the measure of damages is the difference
between the price the buyer was to pay the seller and the price he was to
receive in his resales. France v. Gaudet, L. R., Q. B. 199; Trigg v. Clay, 88
Va. 33o, 13 S. E. 434. The principal case sanctions this rule, but adds a
new point. It says that even though the vendor, after wrongfully breaking
his contract, by new sales to third parties establishes a market for the article
sold, the measure of damages shall still remain the same. It holds that the
disappointed vendee should not have the benefit of the vendor's new sales.
Although it may seem that such a doctrine allows the vendor to profit by
his wrongful breach of contract, on a strict analysis of the true theory of
damages the rule seems reasonable and just. Damages should compensate
for injuries suffered, and their amount should be established with reason
able certainty. Brown v. Producers' Oil Co., 134 La. 672, 64 So. 674. There
is no certainty that the vendee could have established the market the vendor
succeeded in establishing by his new sales. The vendor's superior salesman
ship or facilities may have gotten for him the higher price. What is certain,
though, is that the vendee could get the price he did get from his established
customer, and this should be the basis of the measure of damages.
DamagesFluctuat1ng Exchange.A collision occurred between two
British vessels in New York harbor, and suit therefor was brought in that
653
district, but repairs were made in England and paid for in English pounds,
and demurrage was also computed by agreement in that money. In reducing
such sums to American money for the purposes of the decree, it was held
that the rate of exchange applicable was that of January 1, 1916, the date
upon which the damages were ascertainable, and not the rate prevailing at
the time of the final decree. . The Verdi (April 3, 192o), 268 Fed. 9o8.
On May 4, 191 5, in Paris, France, defendant had delivered to the plaintiff
certain notes, due August 4, 1915. Suit was brought on these notes in New
York on May 21, 192o, and judgment was entered against the defendant on
November 16, 192o. Held, "the notes became payable in dollars upon plain
tiff's demanding of the defendant their payment in this state. The com
mencement of the action was equivalent lo such a demand. The amount
due in dollars depended upon the rate of exchange existing at the time of
the demand, or, in this case, the commencement of the action." Revillou v.
Demme (December 22, 192o), 185 N. Y. S. 443.
It will be observed that in both the above cases, the one in tort, the other
for breach of contract, the American courts have followed the latest decision
of the English court on this point. See Di Ferdinando v. Simon Smits Cr
Co., Limited, [192o] 3 K. B. 4o9; noted in 36 Harv. L. Rev. 422; also 37 Law
Quart. Rev. 38-45. All these decisions are based on the fundamental
rule of damage that the amount of recovery should be reckoned at
the time and place when and where the sum due first becomes liquidated,
and it seems somewhat surprising that there should have been so much
litigation of the point. The earlier cases in America said "the value
must be fixed according to the rate of exchange at the time of the trial."
l.ee v. Willcocks, 5 Serg. and Rawle (Pa.) 48 (1819) ; see also, Marburg
v. Marburg, 26 Md. 8 (1866). As Story also had said that the plaintiff
"is entitled to have an amount equal to what he must pay in order to
remit" to the foreign country (Confl1ct of Laws, 31o), the view
that the rate of exchange should be reckoned at the time of the
trial and not at the time of liquidation seemed to have attained almost the
dignity of an "American Rule" on the point, and it was not until the decision
in the Di Ferdinando Case, supra, that the matter was definitely settled in
England. The court in the last mentioned case said "fluctuations in the
value of the goods which ought to have been delivered are too remote as
a consequence of the original breach." So also we must exclude "subse
quent changes in the value of the currency after the date of the breach."
Confusion would be avoided if we would keep in mind the statement in
The Verdi case, supra, that we are always trying to find the "equivalent in
dollars" at the time and place where the damages were ascertainable, and
this, too, whether the suit is for the breach of a contract or in tort, for a
conversion or trespass. If we reckon the value at the time of the trial
we violate our basic rule of computation, for though we thus take the place
of liquidation we do not take the time of liquidation, but depart from it.
It should be noted that in both the instant cases and in the English case of
Di Ferdinando v. Simon Smits & Co., Limited, supra, this rule benefits the
654
MICHIGAN LAW REVIEW
plaintiff, because the rate of exchange was changing in favor of the country
in which the suit was brought. It may well be inquired whether the courts
would stand by the rule if the converse of this were true, so that the ver
dict would be less favorable to the plaintiff. If the New York court and
the United States court should stick to the rule, they would apparently be
out of harmony with the theory of the New York court in Baker v. Drake,
53 N. Y. 211 (1873), as to the measure of compensation in case of conver
sion of stocks of fluctuating value, the rule which was afterward adopted
by the United States court in Galligher v. Jones, 129 U. S. 193 (1888). But
whatever may be said about consistencyif we may assume that the courts
of last resort in New York and in the United States will uphold their sub
ordinate courtswe seem at last to have reached a uniform rule in England
and in America, and as this solution seems not only to be in accord with
justice but also not out of harmony with the fundamental theories of proper
legal compensation, we may assume that our law on this point is finally settled.
D1vorceFore1gn Decree, Grant1ng Husband D1vorce, a Bar to W1fe's
Su1t to Recover Sums for Necessar1es.A wife brought an action against
her husband in New York to recover from him the sums which she claimed
to have spent out of her separate estate, in discharge of his obligation to
provide her with the necessaries of life suitable to her condition. While
this action was pending the husband began an action in Nevada against the
wife for divorce on the ground of extreme cruelty. She appeared and
defended the action, denying the allegations of the complaint, and setting
up abandonment and non-support as a defense. The Nevada court entered
a final decree in favor of the husband, dissolving the marriage. He there
upon served a supplemental answer in the action pending in New York,
setting up the Nevada decree as a bar. Held, the decree of the Nevada
court was a bar to the wife's suit in New York. Pearson v. Pearson (N. Y.,
192o), 129 N. E. 349The wife's claim was that her husband abandoned her without making
any provision for her support, and therefore all expenditures for neces
saries made by her during the period of abandonment should be repaid to
her by her husband. On the other hand, her husband claimed that he was
justified in leaving her upon her own resources during all the period for
which she is claiming compensation, because of her conduct. The pleadings
in the Nevada divorce case presented the question of the right of the hus
band to abandon his wife during the entire period when the expenditures
sued for were made, and this issue was tried and determined in the hus
band's favor by the decree. The decision in the principal case is therefore
sound, because in this case the wife is seeking to re-litigate the very issues
decided adversely to her by the Nevada court. This cannot be done under
the full faith and credit clause of the Constitution of the United States
(Art. 4, Sec. 1). See Fauntleroy v. Lum, 21o U. S. 23o; Harris v. Back,
198 U. S. 215; M1nor, Confl1ct of Laws, p. 188.
655
Ev1dencePr1v1leged Commun1cat1ons between Husband and W1fe

"Any Commun1cat1on" Construed.An Oregon statute provided that neither
husband nor wife could be, without the consent of the other, examined as
to any communication made by one to the other during the marriage relation.
In an action for alienation of affections, held, this statute applies to all
communications, and not merely to communications confidential in their
nature. Pugsley v. Smyth (Ore., 1921), 194 Pac. 686.
Another state is thus added to those whose literal interpretation allows
such a statute, in the language of Professor Wigmore, "to create an intol
erable anomaly in the law of privileged communications." W1gmore, Ev.,
2336. Iowa, Michigan, Ohio, Utah and' Washington have construed "any
communication" to mean only those which in their nature seem confidential.
See Sexton v. Sexton, 129 Iowa 487; Ward v. Oliver, 129 Mich. 3oo. Cali
fornia, Colorado, Illinois, Rhode Island and Virginia construe the words in
their natural meaning to embrace all communications of whatever kind.
Park v. Park, 4o Colo. 354; Reeves v. Herr, 59 Ill. 81. The reason for this
difference of view no doubt arises partly from the conflict as to the extent
of the common law rule. The Minnesota court says that the common law
was settled in England in 1842 by the case of O'Connor v. Majoribanks, 4
Mann. & Gran. 435, and extended to communications on all subjects. Leppla
v. Minn. Trib. Co., 35 Minn. 31o. See also Best, Ev. [1oth Ed.], 175. Yet
many years later it was declared that the common law rule extended only
to confidential communications. People v. Mullings, 83 Cal. 138. Statutes
removing disability of witnesses on account of being parties to, or interested
in, the action have been held not to remove the disability existing between
husband and' wife as to confidential communications. Gee v. Scott, 48 Tex.
51o; Hopkins v. Grimshaw, 165 U. S. 342. These decisions seem to indicate
that the chief reason for the privilege was to protect the confidences of the
marriage, and not because of the common law doctrine of the legal identity
of husband and wife. O'Connor v. Majoribanks, supra, recognizes that
public policy was the foundation for the rule, but denies that the rule would
be effective if extended only to confidential communications. It would seem,
however, that the rule should be coextensive with the reason. See 9 M1ch.
L. Rev. 248.
Ev1dence"Th1rd Degree" Confess1on not VoluntaryPlaintiff in
error had been convicted of murder solely upon his own repudiated confession,
which was made under the following circumstances: While being held
incommunicado, without process, he was questioned almost continuously by
various officers for the greater part of four nights and three days; no threats
of violence or hope of leniency were held out; he was warned that anything
he might say would be used against him. After professing total ignorance
of the crime during all this time, he finally confessed to having driven the
automobile from which the fatal shots were fired. Held, confession was not
voluntary and was inadmissible in evidence. Vinci v. The People (III.,
192o), 129 N. E. 193.
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MICHIGAN LAW REVIEW
In approaching the question of the admissibility of confessions two con

flicting considerations must be borne in mind. On the one hand, the state
would be seriously handicapped in the apprehension and conviction of crim
inals if only spontaneous confessions were permitted. On the other hand,
the accused, who is presumptively innocent, has the unquestioned right to
make no statement whatever. There is considerable tendency, either by
statute or judicial decision, toward holding confessions not voluntary where
the only element of coercion is persistent and long-continued questioning.
Ky. St. 1912, c. 135, P- S42'. Com. v. McClanahan, 153 Ky. 412; People v.
Borello, 161 Cal. 367; State v. Thomas, 25o Mo. 189; Ammons v. State, 8o
Miss. 592; Gallaher v. State, 4o Tex. Cr. R. 296. Professor Wigmore dis
tinctly disapproves of this tendency. 5 W1gmore on Ev1dence [-2nd Ed.]
851. Baron Parke characterized it as "sacrificing justice and common
sense at the shrine of mercy." Reg. v. Baldry, 12 Eng. L. & Eq. R. 59o.
The amount of persuasion which will render a confession involuntary must
depend largely upon the circumstances of each case, with due regard to the
age, mentality, and physical endurance of the prisoner. If the questioning
is so long continued that the prisoner's power of resistance is broken down,
or that his only hope of surcease seemingly lies in giving the answers that
the questioner expects, it would seem palpable that the confession is not
voluntary. Even if admitted, its probative value would be rather slight.
No valid objection is seen to a reasonable amount of questioning. It is sub
mitted that the surest and most convenient way to prevent excesses by those
in authority, spurred on by the popular demand for the suppression of the
ever present "crime wave," is to render confessions inadmissible in evidence
when they are so improperly obtained. It is felt, however, that the trial
court is in a much better position to determine the effect which the interro
gation had upon the prisoner than an appellate court can possibly be, and,
therefore, the power of review should be exercised very sparingly.
G1ftsD1rect1ons to the Debtor to Pay Debt to Donee 1s Suff1c1ent
Del1very.Defendant was indebted to the plaintiff's testatrix. There was
no written evidence of the debt. Plaintiff's testatrix orally directed the
defendant to pay $1,ooo to her grandchild upon her death, which he did.
Plaintiff, as administrator of the estate, sued to recover the money on the
ground that the intent to make a gift was not executed by a delivery. The
question was whether an unqualif1ed direction by the creditor of a debt
unevidenced by any writing to the debtor to pay another was a sufficient
constructive delivery. It was held that, the creditor having done all that was
possible under the circumstances to put the debt out of his control, there
was a sufficient constructive delivery. Dinslage v. Stratman (Neb., 192o).
18o N. W. 81.
To be a valid parol gift, there must not only be an intent to give but
there must be a delivery. Irons v. Smallpiece, 3 B. & Aid. 551 (1819). But
just what will constitute a delivery has frequently troubled the courts. In
Poff v. Poff (Va., 192o), 1o4 S. E. 719, 19 M1ch. L. Rev. 552, the creditor of
657
a debt unevidenced by any writing orally directed the debtor to pay another
with the intent of making a gift to that person. The court held there was
no delivery, as no instrument by the use of which the debt could be reduced
into possession was delivered to the donee. In Cook v. Lum (1893), 55 N.
J. L. 373, where the only evidence of the debt was a piece of paper with a
column of figures, the court held that the delivery of this paper to the donee
with the intent of making a gift was not a valid gift, for the donor parted
with nothing which was essential to his own dominion over the money in
question. To be a delivery of a chose in action in the above jurisdictions,
there must be delivery of the donor's voucher of right or title to the donee ;
and if there is no written evidence of the chose the donor, it would seem,
must create written evidence if he would make a valid gift. Cook v. Lum,
supra; Adams v. Merced Stone Co. (1917), 178 Pac. 498. There is another
line of authorities, however, which follow the doctrine laid down in the
principal case, and hold that where the creditor of a debt unevidenced by
any writing directs the debtor to pay it to another the gift is executed
because the donor has done all that could be done under the circumstances
to make a delivery. Ebel v. Piehl (19o3), 134 Mich. 64. It is interesting to
note that the court in the principal case does not rest its decision upon the
ground that no delivery was necessary in such cases, but satisfies itself with
saying "there was an absolute completed gift when Thersa Stratman directed
the defendant to pay the money to Tracey, and there was a sufficient con
structive delivery." Just what constituted this constructive delivery outside
of the intent to give is hard to say. It would seem that the effect of the
court's decision is to hold that no delivery is necessary when the thing
sought to be given is a chose in action unevidenced by any writing, and
that another limitation is thus placed upon the doctrine of Irons r. Smallpiece, supra. It is submitted that the conclusion at which the court in the
principal case arrived was correct, but that the decision might well have
been placed upon the ground that no delivery in such cases is necessary.
Husband and W1feAttorney's Fee not "Reasonable and Necessary
Fam1ly Expense."In a suit brought under the Iowa Code, which allows
the estate of the wife to be held for "reasonable and necessary family
expense," it was held that litigation expenses incurred by the husband in
defending a charge of felony were not "family expense," and that the estate
of the wife was not liable therefor under the above statute. Soger, Sweet,
and Edwards v. Risk ct al. (Iowa, 192o), 18o N. W. 299.
The liability of the wife for "family expense" is entirely statutory, the
husband being under obligation to pay all such expenses under the common
law. McCartney & Sons v. Carter, 129 Iowa 2o; Martin v. Vertres, 13o Iowa
175. Hence, the liability of the wife must be determined entirely from the
construction of the statute and the meaning of the words "family expense."
The meaning of this phrase has generally been limited to things used in the
family, kept for the family use, or beneficial thereto. Smedley v. Felt, 41
Iowa 588; Phipps v. Kelly, 12 Ore. 213, 6 Pac. 7o7. But this is not neces
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MICHIGAN LAW REVIEW
sarily limited by those things that are reasonably necessary for family use
so long as they in fact go to the family support or are used jointly by the
husband and wife. The extreme of this appears in Ncasham v. McNair,
1o3 la. 695, in which the wife's estate was held for an expensive stick-pin
purchased and used by the husband exclusively. This was held to be family
expense upon the basis that since it was an article of personal adornment
commensurate with the wealth and position of the family, it was "family
expense" to the same degree as expensive clothing, which has always been
considered in that category. On the other hand, a buggy purchased by the
husband primarily for his personal use and to aid him in carrying on his
professional duties as a doctor is not within this classification. Staver Car
riage Co. v. Beudry, 138 Ill. App. 147. The argument of the plaintiffs in the
principal case is based upon the holding of various courts that medical
expenses incurred by the husband for his own illness are expenses of the
family for which the wife may be held under similar statutes. Vest v.
Kramer, la. , 114 N. W. 886; Murdy v. Skyles, 1o1 la. 549. 7<> N. W.
714; Leake v. Lucas, 65 Neb. 350, 91 N. W. 374. And the claim is that liti
gation expenses should fall into the same category as medical and surgical
expenses. The basis brought forward to support this is that all such expenses
benefit the family in that they tend to return the husband to the bosom of
his family. The court seems to adopt the sound view when it says that
such an argument, if applied to expenses of litigation, would impose a
liability on the wife for any legal difficulties in which the husband might
become involved, so long as they might, by a successful culmination, result
in making the husband better able to support his family. Such a result does
not seem contemplated by the statute, which makes the wife liable for "only
reasonable and necessary family expense."
Husband and W1fePostnupt1al Contract to Pay W1fe an Allow
ance.The plaintiff and defendant, who were husband and wife, had been
living apart for several years by mutual consent. The defendant promised
to pay his wife a monthly allowance until such time as they should agree
to live together. The wife brings suit for two unpaid installments. Held,
that the contract was valid and not contrary to public policy. Vanderburgh
v. Vanderburgh (Minn. 1921), 18o N. W. 99o.
At common law husband and wife were considered as one person. 1
Bl. Com. 442. And contracts between husband and wife were void. 2
Kent, Com. 129; Farwell v. Johnson, 34 Mich. 342. In most states statutes
have given the wife unlimited capacity to contract, and under such statutes
contracts between husband and wife are binding. Winter v. Winter, 191 N.
Y. 162; Cole v. Cole, 231 Mo, 236. However, the law looks with disfavor
upon contracts tending to interfere with the continuance of the marriage
relation ; and contracts whereby the husband agrees to contribute to the
support of the wife are invalid if the consideration or a part thereof is an
agreement to continue the separate life. Hill v. Hill, 74 N. H. 288. But if
the separation already exists at the time of entering into the contract and
659
is not induced or encouraged by it, the husband's agreement to pay the wife
a stipulated allowance has been held binding. Pcttit v. Pettit, 1o7 N. Y. 677.
In the principal case, smce the parties were living apart and the contract
by its terms looked forward to a termination of the separation rather than
to its continuance, the decision seems to have been correct.
Husband and W1feWW, May Recover from Husbano for Infect1on
w1th Venerea!, D1sease.Plaintiff's husband, having contracted a venereal
disease, communicated it to her. In an action for damages, held, plaintiff
may recover. Crowell v. Crowell (N. C, 192o), 1o5 S. E 2o6.
The case represents a further addition to the growing list of authorities
which allow a wife recovery from her husband for personal injuries inflicted
by him. Furthermore, it is the first case in which infection with venereal
disease has been the tort sued upon. The common law, because of the ficti
tious merger of the wife's existence into the husband's, denied her any right
of action against him. The Married Women's Acts do not expressly allow
it, but, with some variations, provide that the wife may sue or be sued sep
arately for wrongs done to or by her as though she were unmarried. Courts
which refuse the wife an action argue that these statutes, being in deroga
tion of the common law, must be strictly construed, and therefore the
words "sue' separately as though unmarried" must be construed as effecting
no more than a procedural change by permitting her to enforce her common
law rights without joining her husband. Consequently, they do not add to
her rights by giving her an action which she did not possess at common law.
Thompson v. Thompson, 218 U. S. 611 (noted in 9 M1ch. L. Rev. 44o)
decided by a divided court in 191o, is a recent leading case adopting this
construction. Justices Harlan, Holmes and Hughes were the dissenters,
saying "the effect [of such a construction is] to defeat the clearly expressed
will of the legislature by a construction of its words that cannot be recon
ciled with their ordinary meaning." This dissenting opinion was crystallized
in 1914 in the decision of Brown v. Brown, 88 Conn. 42 (noted in 12 M1ch.
L. Rev. 7oo), in which the Connecticut court blazed the trail by allowing the
wife to recover from her husband for assault and battery. The court rec
ognized the Married Women's Act was intended to work a real change in
the marriage status by allowing the wife to retain after marriage her sepa
rate legal existence and pre-nuptial legal rights, and consequently to recover
damages for injuries tortiously inflicted upon her, whether the defendant
was a stranger or her husband. This seems to be a reasonable construction
of the language of the statutes and at the same time it reaches a result in
harmony with the modern social order. The next case allowing recovery
was Fiedler v. Fiedler, 42 Okla. 124 (1915). However, the court was helped
to its decision by the unusual wording of the Oklahoma statute, which pro
vides that "women shall retain the same legal existence and legal person
ality after marriage as before." Okla. Rev. Laws, 191o, Sec. 3363. But in
Gilman v. Gilmon, 78 N. H. 4 (1916), the court construed a statute of the
usual form to allow the action. In Fitspatrick v. Owens, 124 Ark. 167 (1916),
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the court allowed recovery by the wife's administrator for her wrongful
death at the hands of her husband, but considerable reliance was placed upon
the wording of the Arkansas statute, which, in addition to giving the wife
the right "to sue and be sued," provided that she should "enjoy all rights
and be subjected to all the laws of the state as though she were a femmt
sole." Acts of Arkansas, 1915: Act to Remove Disabilities of Married
Women, Sec. 1. The court thought that even though the "sue and be sued"
clause might, by strict construction, effect only a procedural change, yet the
additional phrase removed the common law restriction upon the wife's rights,
conferred the right to sue her husband in tort, and consequently gave her
administrator the same right. Johnson v. Johnson (Ala.). 77 South. 315
(1917), and Prosser v. Prosser (S. C), 1o2 S. E. "87 (192o), were, however,
decided squarely upon what misllt be called the modern social interpretation
of the usual form of Married Women's Acts. The principal case is the
latest of the series, and it, too, cannot be explained by any special wording
of the statute. The rapidity with which these decisions are being handed
down is a fair indication that in a few years the time-honored disability of
the wife to sue her husband for personal injuries will be ancient history.
Intox1cat1ng LiquorsLegal Possess1on under Proh1b1tory Statute.
The defendant, who accepted a friend's invitation to take a drink of intox
icating liquor, was indicted for having liquor in his possession, under a
statute providing that "It shall be unlawful for any person * * * to have in
his possession any intoxicating liquor; * * * and such possession and proof
thereof shall be prima facie evidence that said liquor was so held and kept
for the purpose of unlawful sale or dlsposition." The trial court charged
as follows : "The word 'possession' has a well-defined meaning, and it is
this: I have in my possession a spectacle case; if I pick up a glass contain
ing whisky I have in my possession whisky." It was held that this charge
was erroneous, since the legislative intent, as collected from the context of
the entire statute, was to prohibit possession for the purpose of unlawful
sale or distribution. Slate v. Jones (Wash., 1921), 194 Pac. 585.
"Possession" has been defined as that condition of facts under which
one can exercise his power over a corporeal thing at his pleasure, to the
exclusion of all o1ller persons. Rice v. Frayser, 24 Fed. 46o. The conception
of the Civilians was that the animus domini, or intent to deal with the thing
as owner, was in general necessary to turn a mere physical detention into
juridical possession. S.w1gny, Jus Possfss1onis, bk. II, 21. While the
common law likewise includes intent as an element of possession, its require
ments are not so comprehensive as those of the Reman law. It is sufficient
under the common law that there be an intent to exclude all other persons,
and it is not necessary that there should be an assumption of the role of
absolute owner. Vide the case of a tenant for years, or that of one having
a possessory lien. See Holmes, Common Law, p. 22o. Thus, it has been
quite properly said that "Possession docs not necessarily depend on title. * * *
Title i? concerned with the internal connection of the owner with his prop
66 1
erty. * * * It is not the actual dominion but the right to dominion. * * *

Possession, on the other hand, is an external characteristic of property. * * *
Possession may be transferred where title is not. * * * Possession may be
termed control with intention to exelude." Note on Regina v. Ashwell. 16
Cox C. C. 1, in 7 Col. L. Rev. 395. It would seem that in a certain class of
cases possession might exist without the intent to exclude all other persons;
in fact, without any intent. Such cases are those where chattels are lost
upon the land of one person and taken by another before the owner of the
land even has any knowledge of their existence. Regina v. Rowe, C. C. 93;
Kincaid v. Eaton, 98 Mass. 139. In such instances the only discoverable
intent with regard to the chattels must be implied from the larger intent to
exclude the public from the land, and hence from everything upon it. On
the other hand, the classification of the servant's detention of his master's
goods as custody rather than possession would seem to deny the designation
of possession to a state of facts includmg both control and an intention to
exclude. And it would be a useless refinement to attempt to show that it
were otherwise. This exception, however, is explicable upon historical
grounds. When the servant was a slave and had no standing before the law,
this fact, as well as the master's actual power over him, conduced to the
idea that the custody of the slave was in reality the possession of the master.
Disregarding, however, a few such apparent exceptions, it can be said thut
the common law principle is that a physical detention coupled with an intent
to exclude all other persons is sufficient to constitute possession. At first
blush, it may seem that the decision in the principal case has injected an
additional element into the common law definition. But such is not the case,
although of course it would have been competent for the legislature 1o give
the term "possession" any meaning which it saw fit, and the court would
have been bound to apply it in that sense. What the statute does, however,
is simply to make it unlawful to have possession of intoxicating liquor under
such circumstances as would tend to facilitate sale and distribution thereof.
Such being the clear intention of the legislature, as gathered from the con
text of the entire act, the court was bound to effectuate it; and in refusing
to hold unlawful possession under any other circumstances than those indi
cated, its decision is unimpeachable. For a similar statutory interpretation,
see People ex rel. Darling v. Warden of Tombs Prison, 134 N. Y. Supp. 335.
See also Ford v. State (Ind., 1921), 129 N. E. 625, where defendant had in
his possession whisky owned by him in common with another. This was
held a violation of a statute making it unlawful to keep intoxicating liquor
with intent to furnish or otherwise dispose of it.
JuryExcus1ng Juror does not Ent1tle Defendant to another Per
emptory Challenge.Appellant was convicted of the crime of statutory rape.
After the jury had been passed for cause and appellant had exercised four
peremptory challenges, the court excused one of the jurors on account of
sickness. Appellant objected to this juror being excused unless the court
should grant him an additional peremptory challenge, claiming that he did
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MICHIGAN LAW REVIEW
pot intend to challenge this particular juror. The court refused. On appeal,
it was insisted that this proceeding in effect deprived him of one peremptory
challenge. Held, that the trial court properly refused to allow an additional
challenge. State v. Pettit (Idaho, 192o), 193 Pac. 1o15.
This case adds one more to the list of those decisions repudiating the
doctrine laid down in People v. Stewart, 64 Cal. 6o; and followed in People
v. Brady, 72 Cal. 49o; People .v. Wong Ark, 96 Cal. 125; People v. Zeiler,
135 Cal. 462, and People v. Weber, 149 Cal. 325. The statutory provision
construed in the Stewart case was identical with that in the instant case,
and provides that when a juror was discharged a new juror might be sworn
and the trial begin anew, or the jury might be discharged and a new jury
impaneled. It was held there that the statute allowed additional peremptory
challenges. But that case was not well considered. The court assumed
that a trial beginning anew means the impaneling of an entirely new jury.
Such a construction makes the section of the Code as a whole incongruous,
for it places the two alternative provisions on the same plane and gives to
each the same scope and meaning. The effect would be to give the accused
the election to discharge the whole jury or not, as he saw fit, whereas the
Code expressly placed this election with the court. Judged by all the wellrecognized rules of construction, the legislature certainly did not intend
both alternatives to mean the same thing. The word "trial" in its restricted
sense includes the investigation of facts only. Jenks v. State, 39 Ind. 9. The
decision of the Stewart case was carefully reviewed in State v. Hadedahle.
2 N. D. 521, and its unsoundness conclusively pointed out. The North Dakota
case was followed in State v. De Wecse, 51 Utah 515, and in State v. Carmouche, 141 La. 325. Even the later California decisions, while still adhering
to the doctrine laid down in the Stewart case, intimate that if it were now
a question of first impression they would adopt a different construction. The
number of peremptory challenges to which a party is entitled is solely a
matter of procedure in which a party has no vested right. The legislature,
therefore, may increase or diminish the number at will. Hopt v. Utah, 11o
U. S. 574. If, therefore, the statute allows no extra challenges in such situa
tions as that in the instant case it cannot be successfully contended that the
right to additional challenges exists. State v. De Weese, supra. It is sub
mitted that the defendant in any case could be in no worse position, so far
as his peremptory challenges were concerned, when the new juror was sworn
on his voir dire than he would have been if the juror had not been discharged
and he had exhausted all his challenges before the last juror was called into
the box.
JuryWomen as JurorsWoman's Suffrage Amendment.Defendant,
who was convicted on a charge of larceny by a jury of eleven men and one
woman, had on the trial first exhausted his peremptory challenges and then
challenged the woman juror for cause on the ground that a woman was
prohibited from sitting as a juror by the state constitution, in which refer
ence to a jury of "men" was made. Held, that the woman in question was
663
a properly qualified juror under the constitution and laws of Michigan.

People v. Barlts (Mich., 192o), 18o N. W. 423.
The court reached this conclusion, largely, on the basis of the .general
principle of constitutional construction that a constitution should be con
strued, if its language is appropriate, so that it will accomplish the purpose
the people intended it to accomplish. Here the purpose of the amendment
was to do away with the distinction between men and women as to being
electors. The court concluded that by being thus made an elector a woman
was placed in a class which made her eligible for jury duty under the Mich
igan statute providing that jurors should be selected from among persons
having the qualifications of electors. In Parus v. Dist. Court, etc.. 42 Nev.
229, under a similar constitutional amendment and statute, the court reached
a like conclusion in regard to grand jury service. For a contrary view, see
the dissenting opinion in that case and the approving comment thereon in 17
M1ch. L. Rev. 271. See also the older case of McKinney v State, 3 Wyo.
719. In the recent case of In re Grilli, 179 N. Y. S. 795, an inferior New
York court decided that the woman's suffrage amendment in that state did
not make women eligible as jurors, since by the statute in force there jury
service was dependent on certain age and property qualifications and was not
incidental to and a part of suffrage. Perhaps, too, this case might be dis
tinguished from the principal case in that the New York statute expressly
provides that a juror shall be "a male citizen," while the Michigan statute
merely provides that jurors are to be chosen from among properly qualified
electors. In all jurisdictions, however, it seems to be accepted as -law that
as long as trial by jury as known at common law shall be secured to all and
shall remain inviolate, the legislature may fix the qualifications of jurors,
even though they make the qualifications different from what they were at
common law. So in Ex parte Eben Mana, 178 Cal. 213, a California statute
authorizing women jurors was held valid.
Master and ServantDuty to A1d A1l1ng or Injured Employee.It
was alleged that the plaintiff was an employee of the defendant; that while
he was working in the latter's gravel pit he was overcome by the heat and
rendered unable to care for himself, and that defendant thereupon placed
him in a wagon box, where he was even more exposed to the heat, and left
him there unattended for four hours, whereby he was made worse, suffered
permanent injury, etc. On demurrer, held, the declaration stated a cause of
action. Carey v. Davis (Iowa, 1921), 18o N. W. 889.
The liability was not placed upon any fault of defendant in causing
plaintiff's sunstroke. Ordinarily, a mere stranger is under no legal. duty to
be a good Samaritan. He can "pass by on the other side" and let the injured
man die, without legal liability. Union Pacific R. Co. v. Cappier, 66 Kan. 649;
Griswold v. B. & M. Ry. Co., 183 Mass. 434. There are statements to the
contrary in Whitesides v. Southern Ry. Co., 128 N. C. 229, but the case is
unsatisfactory as authority. It is stated as the general rule that, aside from
special contract, an employer is under no legal duty to furnish medical aid
664
MICHIGAN LAW REVIEW
to injured employees where he is not responsible for the injury, 5 Laratt,

Master and Servant, 6179, and cases there cited; nor to rescue employees
from imminent peril. Allen v. Hixson, 111 Ga. 46o. But in several wellconsidered cases of recent date it is very clearly stated that where an
employee becomes incapacitated to help himself by reason of sickness, injury,
etc., although not through the fault of the employer, the latter is under
duty to make all reasonable effort to prevent loss of life or great injury.
Hunicke v. Meramac Quarry Co., 212 S. W. 345 (Mo., 1919) ; Bessemer
Land and Improvement Co. v. Campbell. 121 Ala. 5o; Troutman's Adm. v.
L. & N. Ry. Co., 179 Ky. 145; Ohio & Mississippi R. Co. v. Early, 141 Ind.
73. With this doctrine the instant case is in accord. However, in all of
these cases cited the business involved was a hazardous one, and in some
of them the doctrine is expressly limited to such business. In this aspect
the principal case is an extension upon the doctrine. If so, it would seem a
justifiable extension. With an employee beyond self-help and in danger of
death or great permanent injury, with an employer peculiarly able to give
the necessary aid, it is surely not a grievous burden to require him to make
reasonable use of the means at hand to save the life or prevent the perma
nent injury. The doctrine should be limited to emergencies. There is, how
ever, another possibility in the case. Where one who is under no duty to
give aid undertakes to do so, his position is changed and he is bound to use
reasonable care not to aggravate the injury instead of helping it. Depue v.
Plateau, 1oo Minn. 299; Ry. Co. v. Marrs, 119 Ky. 954; Northern Cent. Ry.
Co. v. State, 29 Md. 42o; Dyche v. Ry. Co., 79 Miss. 361 ; Gates v. Chesapeake
& Ohio R. Co., 185 Ky. 24. See, however, Union Pacific R. Co. v. Cappier
and Griswold v. Ry. Co., supra. The defendant in the instant case, having
taken charge of the plaintiff, was bound to use reasonable care not to
increase the danger. As the court expresses its approval of this doctrine as
well as of that noted above, and does not state upon which it rests its
decision, neither part of the case can be taken as dictum.
Master and ServantIllegal Employment of a M1nor Negl1cence
Per Sb.Plaintiff, a boy less than fourteen years of age, was employed by
defendant to drive a delivery wagon, in violation of the Child Labor Law.
In the course of his employment he either fell or was thrown from the
wagon and was injured. Held, that employment of a minor in violation of
statute constitutes negligence per se, and if injury to such child proximately
results from the employment a right of action in its favor arises. Terry
Dairy Co. v. Nalley (Ark., 192o), 225 S. W. 887.
The conflicting minority view is that the unlawful employment is only
evidence of negligence to be considered by the jury with other facts tending
to show negligence. Stehle v. Jaeger Automatic Machine Co., 22o Pa. 617.
Berdos v. Tremont and Suffolk Mills, 2o9 Mass. 489. The prevailing view
that such illegal employment is negligence per se in an action by the child
for injuries received in the course of the employment seems to rest on the
sound legal reasoning that the violation of a duty created by a statute is the
665
same as a violation of a duty created by a rule of the common law. And

if in either case such violation results in injury to another, the wrongdoer
is liable to him as a matter of law. Lee v. Sterling Silk Mfg. Co., 93 N. Y.
Supp. 56o. The fact that the law may impose a penally makes no difference
unless the penalty be expressly given to the party injured in satisfaction of
such injury. Klatt v. The N. C. Foster Lumber Co., 97 Wis. 641. In deter
mining when such employment shall be regarded as the proximate cause of
the injury, and therefore actionable negl1gence, the courts are often very
liberal to the child. For example, in Iron and Wire Co. v. Green, 1o8 Tenn.
161, the company was held liable for injuries sustained by a twelve-year-old
boy who had left the building where they had set him to work and was
injured while playing with some panels of iron fence on the premises, on
the ground that he would not have been on the premises had he not been
employed by the company. The employer cannot contend that such injury
was not the proximate cause on the ground that the injury was not fore
seeable, because the statute itself indicates that such children are unfit by
reason of their indiscretion to be so employed. E. P. iircckenridge Co. v.
Reagan, 22 Ohio Cir. Ct. R. 71. The same question arises under the Work
men's Compensation Acts, where the majority opinion holds, as here, that
the employer's failure to perform his statutory duties for his employees'
safety is negligence per se. Paul Mnfg. Co. v. Racine, 43 Ind. App. 6o5.
Negl1gencePedestr1an Cross1ng Street Ra1lway TrackError or
JudgmentContr1butory Negl1gence.The plaintiff, before starting to cross
a street, saw a car more than a block away rapidly approaching, and when
he had crossed the first track saw that the car was approximately thirty feet
away, but thinking that he could get across without being struck proceeded
without increasing his speed, and was struck. Held, he was guilty of con
tributory negligence as a matter of law. McGuire v. New York Rys. Co.
(N. Y.. 192o), 128 N. E. 9o5.
A pedestrian is bound to make reasonable use of his faculties before
crossing a street railway track, in order to ascertain the nearness of
approaching cars. That is, the so-called "look and listen" rule applies to
street railways as well as to steam railways. Hooks v. Huntstrille Ry., Light
& Power Co., 147 Ala. 7oo; Doherty v. Detroit Citizens' St. Ry. Co., 118
Mich. 2o9; Riska v. Union Depot Ry. Co., 18o Mo. 168; Kappus v. Metro
politan St. Ry. Co., 81 N. Y. S. 442; Harpham v. Northern Ohio Traction
Co., 26 Oh. C. C. R. 253 ; Sullivan v. Consolidated Traction Co., 198 Pa. St.
187; Stafford v. Chippewa Vol. Elcc. Ry. Co., 11o Wis. 331. But see contra:
Los Angeles Traction Co. v. Com1cally, 136 Fed. 1o4; Marden v. Portsmouth,
K. & Y. St. Ry. Co., 1oo Me. 41 ; Roberts v. Spokane St. Ry. Co., 23 Wash.
325. See also 19 M1ch. L. Rev. 452. In addition to looking and listening,
the pedestrian must exercise reasonable care for his safety in other respects.
Thus, he may not recover for an injury sustained by carelessly stepping in
front of an oncoming car which is close upon him when he enters on the
track. IVebster v. New Orleans, &c., Ry. Co., 51 La. An. 299; Hamilton v.
666
MICHIGAN LAW REVIEW
Third Ave. Ry. Co., 26 N. Y. S. 754; Watkins v. Union Traction Co., 194
Pa. St. 564. But a mere error of judgment as to the distance or speed of
the car, such as an ordinarily prudent person might make, will not neces
sarily preclude a recovery. Lang v. Houston, &c., Ry. Co., 75 Hun. 151.
Contra, see Sutherland v. Cleveland, Etc., Ry. Co., 148 Ind. 3o8. (But this
was the case of a steam train, which could not be stopped so readily as an
electric car. Upon this difference the case is probably distinguishable.)
Obviously, where the case is one of error of judgment, the question is for
the jury. 2 Thompson, Negl1gence [2nd ed.], 1452. But it does not nec
essarily follow that the court should properly have left the question to the
jury in the principal case. As in every instance of a fact question being
taken from the jury, the query is whether reasonable men could arrive at
different conclusions on the evidence adduced. So the difference between
a mere error of judgment and an act of plain rashness and folly is one of
degree rather than of kind. On authority the court was certainly justified
in taking the question from the jury by Hamilton v. Third Ave. Ry. Co.,
supra, where the car was going but ten miles an hour and was forty feet
away, and it was, nevertheless, held contributory negligence per se for the
plaintiff to attempt to cross. The case of Petri v. Third Ave. Ry. Co., 63 N.
Y. S. 315, would carry the court even farther than it was necessary to go in
this instance, but it seems that that case is not relied upon as law even in
New York. Inasmuch as the "scintilla rule" prevails in New York, it is at
least plausible that one of the bases of the dissent in the principal case, either
conscious or otherwise, is an aversion, engendered of that rule, to taking
any fact question from the jury if there is any relevant evidence on the point.
PaymentAcceptance of Check as PaymentP rendered professional
services for D for which D gave a check. P sued D for services rendered
and D pleaded payment. Held, mere receipt of check subsequently dishon
ored is not effective as payment. Feinberg v. Levine (Mass., 1921), 129 N.
E. 393By the great weight of authority, in the absence of special circumstances
showing an actual intent the acceptance of a check will not be treated as
payment. Nat'l Bank of Commerce v. Chicago Ry., 44 Minn. 224, 9 L. R. A.
263; Born v. First Nat. Bank, 123 Ind. 78, 7 L. R. A. 442. Where an oppo
site view has been adopted (Mehlberg v. Tisher, 24 Wis. 6o7), it has usually
been overruled by later cases. M'illoiu Lumber Co. v. Luger Furniture Co.,
1o2 Wis. 636; Gallagher v. Ruffing, 118 Wis. 284. Even under the majority
view the debt is suspended until the check is paid or dishonored. Phoenix
Ins. Co. v. Allen, 11 Mich. 5o1. And under either view the rule is merely
one of presumption which must yield to the actual intent of the parties. Duncan v. Kimball, 3 Wall (U. S.) 37Quo WarrantoGovernor May Sue Only 1n General Publ1c Inter
ests.Under a Mississippi statute providing that the governor "may bring
any proper suit affecting the general public interests," it was held that the
667
power granted contemplated only suits affecting the general public welfare
of the state as distinguished from local public interests, and that, therefore,
the governor could not bring quo warranto proceedings to oust municipal
officers. Temple et al. v. State ex rel. Russell, Governor (Miss., 192o), 86
So. 58o.
The principal question involved in the instant case is the scope of the
phrase "general public interests." The majority opinion is based on the
theory that the interests of the state and the interests of a municipality
within that state are separate and distinct. It is submitted that such a dis
tinction is here unreasonably strict and narrow. As the dissenting opinion
points out, the municipality is but part of the state, and what affects the
smaller unit certainly affects the larger. A local unit is a creature of the
state, made for the specific purpose of exercising within a limited sphere the
powers of the state. It is the representative of the state and a portion of
its governmental power. United States v. Railway Co., 17 Wall. 329, 21 L.
Ed. 5o7; Philadelphia v. Fox, 64 Pa. 18o; Daniel v. Memphis, 11 Humph.
(Tenn.) 582. Municipalities are mere agencies, auxiliaries, or instrumentali
ties of the state. Words and Phrases (Second Series), Vol. 3, p. 473; 1
D1llon, Mun. Corps. [5th Ed.], Sec. 31. The administration of justice and
the preservation of the public peace within the municipalities concern the
State at large, although these powers are actually exercised within defined
limits. People v. Detroit, 28 Mich. 228, 15 Am. Rep. 2o2. Thus it seems in
the case at bar the "general public interests" were involved, and the gov
ernor should have been permitted to maintain the quo warranto proceedings.
SalesImpl1ed Warranty of the Pur1ty of Water.D, a municipal
corporation, provided the water supply to its inhabitants for domestic and
drinking purposes. The water contained typhoid germs and caused P and
his children to become ill with the disease. Held, in the absence of a show
ing of negligence, D was not liable. Elkus and Pound, JJ., dissenting. Canavan v. City of Mechanicsville (N. Y., 192o), 128 N. E. 885.
It has been generally held that a sale of food direct to the consumer
carries with it an implied warranty of its purity, regardless of whether the
seller had superior means of knowledge or whether the buyer relied on the
knowledge of the seller. Chapman v. Roggenkamp, 182 Ill. App. 117; Ward
v. Great Atlantic & Pacific Tea Co., 231 Mass. 9o; Rinaldi v. Mohican Co.,
225 N. Y. 7o. The majority of the court, however, refused to apply the
rule in the principal case on the ground that practical considerations make
inspection prohibitive. The cases where water companies have been held
liable have been based upon the existence of negligence. Hamilton v. Mad
ison Water Co., 11 Me. 157; Jones v. Water Co., 87 N. J. L. 1o6. In Green
v. Ashland Water Co., 1o1 Wis. 258, the court expressly refused to find an
implied warranty of the purity of water furnished by a quasi-public cor
poration, but it also announced doctrines opposed to implied warranties' of
any food. See Farnham on Waters and Watercourses, p. 828.
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MICHIGAN LAW REVIEW
SealA Mere Formal1ty.An Illinois statute required that the incor

porators seal as well as sign and acknowledge the statement of incorporation.
Defendants failed to comply with the statute as to seals. In quo warranto
proceedings to test the validity of the organization as a corporation, held
(one justice dissenting), as seals are no longer of importance the statutory
direction is not mandatory and the organization is a corporation de jure.
People v. Ford (Ill, 192o), 128 N. E. 749.
In a majority of the states the common law distinction between sealed
and unsealed instruments has been abolished or radically modified. Illinois
still retains many of the technical rules of the common law effect of a seal,
though as early as 1827 it had enacted that a "scrawl" should have the effect
of a seal. Rev. Laws, 1826-27, 32o. Under this statute the letters "L. S.,"
the word "seal," and a device alone without words showing its purpose
have been held sufficient. Jackson v. Security Life Ins. Co., 233 Ill. 161 ;
Homes v. Preslon, 2o Ill. 389. Other states have reached the same result
without statute. Lorah v. Nissley, 156 Pa. 329. Some courts have been
reluctant to forsake the old notion of the seal, even where by statute seal*
arc abolished. The rule that a seal imports consideration has been adhered
to under such circumstances. Considine v. Gallagher, 31 Wash. 669. Mich
igan, New York and several other states have declared by statute that a
seal upon a contract is only presumptive evidence of consideration. Illinois
has not abandoned this rule except as it has been modified by the Negotiable
Instruments Law of that state. Chicago Sash, Door & Blind Mfg. Co. v.
Havens, 195 Ill. 374. And in the following respects the common law rules
as to sealed instruments apply there : recital of consideration in a sealed
instrument is conclusive, III. Cent. Ins. Co. v. Wolf, 37 Ill. 354; a subse
quent executory parol agreement cannot be shown to vary a sealed contract,
Alschuler v. Schiff, 164 III. 298; neither is fraud a good defense in any action
at law on a sealed instrument, Johnson v. Printing Co., 263 Ill. 236. The
decision in the instant case is an encouraging indication of the attitude of
the present Illinois Supreme Court towards this useless formality. It can
hardly be disputed that, in the words of the prevailing opinion, "The solemnity
of the sealed instrument is purely Pickwickian and no longer represents an
idea." See 1 IIl. Law. Bull. 65; 51 Am. L. Rev. 369.
W1llsLatent Amb1gu1tyExtr1ns1c Ev1dence.Testator made a
bequest to trustees in trust for the New Bedford Home for Aged People.
There was no institution by this name, and the bequest was claimed by
both the New Bedford Home for Aged and the Association for the Relirf
of Aged Women of New Bedford. Held, extrinsic evidence of all the facts
and circumstances surrounding the testator and known to him was admis
sible for the purpose of showing which claimant was intended as legatee.
Kingman v. New Bedford Home for Aged, ct al. (Mass., 1921), 129 N. E. 449.
It was early said, and is even yet sometimes repeated, that the court
cannot go outside the four corners of a will in construing its language.
Wlgmore on Ev1dence, 247o, ct seq. But it is now generally held that
669
extrinsic evidence is admissible to determine whether a given writing is a

will; to determine the subjects and objects of bequests and devises; to show
surrounding facts and circumstances so as to put the court in the position
of the testator ; to explain latent ambiguities ; and to rebut a resulting trust.
See 17 M1ch. L. Rev. 179. Whenever there exists an uncertainty or ambiguity
as to the beneficiary, which cannot be made clear by a construction of the
will as a whole, recourse may be had to extrinsic evidence to identify the
devisee or legatee intended. Gilmer v. Stone, 12o U. S 586; Women's Union
Missionary Soc. v. Mead, 131 Ill. 361 ; Faulkner v. National Sailors' Home,
155 Mass. 458; Gilchrist v. Corliss, 155 Mich. 126; Hospital v. Royal Hos
pital, 9o L. T. (N. S.) 6o1. Thus, in a bequest to a charitable institution, if
the name used by the testator is not strictly applicable to any existing insti
tution, but partly fits two or more, extrinsic evidence is admissible to show
which was intended. Preachers' Aid Soc. v. Rich, 45 Me. 552; Wood v.
Hammond, 16 R. I. 98; Tillcy v. Ellis, 119 N. C. 233. But it has been held
that if the name used by the testator is more properly applicable to one
claimant than the other, so that the court can determine from the will which
was meant, then parol evidence will not be admissible. St. Luke's Home v.
Association for Indigent Females, 52 N. Y. 191 ; Tucker v. Seamen's Aid
Soc., 7 Met. 188. Although the rule is settled as above indicated, consider
able confusion exists among the cases in regard to the nature of the extrinsic
evidence which is admissible. Some courts admit any evidence which bears
upon any of the facts or circumstances surrounding the testator at the time
he made the will. Hall v. Stephens, 65 Mo. 67o; Laxvton v. Corleis, 127 N.
Y. 1oo; Women's Union Missionary Soc. v. Mead, supra; Bond's Appeal, 31
Conn. 183. Other courts seem to limit somewhat the scope of such evidence.
Cresson's Appeal, 3o Pa. St. 437 (name of institution popularly used) ; But
ton v. American Tract Soc., 23 Vt. 336 (relations existing between testator
and claimant) ; Re Wolverton Mortgaged Estates, L. R. 7 Ch. Div. 197 (tes
tator's knowledge) ; South Newmarket Methodist Seminary v. Peaslee, 15
N. H. 317 (declarations of testator). For a review of the English authori
ties in point with the principal case see 53 Sol1c1tor's Jour., 211. See also
47 L. R. A. (N. S.) 514. It seems that the courts are more liberal where
the mistake is in the name of the beneficiary than where it is in the descrip
tion of the subject-matter of the gift; and most liberal where the bequest
or devise is to a charity.
Workmen's Compensat1onProvoked Assault ey Foreman not an
Injury Ar1s1ng Out of Employment.A factory oiler, upon being accused
of using too much oil, called his foreman a liar, whereupon the foreman
struck him. Held (two justices dissenting), that this was not an injury
arising out of employment. Knocks v. Metal Package Corporation et al.
(Nov., 192o), 185 N. Y. S. 3o9While differing in special applications, all the cases agree that an injury
arising from acts which the parties must have contemplated to be necessary
from the character of the work and the circumstances surrounding it is an
67o
MICHIGAN LAW REVIEW
injury resulting from and arising out of the employment. See 14 M1ck. L.
Rev. 525, and cases therein cited. See also 12 M1ch. L. Rev. 687; 19 M1ch.
L. Rev. 232, 458. In Matter of McNicol, 215 Mass. 497, it was held that
where to the rational mind there is a causal connection between the condi
tions under which the work is required to be performed and the resulting
injury, so that it could be said to have been contemplated by a reasonable
person familiar with the whole situation, then it arises out of the employ
ment. There must be a causal connection. This case has been quoted
approvingly in many cases. See Hopkins v. Michigan Sugar Co., 184 Mich.
87 ; In re Sanderson's Case, 224 Mass. 558 ; Ohio Bid. Safety Vault Co. v.
Industrial Board, 227 Ill. 96; Hulley v. Moosbrugger, 88 N. J. L. 161; Mann
v. Glastonbury Knitting Co., 9o Conn. 116. In cases of horseplay or sportiveness injuries arising therefrom have generally been held to be outside the scope
of the employment. Matter of De Fillippis v. Falkenberg, 155 N. Y. Supp.
761, and cases therein cited. See also 19 M1ch. L. Rev. 577. However, in
Leonbruno v. Champlain Silk Mills (N. Y., 192o), 128 N. E. 711 (noted in
19 M1ch. L. Rev. 456), compensation was allowed where an employee was
injured in the eye by an apple thrown playfully by a fellow employee. It is
not doubted that when a servant, in the course of employment, is assaulted
by another he may sometimes be entitled to compensation. Griffin v. Roberson & Son, 162 N. Y. S. 313; Matter of Carbone v. Loft, decided without
opinion in 159 N. Y. S. 11o4. The theory is that the servant was protecting
his master's interest. Also, where an employer is carelessly served by two
men there may be an altercation and a resulting act arising out the employ
ment. Matter of Hertz v. Ruppert, 218 N. Y. 148. Or where a workman,
who is surprised by a physical assault or an insult, reacts and strikes another,
compensation may be allowed. Matter of Verschleiser v. Stearn & Co., 229
N. Y. 192. The court in the instant case likened the situation there to a
case of horseplay or sportiveness, maintaining that while the emotions
prompting the acts are different, the purpose in both cases is the same
namely, to gratify a personal desire and not to serve the master. While
this presents a very strong case, and is probably sustained by the weight of
authority at the present time, it might be urged with a great degree of
plausibility that this was an injury arising out of the employment. Personal
relations between employer and employee are necessary and incidental to
the business conducted. Personal altercations between employees and fore
men are so natural and common that they are practically inevitable. Can
it not be said that to the rational mind such disputes are within the con
templation of the parties, that there is a causal connection between the two?
It is difficult to see why such disputes are not natural incidents of the work.
BOOK REVIEWS
The Equal1ty of States 1n Internat1onal Law. By Edwin De Witt Dick
inson. (Cambridge: Harvard University Press, 192o. Harvard Studies
in Jurisprudence, Vol. III.) Pp. ix, 424.
The doctrine of equality has proved as alluring and deceptive in the
field of international as of municipal law. Until recently it has enjoyed
almost universal acceptance. By the early political philosophers it was
regarded as one of the immutable principles of the law of nature. To many
of our modern publicists it has likewise presented itself as the sole rational
basis upon which the legal relations of states can be properly adjusted. The
very indefiniteness of the conception has served to commend it to popular
favor. It seemed to voice the spirit of democracy in its vindication of the
rights of the weak as against the strong. In the smaller states, in particular,
the doctrine has been raised to the dignity of a religious creed; it has come
to be looked upon as the veritable ark of the covenant, upon which the
grasping hands of the more powerful states cannot be placed without endan
gering the peace of the world and even civilization itself.
On the other hand, it must be admitted that the publicists have often
been troubled by the strange elusiveness of this so-called fundamental prin
ciple. The doctrine seemed to evade, if not to defy, strict legal definition.
In certain quarters this characteristic has raised a suspicion as to the scien
tific value of the principle itself. Nevertheless, the major1ty of jurists con
tinued to accept it as an article of faith, even though they were sometimes
prone to express grave doubts as to its strict applicability in this wicked
and perverse world.
To statesmen of the more powerful nations the doctrine has proved to
be a veritable thorn in the flesh. They were generally prepared to recognize
it in legal theory, but they were more frequently found to repudiate it in
practice. The doctrine was, and is, manifestly incompatible with the facts
of international life. Inequality, and not equality, is the essential character
istic of the relations of states both inside and without the circle of nations.
The great powers have established an hegemony against which the smaller
states have protested in vain. The age-long struggle between law and poli
tics has been here transferred to the international sphere.
It has required no little courage on the part of the. author to tackle this
most perplexing question. Fortunately, Professor Dickinson is singularly
well equipped both in scholarship and judgment to undertake the task. His
study reveals a remarkable familiarity with the literature of international
law, both ancient and modern, together with a thorough understanding of
recent developments in diplomatic history and comparative government. The
result is one of the most scholarly monographs of recent years in the field
of international law.
672
MICHIGAN LAW REVIEW
This volume covers a wide range of subject-matter, including many

phases of legal history, rcchts philosophie, comparative government and prac
tical politics. On the historical side the author has traced the origin of the
principle of state equality back to the "applications to nations of theories of
natural law, the state of nature and natural equality." This conception, it
is interesting to learn, was not a part of the system of Grotius, but was the
product of the naturalistic philosophy of the seventeenth and eighteenth cen
turies. The doctrine was "subsequently reinforceable by theories of sov
ereignty," and thus became "one of the primary postulates of le droit des
gens thorique."
The theoretical phases of the subject involve an analysis of the divergent
interpretations of the phrase "equality of nations." A clear-cut distinction
is drawn between equality in the sense of equality before the law, or, as it is
often expressed, the equal protection of the laws, and equality in the sense of
an absolute equality of rights and possibly of obligations. The former of these
conceptions, as the author points out, is essential to the existence of any legal
system, whether municipal or international. Moreover, it is compatible "with
the grouping of states into classes and the attributing to the members of
each class of a status which is a measure of capacity for rights."
It is quite otherwise with the second conception of equality which ascribes
to all nations the possession and enjoyment of exactly the same rights and
privileges. This conception is a pure, juristic abstraction of naturalistic origin
and quite irreconcilable with the facts of present day international relations.
The theory is usually presented, however, in the modified form of an equality
not of rights but of capacity for rights. In this form, the doctrine repre
sents a democratic ideal which the nations ought ever to keep before them
in the development of the principles of international law.
Turning, then, to the more practical aspects of his subject, the author
proceeds to examine in detail some of the most important legal limitations
upon the equality of states. These limitations he classifies as either internal
or external, or as constitutional or international, in character; that is to say,
they may be imposed by the fundamental law of the state, or they may arise
out of a state's peculiar relations with other members of the international
community.
The chapter on the' nature of the internal limitations on state equality
is perhaps the least satisfactory in the whole work. The reciprocal relations
of constitutional and international law, it must be admitted, have never been
satisfactorily worked out. These relations vary not only from state to state
but also raise many knotty legal questions within the states themselves. For
example, the nature and range of the treaty-making power of the crown is
still a disputed question in the English constitution. It is little wonder, in
the circumstances, that Professor Dickinson has not succeeded in avoiding
all of the treacherous pitfalls which waylay the investigator. Two or three
of these difficulties may be briefly mentioned. Throughout this discussion
the author often seems to identify the legal capacity of the executive with
the power of the state itself. No clear distinction is drawn between the state
BOOK REVIEWS
673
and the government of the state. The body politic, it is true, can act only
through its duly constituted organs, so that for all practical purposes a con
stitutional limitation upon the capacity of the executive in respect to foreign
affairs does operate as a restriction upon the international competency of
the state. The distinction, nevertheless, should not be overlooked, since
many of these limitations are concerned with the constitutional principle of
the division of powers "rather than with the international contractual capacity
of the state itself.
Much more serious, however, is the author's tendency to read American
legal principles into the interpretation of foreign constitutions. The political
philosophy of John Marshall has taken hold upon him and has permeated
all his thinking. But the constitutions of many foreign states have not the
sacrosanct character of that of the United States. They are not the supreme
law of the land in the strict American sense; on the contrary, they partake
much more of the character of political than of legal instruments of govern
ment. This must needs be the case wherever the polit1cal organs of the
state, and not the judicial, arc 1mde the guardians and final interpreters of
the constitution. Many of the provisions, therefore, which seemingly impose
important limitations upon the capacity of the state ought properly to be
regarded in the light of political maxims rather than as true legal inhibitions.
In other words, they are intended for the guidance of the executive or legis
lative departments of the government and not for the judiciary. For example,
a member of the Swiss national assembly, it is safe to assert, would be
greatly astonished to learn that Article 29 of the constitution, providing for
the levying of low import duties upon certain articles, restricted the legal
power of the state to enter into commercial agreements with outside nations.
That the provision has not so worked out in practice is amply demonstrated
by the adoption of a higher and higher scale of protective duties.
It is somewhat surprising at first to find that certain conventional lim
itations upon the war- and treaty-making powers of the British Empire arc
incorporated into the discussion of the general question of the legal com
petency of states. That there is ample warrant for treating the conventions
of the British constitution as of equal value to the law of the constitution
may well be admitted, but the author ought certainly to have explained the
fundamental difference in character between the two, both from the interna
tional and constitutional standpoint. In the same connection, it may likewise
be proper to add that Canada was not the first, nor ;s it the only self-govern
ing colony to establish a department of external affairs whose authority
encroaches, in fact if not in theory, upon the legal unity and supremacy of
the English executive.
Even more surprising, however, is the author's failure to apply his real
istic methods of investigation to the consideration of the practical value of
many of these constitutional limitations in respect to foreign affairs. The
principle of historical criticism ought to be equally applicable to constitu
tional provisions as to political theories. For example, the constitutional
prohibition of the alienation of national territory is of singularly little value
674
MICHIGAN LAW REVIEW .
to a defeated nation, as Turkey can testify. In all such cases it is evident

that the right of conquest as recognized by international law overrules the
express inhibition of the constitution. In other words, a constitutional pro
vision regarding territorial integrity cannot be applied in the face of superio1
force. For all practical purposes, all such constitutional provisions have no
international validity and do not operate as limitations upon the inherent
power of the state to cede territory in case of necessity.
The chapter on the limitation of the political equality of states contains
much new and interesting material. The author brings out clearly the
essential distinction between the legal equality of states and their political
equality in respect to international organization, and finds little difficulty in
demonstrating the inapplicability of the principle of political equality to the
great deliberative conferences of our day. No legal fiction can possibly
place Hayti and Panama on an actual political equality with the United
States or the great European powers. To disregard the existing dispropor
tions in size, population and resources of the various states would violate
the fundamental principle of democracy itself by placing the direction oi
the world's affairs in the hands of an insignificant minority of its inhabitants.
As the author well states, "insistence upon the complete political equality
in the constituting and functioning of an international union, tribunal or
concert is simply another way of denying the possibility of effective inter
national organization."
The supplementary chapter on the equality of nations at the Paris Con
ference is disappointing. It has manifestly been added as an after-thought
in an attempt to bring the study up to date. It is, perhaps, too much to
expect the author to add to his erudition as a scholar the still greater gift
of prophesy, but the public had every reason to believe from the high quality
of the preceding chapters that the discussion would involve something more
than a repetitious resume of some of the chief provisions of the treaty.
Notwithstanding this anti-climax, the book stands forth as a distinct
landmark in the development of the principles of international law. There
have been more than enough general text-books on international law. The
need has long been manifest for a critical analysis of some of the so-called
fundamental principles of the subject. The war, fortunately, has swept away
many of the shams and fictions which have detracted from the true legal
character of international law. The time has now come to rebuild its prin
ciples upon the sure foundation of international facts. To this great under
taking Professor Dickinson has made a most important contribution. He
has attacked one of the most sacred of these international fictions and has
made out an irrefutable case for a reconstruction of both the theory and
practice of representation. The volume, in short, is a worthy addition to
the Harvard Studies in Jurisprudence. It is sincerely to be hoped that this
is only the first of a series of studies by the author in this general field.
University of Minnesota.
C. D. A1x1n.
MICHIGAN
LAW
Vol. XIX.
REVIEW
MAY, 192 1
No. 7
THE COURT OF INDUSTRIAL RELATIONS IN KANSAS.

MOST of the articles which have heretofore appeared in print
in reference to the new Court of Industrial Relations in Kan
sas have been taken up with such matters as the nationality of Alex
ander Howat, president of the Kansas district of the United Mine
Workers, the cost and frequency of strikes among miners, the ideals
of Governor Henry J. Allen and others responsible for the creation
of the new Court and the like. But little has found its way into
print in the way of an exact analysis of the jurisdiction, powers and
methods of procedure of this tribunal. Such an analysis is attempted
in this article.
ORIGIN OF COURT
On November 1, 1919, a nation wide strike of coal miners in the
bituminous coal fields began. Very soon thereafter in Kansas, the
state, through a receivership ordered by the Supreme Court, took
charge of the mines and attempted to operate them, with the assist
ance of a large force of volunteers, while National Guardsmen pre
served order in the small district affected. The next step was a
proclamation by the Governor on December 8, 1919, calling an extra
session of the Legislature to convene on January 5, 192o, for the
purpose of giving consideration to industrial relations. With but
very slight delay, the Legislature at this special session enacted the
measure creating the Court of Industrial Relations, which became a
part of the Kansas statute law on January 24, 192o.
PROVISIONS OF STATUTE
The act creating the Court of Industrial Relations is quite brief,
covering but eleven small pages in large type.
676
MICHIGAN LAW REVIEW
The first section creates the Court of Industrial Relations, to be

composed of three judges to be appointed by the Governor, with the
advice and consent of the Senate. The salary of each is fixed at
$5,o0o, the normal term of office at three years, one judge to retire
each year.
The second section confers upon the new Court all the powers of
the old Public Utilities Commission, which is abolished. It may be
added, however, that, at the regular session of the Legislature in
1921, these two bodies were divorced and the Public Utilities Com
mission re-created.
The third section of the original act declares the following in
dustries to be affected with a public interest and subject to the super
vision by the state, namely : The production, in any stage of the
process, of food products, or wearing apparel ; the production of
fuel for domestic, manufacturing or transportation purposes; the
transportation of any of the aforesaid articles; all public utilities
and common carriers ; together with all persons and corporations
engaged in such industries. The next section gives the Court "full
power, authority and jurisdiction to superjnse, direct and control the
operation" of the industries enumerated.
The fifth section gives the Court full power to
"adopt all reasonable and proper rules and regulations to
govern its proceedings, the service of process, to administer
oaths, and to regulate the mode and manner of all its inves
tigations, inspections and hearings : Provided, however, That
in the taking of testimony the rules of evidence, as recognized
by the supreme court of the state of Kansas in original pro
ceedings therein, shall be observed by said Court of Industrial
Relations."
The sixth section declares it
"to be necessary for the public peace, health, and general wel
fare of the people of this state that the industries, employ
ments, public utilities and common carriers herein specified
shall be operated with reasonable continuity and efficiency in
order that the people of this state may live in peace and se
curity, and be supplied with the necessaries of life. No per
son, firm, corporation, or association of persons shall in any
manner or to any extent, wilfully hinder, delay, limit or sus
INDUSTRIAL COURT IN KANSAS
677
pend such continuous and efficient operation for the purpose

of evading the purpose and intent of the provisions of this
act ; nor shall any person, firm, corporation, or association of
persons do any act or neglect or refuse to perform any duty
herein enjoined with the intent to hinder, delay, limit or sus
pend such continuous and efficient operation as aforesaid,
except under the terms and conditions provided by this act."
The seventh section provides that,
"if it shall appear to said Court of Industrial Relations that
said controversy may endanger the continuity or efficiency of
service of any of said industries, employments, public utilities
or common carriers, or affect the production of transporta
tion of the necessaries of life affected or produced by said
industries or employments, or produce industrial strife, dis
order or waste, or endanger the orderly operation of such
industries, employments, public utilities or common carriers,
and thereby endanger the public peace or threaten the public
health, full power, authority and jurisdiction are hereby
granted to said Court of Industrial Relations, upon its own
initiative, to summon all necessary parties before it and to in
vestigate said controversy, and to make such temporary find
ings and orders as may be necessary to preserve the public
peace and welfare and to preserve and protect the status of
the parties, property and public interests involved pending
said investigations, and to take evidence and to examine all
necessary records, and to investigate conditions surrounding
the workers, and to consider the wages paid to labor and the
return accruing to capital, and the rights and welfare of the
public, and all other matters affecting the conduct of said in
dustries, employments, public utilities or common carriers,
and to settle and adjust all such controversies by such find
ings and orders as provided in this act."
In such cases, proceedings may also be instituted by ten citizen
taxpayers in the community affected, or upon complaint by the At
torney-General.
Section eight reads :
"The Court of Industrial Relations shall order such
changes, if any, as are necessary to be made in and about the
678
MICHIGAN LAW REVIEW

conduct of said industry, employment, utility or common car
rier, in the matters of working and living conditions, hours of
labor, rules and practices, and a reasonable minimum wage,
or standard of wages, to conform to the findings of the court
in such matters, as provided in this act, and such orders shall
be served at the same time and in the same manner as pro
vided for the service of the court's findings in this act : Pro
vided, all such terms, conditions and wages shall be just and
reasonable and such as to enable such industries, employ
ments, utilities or common carriers to continue with reason
able efficiency to produce or transport their products or con
tinue their operations and thus to promote the general welfare. 99
Orders in this connection when made by the Court, "shall con

tinue for such reasonable time as may be fixed by said Court, or
until changed by agreement of the parties with the approval of the
Court." After sixty days, either party may apply to the Court for
the modification of such orders.
Section nine must be reproduced in full.
"It is hereby declared necessary for the promotion of the
general welfare that workers engaged in any of said indus
tries, employments, utilities or common carriers shall receive
at all times a fair wage and have healthful and moral sur
roundings while engaged in such labor; and that capital in
vested therein shall receive at all times a fair rate of return
to the owners thereof. The right of every person to make
his own choice of employment and to make and carry out fair,
just and reasonable contracts and agreements of employment,
is hereby recognized. If, during the continuance of any such
employment, the terms or conditions of any such contract or
agreement hereafter entered into, are by said court, in any
action or proceeding properly before it under the provisions
of this act, found to be unfair, unjust or unreasonable, said
Court of Industrial Relations may by proper order so modify
the terms and conditions thereof so that they will be and re
main fair, just and reasonable and all such orders shall be
enforced as in this act provided."
Section ten makes provision for service of notices of proceedings ;
679
section eleven for the employment of experts and other employees ;

section twelve provides a review of the Court's orders by the State
Supreme Court; section thirteen provides for interference by the
ordinary Courts with the orders of the Industrial Court only within
thirty days from the time of the service of such orders.
Section fourteen allows both incorporated and unincorporated
unions or associations of workers to appear before the Court as
"legal entities." If unincorporated, such association may appoint one
of its officers as its agent or trustee, "with authority to enter into
such collective bargains and to represent each and every of said in
dividuals in all matters relating thereto."
Section fifteen makes it unlawful to discriminate against any per
son who invokes the aid of the Court, or who assists the Court in
settling any controversy, while section sixteen, in brief, makes
"lock-outs," or shut-downs for the purpose of curtailing production
and boosting prices unlawful, though meritorious applications for
limiting or ceasing operations may be granted by the Court.
Section seventeen makes it unlawful to fail or refuse to perform
any act or duty enjoined by the act, and, while recognizing the right
of an individual workman to quit his employment, makes it "un
lawful for any such individual * * * to conspire with other per
sons," to strike, or for any individual to engage in "picketing."
Section eighteen provides punishment by a fine not to exceed
$1,ooo, or by imprisonment not to exceed one year in the county
jail, or both, for the ordinary mortal, while section nineteen raises
the maximum to $5,o0o fine and two years in the penitentiary for an
officer of a corporation or labor union or association, upon convic
tion in a court of competent jurisdiction of a willful violation of
the act.
Section twenty allows the Court to take over and operate any
essential industry when necessary for the public welfare, while sec
tion twenty-one allows labor controversies even in non-essential in
dustries to be referred for settlement to the Court. Section twentytwo makes provision for commissioners to take testimony. Section
twenty-four makes orders for wage increases or reductions retro
active to the commencement of the proceedings. Section twentyfour allows the Court, with the consent of the Governor, to make
investigations within the state or elsewhere into industrial problems.
The other provisions of the act are not of importance for our pur
MICHIGAN LAW REVIEW
68o
pose, with the possible exception of the provision in section twentyseven, which casts all expenses incident to the operation of the Court,
not on the parties litigant, but upon legislative appropriations.
governor allen's plan
In his message to the special session of the legislature, Governor
Allen stated :
"It seems to me that legislation is imperatively needed and
should be immediately enacted :
"1. Declaring the operation of the great industries affect
ing food, clothing, fuel and transportation to be impressed
with a public interest and subject to reasonable regulation by
the state.
"2. Creating a strong, dignified tribunal, vested with
power, authority and jurisdiction to hear and determine all
controversies which may arise and which threaten to hinder,
delay or suspend the operation of such industries.
"3. Declaring it to be the duty of all persons, firms, cor
porations and associations of persons engaged in such indus
tries to operate the same with reasonable continuity, in order
that the people of this state may be supplied at all times with
the necessaries of life.
"4. Providing that in case of controversy arising between
employers and employees or between different groups or
crafts of workers which may threaten the continuity or effi
ciency of such industries and thus the production or trans
portation of the necessaries of life, or which may produce an
industrial strife or endanger the peaceful operation of such
industries, it shall be the duty of said tribunal, on its own
initiative or on the complaint of either party, or on the com
plaint of the attorney-general, or on complaint of citizens, to
investigate and determine the controversy and to make an
order prescribing rules and regulations, hours of labor, work
ing conditions, and a reasonable minimum wage, which shall
thereafter be observed in the conduct of said industry until
such time as the parties may agree.
5.
Providing for the incorporation of unions or associa
681
tions of workers, recognizing the right of collective bargain

ing and giving full faith and credit to any and all contracts
made in pursuance of said right.
"6. Providing for a speedy determination of the validity
of any such order made by said tribunal in the supreme court
of this state without the delay which so often hampers the
administration of justice in ordinary cases.
"7. Declaring it unlawful for any person, firm, corpora
tion or association of persons to delay or suspend the produc
tion or transportation of the necessaries of life, except upon
application to and order of said tribunal.
"8. Declaring it unlawful for any person, firm, or cor
poration to discharge or discriminate against any employee
because of the participation of such employee in any proceed
ings before said tribunal.
"9. Making it unlawful for any person, firm, or corpora
tion engaged in said lines of industries to cease operations for
the purpose of limiting production, to affect prices or to avoid
any of the provisions of this act, but also providing a means
by which proper rules and regulations may be formulated by
said tribunal providing for the operation of such industries
as may be affected by changes in season, market conditions,
or other reasons or causes inherent in the nature of the
business.
"1o. Declaring it unlawful for any person, firm or cor
poration or for any association of persons to violate any
of the provisions of this act, or to conspire or confederate
with others to violate any provisions of this act, or to intimi
date any person, firm or corporation engaged in such indus
tries with the intent to hinder, delay or suspend the operation
of such industries and thus to hinder, delay, or suspend the
production or transportation of the necessaries of life.
"11. Providing penalties by fine or imprisonment, or both,
for persons, firms, or corporations or associations of persons
willfully violating the provisions of this act.
"12. Making provisions whereby any increase of wages
granted to labor by said tribunal shall take effect as of the
date of the beginning of the investigation.
MICHIGAN LAW REVl&tV
68a
"By means of such legislation I believe we will be able :

"1. To make strikes, lockouts, boycotts and blacklists un
necessary and impossible, by giving labor as weir as capital
an able and just tribunal in which to litigate all controversies.
"2. To insure to the people of this state, at all times, an
adequate supply of those products which are absolutely neces
sary to the sustaining of the life of civilized peoples.
"3. That by stabilizing production of these necessaries we
will also, to a great extent, stabilize the price to the producer
as well as the consumer.
"4. That we will insure to labor steadier employment, at a
fairer wage, under better working conditions.
"5. That we will prevent the colossal economic waste
which always attends industrial disturbances.
"6. That we will make the law respected, and discourage
and ultimately abolish intimidation and violence as a means
for the settlement of industrial disputes."
EFFECT OF ACT
One of the first questions which occurs to the lawyer, upon ex
amining the Act, naturally is, Is it constitutional ? This has not yet
been determined, except as to a few minor details which were upheld
by the Kansas Supreme Court. The decision in State v. Howat1 by
no means determines the constitutionality of those portions of the
act which are most significant. The court expressly declares, "It
would be utterly futile in a proceeding, the sole purpose of which is
to require obedience to a subpoena, to undertake to determine in
detail the effect and validity of the various provisions of the statute
attacked." It would be equally futile and inadvisable in the present
article to attempt to forecast the ultimate decision on these ques
tions which must certainly be passed upon, eventually, by the United
States Supreme Court. At all events, if the act is constitutional in
its entirety, it means that in the industries enumerated, at least, the
Court may be empowered to fix the hours of labor, minimum wage
even for adult males and set at naught any contracts made between
employer and employee on such matters, when, in the estimation of
the Court, such contracts become unfair, unjust or unreasonable,
1 1o7 Kansas, 423.
683
and this the Court may do, either of its own motion upon the com
plaint of the Attorney-General, or even of ten citizen taxpayers in
the community in which the industry is located. Moreover, in such
industries, strikes, lockouts and picketing may be made criminal.
This appears to be the first attempt of any State to fix a minimum
wage for adult males.2
Is the measure progressive or reactionary? At first glance, the
answer appears to be that it is both. In so far as it attempts to regu
late working conditions, hours of labor and wages by the will of a
tribunal instead of leaving the matter to the will of the employer, or
to be fought over by employer and employee, the act may be classed
as progressive, in the sense that it is in line with similar measures in
Australia, New Zealand and other communities considered "ad
vanced". But in so far as the act makes striking a crime, it may be
suggested that we are taken back at least to the English Combina
tions Act of 18oo, which made striking a crime and also attempted,
like the Kansas Act, to protect the workmen from concerted action
by employers and provided for the arbitration of disputes between
"masters and workmen".3 The fundamental notion of a settlement
of labor disputes by an impartial tribunal can hardly be deemed new
or novel. "Statutory provision for the settlement of labor disputes
by regular tribunals with power to enforce their awards has existed
ever since the middle of the Fourteenth century".* In other words,
before Columbus discovered America, the essential element in the
Kansas Act had come to light. Moreover, in the course of the nine
teenth century, the right of workmen to strike, at least for the pur
pose of obtaining a definite increase in wages, seemed to have become
established in practically every state in the Union, as well as in Eng
land. Hence, the Kansas Act appears to be a move in two opposite
directions. But why are strikes made criminal, and why are the men
compelled to submit to adjudication? Because of the public interest
at stake. It is in the frank recognition of the paramount importance
of what Governor Allen has referred to as the submerged nine-tenths
of society that the act parts company with earlier measures which
sought to bring master and workman together by squeezing still
9 1o Monthly Labor Rev1ew 8o8.
1 Stat. 4o George III, chapter 1o6.
' Palgrave, D1ct1onary of Pol1t1cal Economy, Vol. 3, page 481.
684
MICHIGAN LAW REVIEW
more the great bulk of society looked upon as outsiders, though

really the men who "paid the freight."
One phase of the new Act has caused much discussion, but need
be merely noted in passing. Should the members of the Industrial
Court be appointed by the Governor, or elected by the people? This
question is much the same as that in reference to the election or
appointment of the members of courts of general jurisdiction, heads
of governmental departments and the like and its discussion in this
article would take us too far adrift.
It is insisted by Governor Allen that the new Court is not a court
of arbitration, but a court of justice.9 So also, Professor William
R. Vance makes this distinction : "It will be noted that the function
of arbitration is to arrive at a compromise, supported so far as pos
sible by considerations of justice and reason, which dangerous an
tagonists can be induced to accept in preference to the losses and un
certainties of open conflict, while adjudication consists in the deter
mination by an impartial tribunal of issues presented in accordance
with established rules. A compromise award is a partial defeat for
both of the contestants, and satisfies neither. In fact, it is apt to be
determined according to the existing strength of the contestants,
while an adjudication is supposed to proceeed upon certain fixed
principles that take no account of the relative strength of the parties.
The contestant who refuses to abide by the award of arbitrators
merely breaks his contract and sets his judgment against that of the
arbitrators, while the party who refuses to submit to a judgment of
a Court is defying the state."*
If arbitration at its best is what Professor Vance says of it, no one
would wish to use it in the settlement of industrial disputes. If it
means that two dangerous antagonists are to confront each other
before three men who will be controlled in making their decision by
the strength of the antagonists, without regard to fixed principles,
and that, after all the expense incident to the hearing of evidence,
and possibly the resort to various tests to determine the relative
strength of the combatants, a compromise award which satisfies no
body is arrived at, the case of arbitration is indeed a sad one. But
is the difference between arbitration and adjudication so great
as this?
* Rev1ew of Rev1ews, Vol. 61, page 597.
8Yale Law Journal, Volume 3o, page 468.
685
"Arbitration at common law was but a judicial investigation out

of court."7 "An arbitration is a judicial proceeding, and the arbi
trators are bound to exercise a high degree of judicial impartiality.""
It is submitted that the one important distinction between arbitra
tion and adjudication lies in the fact that arbitrators are generally
selected by the parties themselves, aside from the odd member
chosen by the other arbitrators, while judges are generally selected
in some other manner. But even this distinction is open to ques
tion, when it is recalled that the judges in our ordinary courts are
sometimes selected by the litigants themselves.9 As to arbitration's
resulting in a compromise, unsatisfactory to either side, does not
the same thing happen every day in lawsuits ? And is there anything
to prevent arbitrators from deciding wholly for one side or the other?
As to the difference between an award and an adjudication it has
been suggested that a contestant who refuses to abide by an award
merely breaks a contract, while disobedience to a judgment is a
defiance of the state. This proposition also is of limited, rather than
universal application. In many jurisdictions, by statute, an award of
arbitrators is given the force of a verdict of a jury and judgment
may be entered upon it, without the necessity of suit.10 Moreover,
in many instances, the court of equity will enforce an award of
arbitrators by a decree of specific performance, supported by the
usual penalties.11 On the other hand, the defiance of the state in the
case of failure to comply with many a judgment, as for example, a
simple money judgment, is but slight.
Has an adjudication the advantage of arbitration in that the latter
is apt to turn on the strength of the contestants? If we dismiss from
our consideration the kind of might which results from right, and
look upon strength and might as matters of mere force, it is hardly
necessary to point out that an adjudication based upon the strength
of the parties is an unadulterated miscarriage of justice, as for
example, when the jury's verdict is rendered through fear of a mob
' People v. Board of Supervisors, 15 N. Y. Supp. 75o.
* Produce Co. v. Norwich Fire Ins. Co., 91 Minn. 212.
* See Alabama & F. R. Co. v. Burket, 42 Ala. 83 ; Henderson v. Pope, 39
Ga. 361 ; Salter v. Salter, 69 Ky. 624; Castles v. Burney, 34 Tex. 47o.
" See Anderson v. Beel>e, 22 Kansas 768 ; Morville v. American Tract
Society, 123 Mass. 129; Willesford v. Watson, J_. R. 8 Ch. 473.
"Guild v. Santa Fe R. Co., 57 Kan. 70; Jones v. Boston Mill Co., 4 Pick.
(Mass.) 5o7.
686
MICHIGAN LAW REVIEW
known to be right outside of the court house. But is not the same
thing equally true in the case of arbitration? Arbitration which
admittedly takes into account the strength of the contestants would
be but a mockery of justice, merely a form of legalized tyranny.
The last point in reference to the distinction between arbitration
and adjudication is perhaps of greatest significance, namely, that an
adjudication is based on fixed principles or established rules. It is
undoubtedly the case that where arbitration boards are merely
ephemeral, their findings will have no more element of permanency
or precedent than verdicts of juries. But whenever a permanent
board, shop committee, impartial chairman or other tribunal becomes
established in any field, it is submitted that precedents which will be
followed and rules which will be acquiesced in, must in the very
nature of things arise. Hence, it is not surprising but is rather a
matter of course that, with the increase in the number of settlement
of disputes between employers and employees by various petty tri
bunals, a system of industrial jurisprudence is developing. It may
take a long time for the various theories of wages and distribution
of wealth to crystallize into a definite body of rules, but such a
system is now in process of development and it will not be long be
fore some enterprising publishing house or philanthropic or govern
mental agency will see the necessity of collecting, indexing and di
gesting this material.12 However, for the present, it must be admitted
that the Kansas Court will not have a great deal in the way of thor
oughly settled rules to guide it in its manifold fields. After centuries
of accumulation of common law precedents, it is still an every day
occurrence to find no precedent which will exactly fit a case before
us. Moreover, we can hardly hope for the development of an indus
trial jurisprudence without interference and modification, from time
to time, by legislative enactments. For example, if it is finally de
cided that it is constitutional for the Kansas Industrial Court to fix
the minimum wage of day laborers at, say, a dollar and a half a day,
what is to prevent the State legislature at its next session from
raising it to two dollars? Let us but recall the "two cents a mile"
statutes in spite of the creation of public utilities commissions to
attend to this very matter.
A significant provision, in this connection, has already been noted
" See "The Development of Industrial Justice," by Morris L. Ernst, 21
Columb1a Law Rev1ew 155.
687
in the Act in section five, which limits the court in the taking of
testimony to the rules of evidence recognized by the Supreme Court.
Is such a limitation necessary or desirable ? Moreover, can we arrive
at the foundation stones of industrial justice within the confines of
the rules of Greenleaf and Wigmore? If the answer be in the nega
tive, we are equally perplexed if we attempt to suggest any alterna
tive restrictions, or try to imagine the consequences of throwing
aside all limitations upon the letting in of testimony, thus giving a
day, or perhaps many days in court, to every personage who evolves
a new theory or doctrine of wages, or "philosophy"' in reference' to
the rights and duties of master and workman.
The need for an impartial tribunal representing the public rather
than the contestants, as in the case of arbitrators, varies somewhat
with the character of the essential industry covered by the Act. In
the case of a natural monopoly, as for example, the street car lines
of a particular city, it is obvious that a fight between employers and
employees may result in a victory for both by a boost in both car
fares and wages. But this is not true in the case of such an industry
as flour milling in Topeka. Here, the competition of interstate com
merce prevents the raising of the price of the product to any great
extent. Hence, the one important question of distribution is: how
much of the market price of the flour shall go to the employer, and
how much to the employee? The public need not worry so long as
it can get its flour in Missouri. The Court cannot fix the price. But
in the case of a nation wide tie-up, such as the coal strike, this alter
native is of little value.
Of how great significance is this new Kansas law? On the one
hand, it may be contended that it is not a violent departure from
established modes of operating, that the new Court is but one logical
step after the creation of public utilities commissions and the use of
voluntary arbitration. Moreover, the new Act does not destroy
competition. Men may still quit singly or in groups provided the
quitting does not amount to striking. While possibly three-fourths
of all Kansas industries fall within the territory of the essential,
there is still room for strikes and lockouts in the other fourth and
jobs may be obtained even in the essential industries a step over the
state line. Many persons, especially trades unionists, insist that no
law can stop strikes. We may hope they are wrong, but whether
or not this Act can do it effectively, nothing but time and experiment
688
MICHIGAN LAW REVIEW
will prove. Moreover, it is urged that Kansas is no better place

for testing industrial innovations than Chicago would be for trying
out a new mountain-climbing apparatus. In but a small spot in the
southeast, and there only in the coal fields, do we find in Kansas
highly organized and belligerent trade unions. Elsewhere and in
other industries, trade unionism has no stronghold. The average
farmer has but one or two farm hands, or none at all, and these
spend but little time in organizing unions, and are much more likely
to be treated as members of their master's family. The migratory
field hands who follow the wheat as it ripens from Texas to Hudson
Bay are too sporadic to be effective strikers. Possibly not until in
dustrial courts are established in all states will the full force of the
Kansas idea be felt. It is doubtless as true today as when it was
written, that "Whatever is best administered is best." If so, the
success or failure of the Kansas law will depend not entirely, or so
much upon the theories or principles underlying it, as it will upon the
industry, character and tactfulness of the judges and their ability to
placate the opposing forces.
To those who regard the new Act as revolutionary, it is a kind of
Magna Charta extorted from the industrial barons and labor czars
by the other nine-tenths of society and settles for all time the para
mount right of society over industry. In the estimation of many of
its labor opponents, the killing or throttling of strikes sounds the
death knell of labor's most effective weapon, without which the
progress of working people is stopped, while to others who condemn
strikes, it cuts from the neck of the laborer a mill stone which has
frequently kept him submerged in pauperism and crime, to say noth
ing of the lash of the labor leader. While organized labor is not
extensive in Kansas, it may be contended that the small Kansas area
wherein the miners are highly organized is ideal in its proportions
for such an experiment, and though the time is not yet ripe to predict
the outcome in Kansas, it is interesting to note that, while most of
the opposition to the establishment of the Court probably came from
organized labor, rather than capital,18 it is labor and not capital which
seems to be making the far greater number of appeals to the Court
for the settlement of labor disputes. Moreover, the tendency on the
part of employees to organize seems to have been stimulated by the
"Wm, M. Duffus, Amer1can Econom1c Rev1ew, June, 192o, page 411.
689
new Act, by reason of the frank recognition which it gives to such

organizations.
According to one authority, such an act will lead to the growth of
extra-judicial bodies. "From the time that the legislature allowed
the conditions of service to become a matter of free contract, neither
employers nor workmen have ever been induced to make use of the
judicial machinery provided for them, but they have always pre
ferred to form voluntary tribunals of their own."14 Clearly, there is
nothing in the new Kansas Act which prevents the organization of
shop committees or resorts to voluntary arbitration. Moreover, if
the Kansas Act results in the adjustment of labor disputes by such
voluntary methods, it will have been a success far beyond the ex
pectations of many of its most ardent advocates, to say nothing of
the relief to the taxpayers who now must needs pay the bills of the
Kansas Industrial Court.
In conclusion, it may be said that if, to any high degree, the new
Court is a success, it means that Kansas has evolved a solution of a
problem which has vexed society, if not from the time when Adam
began to delve for himself, at least from the day when one man
worked for another. If Governor Allen's industrial code puts an
end to the conflict between capital and labor, he deserves to rank
higher as a lawgiver than Napoleon, and Kansas, in the domain of
legislative innovation, has a secure place in the sun.
H. W. Humble.
University of Kansas Law School.
" Paigrave, Op. Cit., Vol. 3, page 481.
THE STATES AND FOREIGN RELATIONS.

THE conduct of a nation's foreign relations may be affected to
a considerable extent by its internal governmental organiza
tion. Generally speaking, a more energetic and effective foreign
policy is possible for a nation whose government is characterized by
unity and coherence. This is true not only with reference to the
relations between the departments of the central government, but
also with reference to the relations between the central government
and the local or state governments. In countries whose government
is based on the federal plan, therefore, an important question to be
considered is that as to the extent, if any, of the control over foreign
relations to be assigned to the component governmental subdivisions.
The tendency in federal, and even in confederate, governments is to
restrict within very narrow limits, if not absolutely to prohibit, any
direct control by the component states over foreign relations.
Under the Articles of Confederation the diplomatic, war, and
treaty powers were, in terms, vested in the central government, and
the powers of the states in those respects were restricted within
narrow limits. The Articles, however, protected the legislative power
of the states with reference to foreign commerce even as against
the power of the central government to control foreign relations,
treaties, and, in practice, this operated as a serious limitation upon
the power of the central government to control foreign relations.
The confusion resulting from divided control over commerce was
one of the principal causes leading to the adoption of the Con
stitution.
The experience secured under the Articles led to the placing in
the Constitution of strict limitations upon the power of the states in
connection with foreign relations. They were absolutely prohibited
from making treaties, but treaties made under the authority of the
United States were declared to be the supreme law of the land, not
withstanding anything to the contrary in the laws of any state. More
over, the states were prohibited, without the consent of Congress,
from entering into any agreement or compact with a foreign power
and from engaging in war, unless in imminent danger of invasion.1
1 The powers of the states, moreover, are restricted with reference to the
regulation of foreign commerce, and the levying of import and export duties.
It should also be mentioned in this connection that the state courts are ex
STATES AND FOREIGN RELATIONS
691
The term "war" properly refers to an armed conflict between na

tions and, as here used, probably refers to danger from a foreign
source or from Indians. In 1839 our relations with Great Britain became strained on ac
count of the dispute over the location of the Northeastern boundary
line between Maine and Canada. During that year, what was known
as the "Aroostook War" broke out between Maine and New Bruns
wick when opposing forces were marched into the disputed terri
tory. The United States and Great Britain, however, entered into
negotiations for a treaty to settle the dispute. "It was deemed neces
sary on the part of our Government to secure the cooperation and
concurrence of Maine, so far as such settlement might involve a
cession of her sovereignty and jurisdiction as title to territory
claimed by her, and of Massachusetts, so far as it might involve a
cession of title to lands held by her. Both Maine and Massachusetts
appointed commissioners to act with the Secretary of State and, after
much negotiation, the claims of the two states were adjusted and
the disputed questions of boundary settled."3 The result was the
Webster-Ashburton treaty of 1842, by article V of which the United
States agreed to receive and pay over to Maine and Massachusetts
their share of the "disputed territory fund" and also to compensate
those states by the payment of a further sum of money on account
of their assent to the boundary line fixed by the treaty.*
Although the claims of the two states were recognized by the
treaty, they were not adjusted directly by those states, but by the
Government of the United States acting on their behalf. As has
been suggested, Webster did not consider the cooperation of the
state authorities a constitutional necessity, but rather that it was
expedient from a political standpoint that the opinion of these states
should be considered.5 This writer admits, howeVer, that states
eluded from jurisdiction in cases to which foreign ambassadors, other public
ministers, or consuls are parties.
'W. W. Willoughby, Const1tut1onal Law of the Un1ted States, II,
1239. Chief Justice Taney, in Luther v. Borden (7 How. 1) declared that
Rhode Island, during Dorr's Rebellion, was in a state of war; but this was a
misuse of the term, as was pointed out by Justice Woodbury in his dissent
ing opinion.
*Ft. Leavenworth R. R. Co. v. Lowe, 114 U. S. 541, quoting 5 Webster's
Works 99; 6 ibid, 273.
' Malloy, Treat1es, etc., I, 654.
8 W1lloughby, op. cit., I, 5o9.
692
MICHIGAN LAW REVIEW
might possibly have international dealings with reference to such an

unimportant matter as the administration of fishing upon boundary
waters.* In this connection, it has been suggested that a state might
enter into an agreement with Canada or a bordering Canadian prov
ince to regulate fisheries in their contiguous waters, in the absence
of a formal treaty by the United States regulating the matter. "May
there not," this writer asks, "properly be an autonomy in local ex
ternal affairs, at least as to the states bordering on Canada or
Mexico, just as there is a local autonomy in matters purely
domestic ?"7
The question came before the Supreme Court in 184o as to whether
the surrender to the Canadian authorities by the governor of Ver
mont of a fugitive from justice was within his constitutional power.
There was no judgment rendered in the case since the court was
equally divided on the question of jurisdiction, but a majority of the
judges, including Chief Justice Taney, were of the opinion that the
governor did not have the power to deliver up the fugitive to a
foreign government. In his opinion, Taney pointed out that such
a delivery involved the making of an agreement with a foreign gov
ernment, which the states were incompetent to make without the
consent of Congress.8 Many years later the same court declared,
obiter, that "there can be little doubt as to the soundness of the
opinion of Chief Justice Taney that the power exercised by the gov
ernor of Vermont is a part of the foreign intercourse of this coun
try, which has undoubtedly been conferred upon the Federal Gov
ernment ; and that it is clearly included in the treaty-making power,
and the corresponding power of appointing and receiving ambas
sadors and other public ministers. There is no necessity for the
states to enter upon the relations with foreign governments, which
are necessarily fmplied in the extradition of fugitives from justice
found within the limits of the state, as there is none why they should
in their own name make demand upon foreign nations for the sur
render of such fugitives. At this time of day and after the repeated
examinations which have been made by this court into the powers
of the Federal Government to deal with all such international ques8 Ibid., I, 5o8, note 23.
* J. F. Barnett. "International Agreements Without the Advice and Con
sent of the Senate," Yale Law Journal, XV, 23, 27. But see, contra, Butler,
Treaty-Mak1ng Power, I, sec. 123.
* 14 Pet. 54o.
693
tions exclusively, it can hardly be admitted that, even in the absence

of treaties or acts of Congress on the subject, the extradition of a
fugitive from justice can become the subject of negotiation between
a state of the Union and a foreign government."9
The governor of a state from which a fugitive from justice has
fled to a foreign country must ordinarily act through the Secretary
of State at Washington in demanding from such government the
return of the fugitive in accordance with extradition treaties between
the two countries. The situation would doubtless be altered, how
ever, where there are acts of Congress or treaties of the United
States expressly authorizing extradition proceedings to be conducted
by the governor of the state directly with the authorities of the for
eign government. Thus, by our treaty of 1861 with Mexico, the
chief executives of the border states and territories were authorized
to make requisitions and to grant extradition in certain cases.10
Again, by our extradition conventions with Denmark and the Neth
erlands, it is provided that application for the surrender of a crim
inal may be made directly to or by the governor or chief magistrate
of the island possession or colony of the respective countries.11 In
such cases, it may be said that the chief executive of the state or
territory is acting primarily as the agent of the United States Gov
ernment.
In general, however, it is true that, for all practical purposes, the
direct contact of the state governments with foreign governments is,
under the Constitution, reduced to a negligible quantity. The gen
eral doctrine on this matter has been laid down by the Supreme Court
in a number of cases. Thus, in the Arjona case, wherein was upheld
a Federal statute punishing the counterfeiting in the United States
of the securities of foreign nations, the Court said : "The Govern
ment of the United States has been vested exclusively with the
power of representing the nation in all its intercourse with foreign
countries. * * * Thus all official intercourse between a state and
foreign nations is prevented, and exclusive authority for that pur
pose given to the United States."12 Again, in the Chinese exclusion
case, the Court says: "For local interests, the several states of the
'United States v. Rauscher, 119 U. S. 4o7 (1886).
"Ma1xoy, 1126. This provision was renewed by the treaty of 1899, ibid.,
1188. Cf. Moore, Extrad1t1on, I, 53-78.
n Ma1xoy, 395, 1272.
"United States v. Arjona, 12o U. S. 479-
694
MICHIGAN LAW REVIEW
Union exist ; but for international purposes, embracing our relations

with foreign nations, we are but one people, one nation, one power."1'
The same principle is thus stated by the Court in the Legal Tender
case: "The United States is not only a government, but it is a
national government, and the only government in this country that
has the character of nationality. It is invested with power over all
the foreign relations of the country, war, peace and negotiations and
intercourse with other nations ; all of which are forbidden to the state
governments."14
, '
Although the general principle, as thus stated by the Supreme
Court, is undoubtedly correct as far as the direct control by the states
over foreign relations is concerned, it is still possible for the states
to take action which may indirectly affect such relations. The extent
of such indirect influence may, of course, vary considerably. State
legislatures not infrequently pass resolutions petitioning Congress or
the Executive to take or not to take certain action in connection with
our foreign relations, or expressing congratulation or sympathy with
particular foreign countries.15 Such a resolution is likely in many
cases to be a mere brutum fulmen and is usually pure buncombe. A
feeling is growing apparently that the state legislatures should not
thus attempt to take a hand in foreign affairs unless the question is
deemed peculiarly to affect the welfare of the state.
A more important method by which a state may indirectly influ
ence foreign relations is through the taking of action which may pur
port to affect the status of aliens residing in such state, or through
its failure to take action for their protection in the exercise of rights
which they claim under treaties. This situation is thus described in
a Senate document relating to the power of recognition : "A state
of the Union, although having admittedly no power whatever in
foreign relations, may take action uncontrollable by the Federal Gov
ernment, and which, if not properly a casus belli, might nevertheless
as a practical matter afford to some foreign nation the excuse of a
declaration of war. We may instance the action which might have
been taken by the state of Wyoming in relation to the Chinese mas
sacres, or the state of Louisiana in relation to the Italian lynchings,
uChae Chan Ping v. United States, 13o U. S. 581, 6o6; cf. Fong Yue
Ting v. United States, 149 U. S. 698.
14 Knox v. Lee, 12 Wall. 457, 555.
"Thus, in 1897, the Senate of Nebraska adopted a resolution extending
to Cuba their sympathy. U. S. Senate doc. 82, 54th Cong., 2nd sess.
695
or by the state of New York in its recent controversy with German

insurance companies with relation to the treatment of its own insur
ance companies by Germany."10 As to whether the action of the
states in such matters is, in all cases, uncontrollable by the Federal
Government, there may be some question, but, judging by the num
ber of instances in which the nation has been embroiled in interna
tional difficulties by the action or non-action of the states, it would
seem that no effective means of preventing such action has yet been
devised. Some of the difficulties encountered have been due to the
lack of protection afforded aliens by the states against individual or
mob violence and the lack of means of redress afforded against such
injuries. Congress could probably constitutionally provide such
means of redress through Federal agencies, but has thus far failed
to do so.17 Other difficulties arise from the passage of acts or ordi
nances by states or municipalities which discriminate or are alleged
to discriminate against aliens in violation of their treaty rights.
Among these are labor laws, land laws, and those regulating the
privilege of attending the public schools. Some of these, as enacted
in various states, have been declared unconstitutional by the courts
as in violation of treaty provisions. Probably the most conspicuous
of the state laws and local ordinances which have given rise to inter
national difficulties are the San Francisco school ordinance and the
California alien land law, aimed at aliens ineligible to citizenship.
The public sentiment in that state on the matter is forcibly indicated
by the adoption in 192o through the popular initiative by a vote of
three to one of an alien land law, against which Japan is said to
have protested as in violation of treaty rights.18
" U. S. Senate doc. 56, 54th Cong., 2nd sess., p. 5.
" Baldwin v. Franks, 12o U. S. 678.
" The action of the people of California in enacting directly through the
popular initiative this alien land law is an example of popular influence in for
eign affairs, exercised in a somewhat novel fashion. The desirability of having
the support of public opinion in the conduct of foreign relations has often
been recognized by various Presidents, who have sometimes made direct
appeals to the people on behalf of particular policies. The importance of
public opinion in such matters has also been recognized by other governments,
as was illustrated by their attempts to influence it, before our entrance into
the World War, through securing control of newspapers and other means of
publicity and propaganda. There has been much said in favor of the demo
cratic diplomacy of full publicity. Intelligent and judicious influence by the
people in foreign relations, however, presupposes a considerable degree of
696
MICHIGAN LAW REVIEW
It is not necessary here to elaborate upon this topic. It may be

said, however, that the treaty-making power has itself at times rec
ognized the desirability of avoiding, if possible, a conflict with the
states in attempting to regulate matters otherwise under their con
trol. Provisions have been inserted in treaties which, instead of
purporting directly to control the matter in question, merely con
stitute an undertaking on the part of our Government to recommend
to the states the taking of the appropriate action. The earliest ex
ample of this is contained in article V of the treaty of 1783 with
Great Britain, by which it was agreed that the Confederate Congress
should "earnestly recommend to the legislatures of the respective
states to provide for the restitution of all estates" of British sub
jects.10 Examples of similar provisions may also be found in treaties
popular education in such matters. The extent of desirable publicity in for
eign policy is logically limited by the extent to which the people can exercise
an effective control, and that includes merely general policies and not details
nor matters requiring quick decision. Some persons have advocated a popular
referendum on the question of peace or war as a preliminary step to the
entrance into war by the United States. W. J. Bryan has gone on record as
declaring that "a referendum on war would give greater assurance of peace
than any other provision that could be made." (Editorial reprinted in Con
gress1onal Record, January 22, 192o, p. 1966.) The delay, however, which
would be produced in coming to a decision if such a plan were adopted would
seem alone to be sufficient to render it impracticable. There are many matters
arising in connection with the conduct of foreign relations), especially during
a crisis, which cannot safely brook the delay necessarily involved in a popular
referendum. The inherent defects of the control of foreign policy by a
deliberative assembly would be greatly enhanced by the adoption of such a
plan. Often there is no time for consulting the popular will and, even if it
were done, in many cases no clear answer would or could be given. It would
be difficult to frame the issue, for the maneuvers of the foreign government
would be an uncertain and uncontrollable factor in the situation. The objec
tions to the popular referendum in foreign affairs have been summed up as
follows : "The referendum is not advisory in any honest sense of the word,
because the decision of the government must be composed of an intricate
series of problems which cannot be isolated. On most of the points the
answer is not yes or no but a course of action with many ramifications of
detail. A government dependent on referendum for advice about every
crucial point could survive only in a world where magic kept everything
frozen tight while the referendum was being taken. In a world of swift
action, of surprises, of intrigue, there can be neither safety nor success for
an administration which had no power to act." (The New Republ1c, Feb
ruary 24, 1917, p. 92.)
" Malloy, Treat1es, etc., I, 588.
697
made since the adoption of the Constitution. Thus, by article VII

of the treaty of 1853 with France, it is provided that "as to the states
of the Union, by whose existing laws aliens are not permitted to hold
real estate, the President engages to recommend to them the passage
of such laws as may be necessary for the purpose of conferring this
right."20
Instances of treaty provisions such as those cited above have been
rare, and, as has been pointed out, if the United States were required,
as a rule, to resort to such procedure, the ultimate result would be that
few nations would be willing to grant us privileges in exchange for
a promise on the part of our Government merely to recommend to
the states the granting of a similar privilege.21 The courts have
construed the treaty-making power as extending to all matters which
are appropriate subjects of international negotiation," and, as the
Supreme Court declared in the Arjona case, "the national govern
ment is * * * responsible to foreign nations for all violations by the
United States of their international obligations."23 This being the
case, it follows that the National Government must have power com
mensurate with its responsibility. Ultimately, by Congressional
action, or by constitutional amendment if necessary, means of con
trol must be provided for the preservation of treaty rights by the
National Government. At the same time, care should be taken, so
far as possible, that no treaty engagements should be entered into,
the carrying out of which will arouse the deep-seated hostility of the
great majority of the people in particular states.2*
John M. Mathews.
University of Illinois.
"Ibid., I, 531. Cf. a similar provision in the treaty of 1871 with Great
Britain, ibid., I, 711.
" Crandall, Treat1es, The1r Mak1ng and Enforcement, p. 267.
"* De Geofroy v. Riggs, 133 U. S. 256, 266-7 ; cf. Missouri v. Holland,
252 U. S. 416.
" United States v. Arjona, 12o U. S. 479.
" General References.Crandall, S. B., Treat1es, The1r Mak1ng and
Enforcement, pp. 141-145, and chap. XVI.
Bruce, A. A., "The Compacts and Agreements of States with One An
other and with Foreign Powers," M1nnesota Law Rev1ew, Juno, 1o18, pp.
5oo-516.
Barrett, J. F., "International Agreements without the Advice and Con
sent of the Senate." Yale Law Journal, XV, 18-27.
PURCHASE OF SHARES OF A CORPORATION BY A

DIRECTOR FROM A SHAREHOLDER.
AS SUGGESTED by the title to this paper, a discussion of the
relationship between the directors of a corporation and the
corporate entity is not within its scope. Neither is the relationship
between the directors and the entire body of the shareholders. These
two subjects are generally treated in another branch of the law of
corporations and generally are not governed by the same rules of
law.1 The purchase of shares of stock by a director from a nonofficial shareholder naturally brings into question the relationship be
tween the director and the shareholder in his individual capacity, and
not in his capacity as the representative of the corporation or the
entire body of the shareholders.2
This same subject was the title of a paper which was published
in the M1ch1gan Law Rev1ew for 191o.3 In that article, all the
decisions upon the subject were reviewed and conclusions drawn
from them by the author. In 191o, the weight of judicial decision
had undoubtedly established the rule that a director in purchasing
the shares of stock of a non-official shareholder was bound by no
duty to the shareholder to disclose any facts relative to the condition
or future prospects of the corporation, even though those facts might
have had an important bearing on the then present value of the
stock. And if the sale was conducted without actual fraud on the
part of the director, that is, without misrepresentation or active con
cealment, the sale could not be set aside, nor could the director be
held to account to the shareholder for the profits resulting from a
rise in the value of the stock immediately subsequent to the sale.*
"Walsh v. Goulden, 13o Mich. 531, 539: "Directors, of course, stand in
a fiduciary relation to the corporation itself. They do not stand in that rela
tion, however, when dealing with other stockholders for the purchase or sale
of stock." Cf. Crowell v. Jackson, 53 N. J. L. 656* 657.
5 Dodge v. Woolsey, 18 How. 331, where a shareholder was allowed to
maintain an action against the directors as representative of the entire body
of the shareholders and the corporation.
88 M1ch. Law Rev. 267.
4 Grant v. Attrill, 11 Fed. 469; Gillett v. Bowen, 23 Fed. 625; Hooker v.
Midland Steel and Iron Company, 215 Ill. 444; Board of Commissioners of
Tippecanoe County v. Reynolds, 44 Ind. 5o9; In re Shreveport Bank, 118 La.
664; Walsh v. Goldden, 13o Mich. 531; Crowell v. Jackson, 53 N. J. L. 656;
STOCK PURCHASES BY DIRECTORS
699
There are frequent expressions in the older decisions such as, "a
director * * * may deal with an individual shareholder and pur
chase his stock practically on the same terms as a stranger,"5 and,
"the directors are not the bailees, the factors, agents, or trustees of
such individual stockholders."9
The almost universal adoption of this rule so broad in terms, has
brought down a storm of protest from the writers in the periodicals,
who proclaim it to be contrary to the dictates of ethics and sound
morals.7 It has been urged by others that to continue the rule would
be contrary to sound business policy.8 And it would seem to be
perfectly obvious that if the directors were allowed to manipulate
the affairs of their corporation in such a manner as to discourage the
small investor and then purchase his shares at a nominal price,
that, if they are allowed to make such purchases with impunity and
without fear of avoidance of the sale, then the small investor will
ultimately be forbidden to invest in the stock of corporations. The
ultimate success of the corporate form of business enterprise lies in
making the corporation a reasonably safe place for investment,at
least secure from the passive frauds of its officers and directors.
This necessarily involves the abrogation of the old rule,if not in
toto, at least in some of the more extreme cases.
Such an extreme case presented itself to the Supreme Court of
the United States in 19o9. Strong V. Repide9 was correctly predicted
by the author of the former article in the M1ch1gan Law Rev1ew
to be a leading case upon the relation of director to non-official
shareholder in the purchase of the latter's shares of stock. The
court in that case admitted the existence of the general rule that the
director in purchasing the shares of a shareholder owes to him no
duty to disclose the condition of the corporate affairs. However,
Justice Peckham, in speaking for the court, announced for the first
Carpenter v. Dan forth, 52 Barb. 581 ; Stark v. Soule, 27 N. Y. Week. Dig. 8o;
Krumbhaar v. Griffeths, 151 Penn. St. 223; Deaderick v. Wilson, 8 Baxt.
(Tenn.) 1o8; Haarstick v. Fox, 9 Utah 11o; O'Neile v. Ternes, 32 Wash.
528; Percival v. Wright, [19x12] 2 Ch. 421.
* Hooker v. Midland Steel and Iron Company, 215 Ill. 444.
* Smith v. Hurd, 12 Met. 371,per Chief Justice Shaw.
'67 Central L. Journal, 452.
*81 Central L. Journal, 256.
9Strong v. Repide, 213 U. S. 419. For a full discussion of the facts and
holding in this case, see 8 M1ch. L. Rev. 268.
7<x>
MICHIGAN LAW REVIEW
time the so-called special facts doctrine, that where there are special
facts connected with the sale of the stock, the case may be taken out
of the general rule and a duty devolve upon the director to make a
full and accurate disclosure to the shareholder of all facts within
his knowledge which have a bearing upon the real value of the stock.
It may be well, in this connection, to enumerate the special facts
which took Strong v. Repide out of the general rule and rendered the
purchasing director liable to the shareholder for the profit resulting
from the transaction : ( I ) The director owned a majority of the
stock of the corporation, (2) He was the chief negotiator in the sale
of the company's lands to the government, which sale was the sole
cause of the difference between the real and the apparent value of
the stock of the corporation at the time of the transaction, (3) The
negotiations were for the sale of the entire property of the corpora
tion, (4) Through the acquiescence of the shareholders, he was act
ing substantially as their agent in the sale of their stock, (5) He
concealed his identity as purchaser from the shareholder, (6) The
nature of the corporation itself, as pointed out in a recent case,10 was
also an important circumstance which contributed to the result
reached in Strong v. Repide. The land which was owned by the
corporation was its only asset, and this was held for the sole purpose
of a favorable opportunity to sell to the government. "Corporation"
was merely a name which had been conferred upon an inactive
partnership.
A recent article in the Yale Law Journal suggested to the writer
the possible utility in bringing down to date the original article in
the M1ch1gan Law Rev1ew on this subject and reviewing the de
cisions that have been handed down in the last decade.11 A majority
of these thirteen cases have seized upon the special facts doctrine
advanced by the Supreme Court of the United States as a means of
escape from the rigour of the general rule adhered to by the older
decisions. Fletcher, in his recent work on corporations, seems to
have been the first author to have recognized that there existed such
an exception to the general rule.12 This, however, is not at all due
" Haverland v. Lane, 89 Wash. 557, 568.
" "To make such an analysis, except as to cases decided since 191o, would
indeed be a work of supererogation in view of Professor Wilgus' article."
Professor Clarence D. Laylin, 27 Yale L. Jour. 731.
"4 Fletcher, Cycloped1a of Corporat1ons, (192o) 2566, 2567.
701
to the oversight of the older authorities, for his is the only exhaustive
work on the subject of corporations which has been published since
the decision in Strong v. Repide.
It may be well to take up the cases in their chronological order,
for this method will better show the course of development of
the law.
In February, 1911, the Court of Appeals of the District of Colum
bia handed down the decision in George v. Ford.1* Ford was a
manager and the director of the Beaty Lumber Company and held
five-sixths of the corporate stock. George held the other one-sixth
part of the stock. Ford represented to George that the affairs of
the company were in such a deplorable condition that it would be
necessary for the company to sell out to its competitor in order to
prevent dissolution. George then gave Ford a power of attorney to
sell his stock in the Beaty Lumber Company. Ford was a large
shareholder in the competitor at the time of this transaction. He
purchased the George stock under the power of attorney and then
exchanged this together with all of his original holdings in the Beaty
Lumber Company for an equal number of shares in the competitor.
These shares Ford continued to hold in his own name. George later
discovered that he had parted with his stock in the Beaty Lumber
Company at a mere fraction of its real value.
The case came up on the defendant's demurrer to the plaintiff's
bill for an accounting. The principal ground of demurrer was that
the facts alleged in the complaint did not state a cause for relief.
In overruling the demurrer, the court said : "That the defendant
was manager of the Beaty Lumber Company and the plaintiff a
director and shareholder thereof did not necessarily constitute such
a fiduciary relation between them as would render the transaction of
December 21, 1899, voidable for that reason alone. * * * But the
facts alleged, substantially, that the plaintiff, though a director, took
no active part in the management, and relied, as the defendant knew,
on him as manager and friend and fellow shareholder to keep him in
formed of all matters relating to the operations and financial condi
tion of the corporation. That under these circumstances, he sought
the plaintiff apparently to induce him to constitute the defendant his
agent to sell and pass title to his stock and interests, would seem to
have imposed not only a moral but an equitable obligation upon him,
" George v. Ford, 36 App. Dist. Col. 315.
MICHIGAN LAW REVIEW

when dealing with the plaintiff, to disclose to him the material facts
of the situation."14
Here, as in Strong v. Repide, Ford, as director, owned a majority
of the stock ; he was the chief negotiator in the sale of the company's
assets ; the sale was for the entire property of the corporation ; and
he was acting as agent for the plaintiff in the sale of his stock. In
addition, the plaintiff and the defendant were the only shareholders
in the corporation. These are in brief the special facts upon which
the court rested its decision.
Now it is true that in the case of George v. Ford there was an
actual misrepresentation by the defendant, Ford, and this was relied
on by the court in rendering its opinion. However, in another part
of the opinion, the decision is rested upon the special facts enumer
ated above as creating a fiduciary relation between director and
shareholder, and this must at least be taken to have been a ratio
decidendi.
Bawden v. Taylor was decided by the Supreme Court of Illinois
in June, 191 2. Taylor was the president and general manager of the
Taylor Publishing Company, publishers of a scientific bulletin called
the Eagle. Taylor entered into negotiations with a publishing house
in New York City for the sale of the Eagle. Bawden, who was a
non-official shareholder in the Taylor Publishing Company, knew of
the pending negotiations, but was entirely dependent upon Taylor
for information in regard to the price to be paid for the Eagle. Taylor
bought Bawden's stock at a price that was somewhat below its actual
value, without disclosing the price to be paid by the New York firm
for the Eagle. The court refused to grant a rescission of the sale,
holding that the case fell within the general rule, that there is no duty
on the part of a director to disclose circumstances within his knowl
edge affecting the value of the stock when buying the stock of a nonofficial shareholder. In this, they merely followed the earlier Illinois
decision in Hooker v. Midland Steel and Iron Company.1*
In Bacon v. Soule,11 July, 1912, the California Court of Appeals
reached a like result. The plaintiff, Bacon, and his two sisters, de
fendants, were the only shareholders in the Bacon Land Company,
14 George v. Ford, 36 App. Dist. Col. 315, 328.
" Bawden v. Taylor, 254 III. 464.
"Hooker v. Midland Steel and Iron Company, 215 Ill. 444. Cf. 8 M1ch.
L. Rev. 286.
" Bacon v. Soule, 19 Cal. App. 428.
7o3
a corporation engaged in the real estate business. The two defend

ants were directors. For many years the plaintiff had taken little or
no interest in the affairs of the company. The shareholders decided
to dissolve the corporation and turn in their stock in exchange for
allotments in the land held by the company. The defendants de
murred to the plaintiff's complaint for fraud and deceit, which
alleged that a certain house had been alloted to him under this agree
ment, that the value of the house had decreased greatly on account
of the removal of fixtures before the time of the agreement to dis
solve, that he had no knowledge of the removal of the fixtures, but
believed that the house was in the same condition as it was when he
was actively engaged in the business of the corporation, and that,
although the defendants knew that he was acting under this belief,
they had failed to make any disclosure to him. The demurrer to the
complaint was sustained and the court reiterated the old rule that
there is no duty on the part of a director to disclose facts relative
to the management when dealing with a shareholder. However, if
there are any special facts in Bacon v. Soule, they would seem to
argue in favor of imposing no duty upon the director to disclose
rather in support of the principle recognized in Strong v. Repide.
"In the case at bar," the court remarks, "it is apparent that in deal
ing with the subject-matter of the controversy the defendants were
not acting in any manner as the representatives of the corporation.
On the contrary, they, as individuals, were dealing with the plaintiff
as an individual in a transaction purely personal to each of them, and
therefore, their respective duties and obligations to one another must
be measured by the ordinary rules regarding transactions between
individuals rather than by those which pertain to and govern the
conduct of officers of a corporation in the management and control
of the corporation's affairs and property."18
In Gadsden v. Bennetto,1" March, 1913, Gadsden was the owner
of two shares of stock in the Kooteney Valley Fruit Lands Com
pany, a corporation organized for the sole purpose of holding a tract
of fruit lands with the view to a future advantageous sale. The
two defendants were directors and officers of the company. Bennetto, one of the defendants, entered into negotiations for the sale
of the company's holdings and secured an offer of $8o,ooo. The
" Bacon v. Soule, 19 Cal. App. 428, 438.
"Gadsden v. Bennetto, 23 Manitoba L. Rep. 33, 9 Dom. I,. Rep. 719, re
versing, 21 West. L. Rep. 886, 5 Dom. L. Rep. 529.
MICHIGAN LAW REVIEW

defendants, as directors, knowing of the offer, passed a resolution
appointing themselves a committee to bring in proposals for the sale
of the company's property. They then bought in Gadsden's stock at
$1,37o per share without disclosing to him the $8o,oo0 offer. The
committee then brought in a proposal to accept the offer, the lands
were sold, and the price received raised the share value of the stock
to $2,ooo. The proceeding was in the nature of a bill in equity to
have the defendants declared trustees of the profits realized on
Gadsden's stock.
In granting relief, Perdue, J. A., at pages 39 and 4o of the Mani
toba Report distinguishes the case from the earlier English decision,
which declared that there was no fiduciary relation between director
and shareholder:
"The position of the members of the committee is very dif
ferent from ordinary directors of a company as regards their
fiduciary relations, and is quite distinguishable from Percival
v. Wright. [19o2] 2 Ch. 421. In the present case the com
mittee were acting outside the ordinary duties of directors,
they were appointed for the purpose of securing and bringing
in a proposal for disposing, not only of the land which was
the property of the Company, but the shares which were the
property of the individual shareholders. On any proposal
being received by them which involved the acquisition of the
shares, they were bound to disclose to the shareholders, the
interested parties, the nature of the proposal and the price
offered. If the proposal took the form of acquiring all the
Company's property and leaving the shares out of account,
the shareholders would be immediately interested in that pro
posal because their shares would become worthless when the
property was transferred and they could only look for reim
bursement to their share of the purchase money on a distri
bution being made. If the committee, acting under its duties
to the Company and the shareholders secured a highly advan
tageous offer, they were bound to make a full disclosure of
the offer to the Company and the shareholders. The mem
bers of the committee were the confidential agents of the
Company and the shareholders. Their concealment of Coop
er's offer, which so greatly enhanced the value of the shares,
with a scheme in view to buy the shares at a low price, was
705
a breach of duty and a fraud upon the shareholders whose

shares they acquired by means of that concealment, at a price
far less than their intrinsic value.
"The learned trial judge dealt with the case as if Bennetto
and Wellband were mere directors of the Company and gave
his decision upon the view that, as directors, no duty was cast
upon them to make to the individual shareholders full dis
closure of the negotiations that were pending with Cooper.
"Without expressing any opinion on the duty of directors
to the individual shareholders in such a case, I think the
learned trial Judge quite overlooked the fact that the three
members of the committee were, by reason of the resolution
appointing them, and by their acceptance of the duty imposed
by it upon them, acting outside the scope of ordinary di
rectors, and that a fiduciary relationship had been established
between them, on the one hand, and the Company and the
individual shareholders on the other."
In Black v. Simpson,20 April, 1913, the defendant, Simpson, was
a director and the general manager of the Farmers' Fertilizer Com
pany, in which the plaintiffs were shareholders. Simpson conceived
and entered upon a scheme of acquiring the entire stock of the Com
pany at much less than its actual value by representing to each of the
plaintiffs that the corporation was not prosperous. He successfully
carried out this plan, and thereby induced the plaintiffs and other
shareholders to sell to him their holdings in the corporation at a
price greatly under the real value. He then made a considerable
profit on the transactions by the sale of the entire corporate assets.
The South Carolina court compelled Simpson to account for the
profits to the shareholders from whom he had purchased.
It is true that in Black v. Simpson there were actual misrepresen
tations made by the director for the purpose of inducing the share
holders to sell their stock. But inasmuch as the court elected to rest
their decision not upon the ground of actual fraud, but rather upon
the breach of the fiduciary or quasi-trust relation between the di
rector and the individual shareholders, the latter ground must be
taken to be the real basis for the decision. It will be noticed that in
Black v. Simpson there was a general scheme to induce the sale of
the shares at less than their real value ; and, during the course of the
"Black v. Simpson, 94 S. C. 312.
706
MICHIGAN LAW REVIEW
opinion, Justice Woods singles out this fact as a reason for the exist
ence of the quasi-trust relation between the director and shareholder.
The special facts doctrine was again advanced in the case of Allen
v. Hyatt."9' Here again, as in Gadsden v. Bennetto21 the court dis
tinguished the earlier decision in Percival v. Wright}1' The plain
tiffs were non-official shareholders in the Lakeside Canning Com
pany, Ltd. The defendants were directors and held $1o,o0o out of
the capital stock of $3o,5oo. During the time that negotiations were
pending for the sale of the entire corporate property to the Dominion
Canners, Ltd., in furtherance of a proposed amalgamation of all the
canning companies in Canada, the directors approached the plaintiffs
and secured options on their stock at $25o a share without disclosing
to them the price to be paid by the Dominion Company. The options
were exercised and the sale of the corporate property of the Lake
side company was completed with a handsome profit resulting to the
defendants on the plaintiffs' shares of stock. The Supreme Court
of Canada held that the directors slumld hold the profits as trustees
for the shareholders. Speaking for the Court, Haldane, L. C, said :
"The appellants appear to have 'been under the impression
that the directors of a company are entitled under all cir
cumstances to act as though they owed no duty to individual
shareholders. No doubt the duty of the directors is primarily
one to the company itself. It may be that in circumstances
such as those of Percival v. Wright [19o2] 2 Ch. 421, which
was relied on in the argument, they can deal at arm's length
with a shareholder. But the facts, as found in the present
case, are widely different from those in Percival v. Wright,
and their Lordships think that the directors must be taken to
have held themselves out to the individual shareholders as
acting for them on the same footing as they were acting for
the company itself, that is as agents."-2
The case of Steiniield v. Nielsen,23 commented on in the previous
M* Allen v. Hyatt, 3o Times L. Rep. 444, affirming, 17 Dom. L. Rep. 7,
affirming 8 Dom. L. Rep. 79, which affirmed, 2o Ont. W. Rep. 594, 3 Ont. W.
N. 37o, which affirmed, 1o Ont. W. Rep. 85o, 2 Ont. W. N. 927.
" Gadsden v. Bennetto, supra, note 19.
* Percival v. Wright, [1902] 2 Ch. 421. Cf. 8 M1ch. L. Rev. 281.
"Allen v. Hyatt, 17 D. L. R. 7, I1.
33 Steinfeld v. Nielsen, 12 Ariz. 381.
707
article in the M1ch1gan Law Rev1ew,24 was subsequently carried to

the Supreme Court of the United States on appeal,Arizona at that
time being a territory. The Supreme Court refused to consider the
case on its merits because the court of the territory had failed to find
the facts in the nature of a special verdict, as required by law. The
case was therefore reversed, the reversal to "have the legal effect of
causing the case to be as though it were yet pending undetermined on
the appeal from the trial court."25 The case of Steinfeld v. Nielsen
in 12 Arizona, therefore, must be considered as a mere nullity so far
as its authoritative value is concerned.
The case again came before the Supreme Court of Arizona and was
finally decided by that court in April, 1914,Arizona then having
been admitted as a state.28 To review the facts of the case briefly,
Steinfeld, though not a director, was the owner of the majority of the
stock, and, in the words of the court, "Steinfeld's domination of the
company was absolute." Nielsen was a director and the superintend
ent of the company's mine. Steinfeld conceived the idea of purchas
ing adjacent mines with the object of thus increasing the value of the
entire group of mines in order that the entire group might be sold at
a more favorable price. With this in view, and also for the purpose
of acquiring the Nielsen stock at a nominal price, he caused the mine
to be shut down and discharged Nielsen from the board of directors
and his position as superintendent of the mine. The adjacent mines
were bought in at a low figure and so was Nielsen's stock. The whole
property was then sold at such a price that, in consideration of the
probability of such a sale, Nielsen's stock was actually worth twice
the price that Steinfeld had paid for it.
Justice Ross, in rendering the opinion of the court, first stated the
general rule as to the relation between director and shareholder. He
then averted to the case of Strong v. Repide and set out at length the
doctrine of special facts in that case. "We would be bound by that
case," reads the opinion, "if the facts in this case were the same. In
that case Strong was not an officer of the company arid had no part
in its management, and the sale to the government was entirely in
Repide's charge and pending at the time he bought the Strong shares.
"8 M1ch. L. Rev. 29o.
"Steinfeld v. Nielsen, 224 U. S. 534, 54o, 32 Sup. Ct. Rep. 6o9, 612, 56
L. Ed. 872.
"Steinfeld v. Nielsen, 15 Ariz. 424, 139 Pac. 879.
708
MICHIGAN LAW REVIEW
Nielsen was not only a stockholder in the Nielsen Mining & Smelting
Company, but was also a director. He was also superintendent of
the mines and smelter. * * * Under these circumstances, there were
no special facts known to Steinfeld that were not also known to
Nielsen.""
There were no special facts in the case of Shaw v. Cole Manufac
turing Company, April, 1915, and consequently the case followed
the general rule that the director is not liable to the shareholder for
failure to disclose facts relative to the condition of the company
when purchasing his stock. In this case, the Coles purchased from
the Shaws at a price greatly under the real value, without informing
the Shaws of facts relative to the condition of the company, which
facts did not appear in the company's books. In arriving at their
decision, the court followed the former Tennessee case of Deaderick
v. Wilson."9 However, they felt constrained to refer to the decision
of Strong v. Repide and pointed out two special facts in that case
which were not present in the case at bar, namely, the extensive in
formation of the managing director, and the director's concealment
of the fact that he was the real purchaser of the stock.50
Haverland v. Lane,31 decided by the Supreme Court of Washing
ton in February, 1916, also held according to the general rule. The
plaintiff was a shareholder in the Consolidated Telephone Company,
and the defendant was a director of that company. The company
was in hard circumstances and no dividends had been declared for
a number of years. The defendant negotiated a loan by the terms
of which he was to transfer to the Securities Company a number of
the shares of the Consolidated Telephone Company as security.
Without telling the plaintiff of the loan, he bought the plaintiff's
shares and transferred them to the Security Company. Subsequently
there was a rise in the value of the stock of the Consolidated
Company.
In distinguishing the case from Strong v. Repide, the court said :
"In that case there was an inactive corporation. It was no
" Steinfeld v. Nielsen, 15 Ariz. 424, 445, 446.
" Shaw t. Cole Manufacturing Company, 132 Tenn. 21o.
"Deaderick v. Wilson, 8 Baxt. (Tenn.) 108. See note 4, supra. CI.
also, 8 M1ch. L. Rev. 276.
" Shaw Cole Manufacturing Company, 132 Tenn. 21o, 214.
"Haverland v. Lane, 89 Wash. 557, 154 Pac. 11 18.
709
more than a name. * * * The principal owner because of his

large controlling interest had been consulted and knew that
the lands might be sold for a price to be agreed upon ; that a
large sum of money had been offered by the government. He
did not go to the complaining stockholder or to her agent,
although he knew him. * * * Every effort was made to con
ceal the prospective sale of the lands, and the immediate pur
chaser of the stock."*2
In the case at bar the court pointed out that there were no special
facts. There was no effort on the part of the director to conceal his
identity, nor was there anything unusual about the nature of the
corporation itself. Hence, the general rule as announced in the
earlier Washington case of O'NeUe v. Ternes33 was followed and
the director was sustained in his defense to an action for deceit by
the shareholder.
In Jacquith v. Mason,31 March, 1914, the plaintiff owned 2o1
shares of stock in the Underwriters Insurance Company. No divi
dends had been declared on this stock for several years. The presi
dent of the company bought in the plaintiff's stock at $75 per share
without informing her that negotiations for the sale of all the com
pany's assets had practically been closed. The final consummation
of the deal caused the stock of the Underwriters Company to jump
to $11o per share.
The court did not attempt to find any special facts in their opinion,
but held that the defendant's liability rested upon the rule that in
all cases regardless of the circumstances there is a relation of trust
between director and individual shareholder as to the latter's shares
of stock, and that the director, in purchasing the shares of a nonofficial shareholder, owes a duty to disclose. This view was first
advanced in Oliver v. Oliver3* and followed in Stewart v. Harris.33
The same rule was again followed in the recent Iowa case of
Dawson v. National Life Insurance Company,37 which was decided
" Haverland v. Lane, 89 Wash. 557, 568.
" O'Neile v. Ternes, 32 Wash. 528. See note 4, supru. Cf. also 8 M1ch.
L. Rev. 283.
" Jacquith v. Mason, 99 Neb. 5o9,
"Oliver v. Oliver, 118 Ga. 362. Cf. 8 M1ch. L. Rev. 286.
" Stewart v. Harris, 69 Kan. 498. Cf. 8 M1ch. L. Rev. 286.
"Dawson v. National Life Insurance Company, 176 Iowa 362.
MICHIGAN LAW REVIEW

in May, 1916. The defendants were directors and officers of the
Des Moines Insurance Company. The plaintiff, Dawson, held three
shares of the company's stock. An agreement was concluded be
tween the defendants and the National Life Insurance Company by
which the latter was to purchase all the stock of the Des Moines
Insurance Company. According to the terms of the agreement,
Harbach, one of the defendants, who was also an officer of the Na
tional Company, was to purchase the stock of all the small share
holders of the Des Moines Insurance Company for the purpose of
later transferring them to the National Insurance Company. Har
bach bought the plaintiff's stock at $2oo per share without disclosing
to him the existence of the contract with the National Company or
any of its terms. The average price which the defendant's received
for their own shares when they were transferred to the National In
surance Company was about $1,ooo.
Here too the court laid down in bold terms the doctrine that the
fiduciary relation between director and shareholder does not rest on
any special facts, nor did the court search for any. Justice Ladd
commented on the decision in Strong v. Repide in the following
manner :
"That the writer of the opinion in Strong's case was mis
taken in saying that the decisions were based on special facts
which took them out of the general rule clearly appears from
our quotation from the Georgia case88 and the language of
the instruction in the Kansas case."8*
The facts, as set out in the opinion in Poole v. Camden,40 decided
in November, 1916, are rather meager. However, it is clear that
the plaintiff was a non-official shareholder and the defendant, Cam
den, was a director in the Interurban Railway Company. The plain
tiff called on Camden and asked to be advised as to the value of her
stock and the condition of the corporation, but Camden told her
nothing. Camden then bought the plaintiff's stock at less than its
real value. The lower court decreed that the sale be set aside and
the defendant account to the plaintiff for such dividends as he had
received on the stock subsequent to its sale by the plaintiff, and this
decree was affirmed in the supreme court.
"Oliver v. Oliver, 118 Ga. 362.
" Stewart v. Harris, 69 Kan. 498.
" Poole v. Camden, 79 W. V. 31o.
71 1
The basis for the decision is to be found on page 319 of the re

port, where Judge Lynch says :
"Conceding the so-called majority rule to be the correct
one, we think, upon the principles of the cases just referred
to, recognizing the exceptions, that where a stockholder, who,
as in this case, is first sought by a secret agent of a director,
with a proposition to buy his stock, and the stockholder goes
to such director to obtain full information respecting the
value of his stock and the condition of the corporation, its
plans and prospects, the reason for a recent reduction of
dividends, and all other information affecting or tending to
affect the value of the stock, such director cannot withhold
any information within his knowledge, or in any way mis
lead or deceive him, or by acts, words, or conduct, induce a
sale of the stock to him, except upon penalty of having the
sale rescinded at the option of the stockholder; that if he
undertakes to speak or become active in inducing the sale
he must speak fully, frankly, and honestly, and conceal noth
ing to the disadvantage of the selling stockholder."
The case which most clearly marks out the development of the
special facts doctrine is Bollstrom v. Duplex Power Car Company*1
decided by the Supreme Court of Michigan in December, 1919.
Bollstrom owned 1,161 shares of stock in the Duplex Power Car
Company in which both Murray and Town were directors and Town
was also the majority stockholder. Ever since the organization of
the company in 19o9 it had been in deplorable financial condition.
No dividends had been declared, and assessments had been levied
against the stock to meet the claims of creditors. At times the stock,
which had a par value of ten dollars, was not actually worth ten
cents on the dollar. In 1916, Town entered into an agreement with
Lansing capitalists under which they were to buy three-fourths of
the stock of the Duplex Power Car Company and transfer the stock
to a syndicate which they agreed to incorporate. The syndicate was
to pay twenty dollars a share for the stock received from the Duplex
Company. With full knowledge of this agreement and in further
ance thereof, Murray purchased the plaintiff's shares at the par value
of ten dollars. ' Bollstrom had no knowledge of the agreement and
a Bollstrom v. Duplex Power Car Company, 2o8 Mich. 15, 175 N. W. 492.
MICHIGAN LAW REVIEW
712
had been inactive in the affairs of the Duplex Power Car Company
for some time. It was held that Bollstrom was entitled in equity to
the difference between the sale price and the real value of the shares
at the time of the sale.
Justice Sharpe, in his opinion, proceeds to distinguish the former
Michigan case. Walsh v. Goulden*2 which had held that there was
no duty on the part of the purchasing director to disclose facts rela
tive to the condition of the corporation to the shareholder. Refer
ring to that decision, he says :
"As applied to a going concern, whose records reveal the
value of the stock, and the good will and intangible assets of
which are presumably as well known to one shareholder as to
another, there may be no hardship in so holding. But the
proofs in this case present a different situation."
And again :
"We think the facts in this case bring it squarely within
the rule laid down in Strong v. Repide. In that case, the
president of a corporation purchased stock at much less than
its par (real?) value, as known to him, and, due to conditions,
unknown to the stockholders."
By merely counting noses, it will be found that since 1q1o eight
cases43 have imposed a liability in one form or another upon the
director for failure to disclose, while there are but five cases" which
take the view that there is no liability. This would seem to disclose
a marked departure from the settled law before that time. However,
mere numerical weight is a rather unsatisfactory and superficial
method of arriving at the true state of the law.
Of the five cases deciding that there is no liability, three followed
the general rule laid down in former cases in the same state, but
"Walsh v. Gouldcn, 13o Mich. 531, go N. W. 4o6. Cf. note 4, supra, and
also 8 M1ch. L. Rev. 282.
"George v. Ford, 36 App. Dist. Col. 315; Black v. Simpson, 94 S. C. 312;
Allen v. Hyatt. 17 D. L. R. 7; Jacquith v. Mason, 99 Neb. 5o9: Dawson v.
National Life Insurance Company, 176 Iowa 362; Poole v. Camden, 79 W.
V. 31o; Bollstrom v. Duplex Power Car Company, 2o8 Mich. 15, 175 N. W.
492; Gadsden v. Bcnnetto, 23 Manitoba L. Rep. 33, 9 D. L. R. 719.
44 Bawden v. Taylor, 254 Ill. 464 ; Bacon v. Soule, 19 Cal. App. 428 ;
Steinfeld v. Nielsen, 15 Ariz. 424; Shaw v. Cole Manufacturing Company, 132
Tenn. 21o; Haverland v. Lane, 89 Wash. 557.
7'3
also declared that they were unable to find any special facts in the
case.*5 In another of these cases, the court expressed a willingness
to be bound by the rule in Strong v. Repide, but decided that they
could not apply the rule in the case at bar inasmuch as the plaintiff
was a director and was therefore on an equal footing with the de
fendant.48 The fifth case in this group declared that the relation of
shareholder and director was not involved and that the parties to the
cause were dealing as any other individuals.*7 In fact, there is not
one jurisdiction where the question has before been undecided that
has expressed a willingness to follow the general rule as laid down
by the older line of authorities.*8
Six of the eight cases imposing a liability upon the purchasing
director have admitted that in general there is no fiduciary relation
between director and individual shareholder, but have found facts
sufficient to take the instant case out of the operation of the general
rule.*" It seems that if the director sends a secret agent to the share
holder for the purpose of purchasing his stock and the shareholder
then comes to the director for further information, the director is
bound to reveal all facts within his knowledge relative to the prob
able future value of the stock.50 A like duty will result if the di
rector, in furtherance of a preconceived plan to buy in all the stock
of the corporation, takes active steps to deceive the shareholders as
to the real value of their stock.51 The writer submits that such cases
could more properly be decided on the ground of actual fraud than
upon any relation between shareholder and director.52 And like" Bawden v. Taylor, 254 Ill. 464, following, Hooker v. Midland Steel &
Iron Company, 215 Ill. 444; Shaw v. Cole Manufacturing Company, 132 Tenn.
21o, following, Deaderick v. Wilsonj 8 Baxt. (Tenn.) 1o8; and, Haverland r.
Lane, 89 Wash. 557, following, O'Neile v. Ternes, 32 Wash. 528.
"Steinfeld v. Nielsen, 15 Ariz. 424.
" Bacon v. Soule, 19 Cal. App. 428.
** See note 4, supra.
" George v. Ford, 36 App. Dist. Col. 315 ; Black v. Simpson, 94 S. Car.
312; Gadsden v. Bennetto, 23 Manitoba I_. Rep. 33; Allen v. Hyatt, 17 Dom. L.
Rep. 7; Poole v. Camden, 79 W. V. 31o; Bollstrom v. Duplex Power Car
Company, 2o8 Mich. 15, 175 N. W. 492.
"Strong v. Repide, 213 U. S. 419; Poole v. Camden, 79 W. V. 31o; Boll
strom v. Duplex Power Car Company, 208 Mich. 15, 175 N. W. 492, (although
this point was not noted in the opinion).
31 Black v. Simpson, 04 S. Car. 312; Strong v. Repide, 213 U. S. 419.
"Traer v. Clewes, 115 U. S. 528, 6 Sup. Ct. Rep. 155, 29 L. Ed. 467;
Morrison v. Snow, 26 Utah 247, 72 Pac. 924.
7'4
MICHIGAN LAW REVIEW
wise, the intentional concealment by a director of the fact that he is

the real purchaser would warrant a finding of actual fraud." But
curiously enough, several of the courts seem to have been so im
pressed with the opportunity to find exceptions to the old rule that
they entirely overlooked the elements of actual fraud in the case.84
The fact that the director first sought out the shareholder for the
purpose of buying his stock has frequently been made the basis for
finding an exception."
The nature of the corporation itself has been seized upon by a
number of the courts for this purpose. For example, in the case of
a "closed" corporation where the buyer and seller of the stock are
the only shareholders, courts have invariably held that a fiduciary
relation existed between them" and have held transfers of stock
under such circumstances to the same standard of good faith as
transactions between partners.87 And this seems to be the correct
result ; for although the relation between shareholder and director is
not generally so intimate as that between partners, still, as a matter
of common experience, there is no essential difference between a
closed corporation with but few shareholders and the ordinary part
nership except the mere fact of incorporation. If the corporation is
inactivenot a going concernso that the shareholders have no
opportunity to acquaint themselves with the facts by an inspection
of the company's books, this has been held to place the director in
such an unusual position of superiority in dealing with the share
holder that he is bound to make a disclosure.8* And likewise, where
the purchasing director is the majority stockholder, his natural su
periority over the shareholder is coupled with a duty to disclose."
"George v. Ford, 36 App. Dist. Col. 315; Poole v. Camden, 79 W. V. 31o;
Bollstrom v. Duplex Power Car Company, 2o8 Mich. 15, 175 N. W. 402;
Strong v. Repide, 213 U. S. 419.
"Poole v. Camden, 79 W. V. 31o; Bollstrom v. Duplex Power Car Com
pany!, 2o8 Mich. 15 ; Strong v. Repide, 213 U. S. 419.
"George v. Ford, 36 App. Dist. Col. 315; Gadsden v. Bennetto, 23 Mani
toba L. Rep. 33, 9 Dom. L. Rep. 719; Allen v. Hyatt, 17 Dom. L. Rep. 7;
Poole v. Camden, 79 W. V. 31o; Strong v. Repide, 213 U. S. 419.
"George v. Ford, 36 App. Dist. Col. 315; Gadsden v. Bennetto, 23 Man.
L. Rep. 33 ; Strong v. Repide, 213 U. S. 419.
"Griffith v. Owen, [19o7] 1 Ch. 195; Anderson v. Lemon, 4 Seld. (N.
Y.) 236.
"Bollstrom v. Duplex Power Car Company, 2o8 Mich. 15; Strong v.
Repide, 213 U. S. 419.
"George v. Ford, 36 App. Dist. Col. 315; Strong v. Repide, 213 U. S. 419.
715
If the undisclosed fact consists of a single transaction which will

naturally cause a rise in the value of the stock, such as sale of the
entire corporate property at an advantageous price, the director is
bound to disclose this fact before he can safely buy in shares.*0
Here too the director is in a position which, by reason of his peculiar
knowledge, is naturally superior to that of the shareholder, and the
transaction is one which the shareholder could not possibly discover
through any other oracle than his director.
If the relation of principal and agent exists between the share
holder and the purchasing director, it has been held that there is a
fiduciary relation between them,for example, where the share
holder gives the director a power of attorney to sell his stock.*1 But
such cases could have been decided on the ground of agency alone
and without reference to the relation of shareholder and director,
for there is always a fiduciary relation between principal and agent.*2
However, the recent decisions with one accord have heralded the
additional element of agency as an exception to the general rule re
lating to dealings between director and shareholder. And one case
seems to have gone so far to find some basis for taking the case out
of the general rule that agency was found where in fact no agency
existed.*3 The reasoning of the court was that, although the di
rectors in their capacity as such are not the agents of the individual
shareholders, still, if they appoint themselves a committee to bring
in proposals for the transfer of the company's entire property, they
are the agents of the individual shareholders in this respect. Now,
accepting the court's hypothesis, that there is no relation of principal
and agent between director and shareholder, the mere act of the
directors in appointing themselves agents could not have had that
effect ipso facto. It is one of the cardinal principles of agency that
the relation can exist only at the will and by the act of the principal.**
"George v. Ford, 36 App. Dist. Col. 315; Allen v. Hyatt, 17 Dom. L. Rep.
7; Gadsden v. Bennetto, 23 Manitoba L. Rep. 33; Strong v. Repide, 213 U.
S. 419.
"George v. Ford, 36 App. Dist. Col. 315; Allen v. Hyatt, 17 Dom. L.
Rep. 7.
"Kimball v. Ranney, 122 Mich. 16o, 8o Amer. St. Rep. 548, 46 L. R. A.
4o3, 8o N. W. 992.
"Gadsden v. Bennetto, 23 Manitoba L. Rep. 33, 9 Dom. L. Rep. 719.
** 1 Mechem, Agency, [Ed. 2] 21o; Pole v. Leask, 33 L. J. Eq. 155; McGoldrick v. Willits, 52 N. Y. 612.
716
MICHIGAN LAW REVIEW
The report of the case discloses no act on the part of the share
holders, as principals, from which it could be inferred that they
appointed the committee of directors their own agents. Nor could
any agency be established through the acquiescence of the share
holders05 in the acts of the committee, for it affirmatively appears
that the shareholders did not even know of the existence of the com
mittee before parting with their shares.
A fair inference from the foregoing discussion would seem to be
that the recent decisions show a marked tendency coupled with a
desire to break away from the old rule that the purchasing director
owes no duty to disclose. The rule seems to be wearing away under
the process of judicial decision in the same manner as many other
of the more arbitrary rules of the common law.09
No doubt, the doctrine of special facts has led to just results in
the individual cases decided under it. However, it leads to uncer
tainty in the law. It is as essential that law should be certain as that
it should be flexible and just in individual cases.87 To correlate all
the special facts into one fundamental principle upon which all cases
could be determined would seem to be an impossible task. Perhaps
no more definite principle can be devised than that advanced by
Pomeroy08 and Perry00 as the fundamental guide post for all cases
"l Mechem, Agency, [Ed. 2] 289; Fowlds v. Evans, 52 Minn. 551.
" For examples, see, Rylands v. Fletcher, L. R.' 3 H. L. 33, distinguished
by Nichols v. Marsland. L. R. 2 Ex. Div. 1 ; Box v. Jubb, L. R. 4 Ex. Div. 76;
and also, Festing v. Allen, 12 Mees. & W. 279, distinguished by Astley y.
Micklethwait, 15 Ch. Div. 59.
" "Optima est lex, quae minimum relinquit arbitrio judicias; optimus
judex, qui minimum sibi." Bacon, Aphor1sms, 46; 1 Kent, Comm. 475-8; 1
Blackstone, Comm. 62.
" "Whenever two persons stand in such relation that, while it continues,
confidence is reposed by one, and the influence which necessarily grows out
of that confidence is possessed by the other, and this confidence is abused, or
the influence is exerted to obtain an advantage at the expense of the confiding
party,, the person so availing himself of his position will not be permitted to
retain the advantage, although the transaction could not have been impeached
if no such confidential relation had existed." 2 Pomeroy Eq. Jur. [Ed. 4],
956; Keith v. Kellam, 35 Fed. 243, 246.
M "Whenever two persons stand in such relation that confidence is neces
sarily reposed by one, and the influence necessarily growing out of that fact
is possessed by the other, and this confidence is abused or the influence is
exerted to obtain an advantage at the expense of the confiding party, the party
717
involving fiduciary relationships. But this is admittedly one of the

most ill-defined and elastic principles of the law.70 To decide ques
tions involving the duty of the purchasing director on the basis of
any such rule would, therefore, seem to be relegating the determina
tion of whether or not there is a fiduciary relation to the domain of
fact by severing from the case all consideration of the legal relation
of shareholder and director. There is clearly as much reason for
well-defined rules in the transfer and sale of stock as there is in the
case of negotiable instruments. The majority of the courts, there
fore, seem to be confronted with this interesting dilemma : By cling
ing to the old rule that there is no fiduciary relation between director
and shareholder, they have a clearly defined rule which leads to un
just results in the great majority of cases where it is applied; by
finding exceptions to this rule and following the special facts doc
trine, they may reach just results in individual cases, but clearness
and precisian in the law are sacrificed.
In view of the foregoing discussion, the writer submits that only
two of the recent decisions have followed the correct principle71 by
following the lead of the earlier Georgia72 and Kansas" decisions.
Both confusion and injustice seem to be avoided by starting with
the premise that there is always a fiduciary relation between director
and shareholder74 in the purchase by the director of the sharehold
er's stock.
Harold R. Sm1th.
so availing himself of his position will not be permitted to retain the ad
vantage." 1 Perry, Trusts, [Ed. 5] 2o9; Bohm v. Bohm, 9 Col. 1oo.
""Courts of equity have carefully refrained from defining the particular
instances of fiduciary relations in such manner that other and perhaps new
cases might be excluded." 2 Pomeroy, Eq. Jur. [Ed. 4] 957.
"Jacquith v. Mason, 99 Neb. 5o9; Dawson v. National Life Insurance
Company, 176 Iowa 362.
"Oliver v. Oliver, 118 Ga. 362.
" Stewart v. Harris, 69 Kan. 498.
" That the fiction of the corporate entity will not stand in the way of
such a principle, see, 27 Yale L. Jour. 731.
THE TRUST COMPANY IN MICHIGAN*

A TRUST COMPANY in Michigan is a financial and business
institution. It came into being, in this state as elsewhere, in
response to the need for an efficient and business-like organization
to administer estates and trusts of all kinds as a relief to the in
dividual executor, administrator and trustee. The ever increasing
complications of business and finance placed a burden upon the in
dividualthe relative, the friend, or the business associatewhich
he found he could not carry without considerable sacrifice either to
his own interests or to those of the trust. Those who create trusts
either by will, or private agreement, or otherwise, have come to feel
that it is not just to place such heavy responsibilities upon their rela
tives and business associates, and likewise to realize that their trust
duties could not 'be properly discharged without subjecting them to
serious inconvenience and probable loss in the handling of their own
personal affairs. The feeling has also become quite general that
business and investment problems are nowadays of such a character
as to require specially trained service to handle them properly, and
that it is neither wise nor right to leave their solution to wives,
daughters, sons or others, not equipped by experience or training to
solve them.
The Trust Company is a modern organization. It has developed
mostly during the past thirty years. Although individual companies
were chartered as long ago as one in New York in 1822, another in
that city in 183o, and two in Philadelphia in 1836, all of which are
still in existenceyet the development of "the trust company idea,"
as it is known at present, did not commence until about the time the
trust company act was passed in Michigan, in 1889.
Trust Companies vary somewhat in the character of the business
which they transact. The development of the purely trust business
the acting in various fiduciary capacitiesis a slow process, and it is
not very profitable. This has led to greater emphasis being placed
upon the building up of the financial or quasi-banking department of
the business. Thus it is that in most sections of the country, trust
companies are looked upon as banks and perform banking functions,
* That there is a necessary conflict of interests between lawyers and trust
companies the M1ch1gan Law Rev1ew does not believe. We are glad to pub
lish this paper by the President of the Detroit Trust Company.Ed.
TRUST COMPANIES
719
while the trust department is regarded as an incidental branch of

their business. In fact, there are many trust companies so-called
which are not trust companies at all, but transact only a banking
business, both commercial and savings. In Michigan, however, more
so perhaps than in any other state, they are rather closely limited to
purely trust business.
Trust Company Resources. According to the latest available com
pilation (June 3o, 1919) the Trust Companies of the United States,
about 2,25o in number, have total resources of about $12,5oo,0oo,oo0,
and total Capital, Surplus, and Undivided Profits of about $1,55o,ooo,oo0.
In Michigan, the emphasis having been placed, by law, upon the
trust business, and the quasi-banking powers restricted, naturally the
trust companies are few in number and small in total resources.
There are only eleven trust companies in Michigan, with a total
Capital at this time of $6,337,o2o, and total Capital, Surplus and Un
divided Profits of about $12,8oo,ooo, and total Resources of about
$4o,oo0,ooo.
Trust Departments of National Banks. There is another form
of organization for corporate trust service which has recently come
into existencethe Trust Departments of National Banks. Such
departments are authorized by the Federal Reserve Act, and may be
established by application to the Federal Reserve Board and the
issuing of a permit by that Board.
Under the Act, National Banks may exercise any or all of the
powers of trustee, executor, administrator, registrar of estates of
lunatics or in any other fiduciary capacity in which state banks, trust
companies or other corporations which come into competition with
National banks are permitted to act under the laws of the state in
which the National bank is located.
National banks exercising any or all of these powers are obliged
to segregate all assets held in any fiduciary capacity from the general
assets of the bank, and to keep a separate set of books and records
showing in proper detail all transactions engaged in under the au
thority of the Act. This is already the practice of trust companies
in Michigan and elsewhere. These books and records are open to
inspection by the Commissioner of the State Banking Department
to the same extent as those of trust companies. National banks can
MICHIGAN LAW REVIEW

not carry in their trust departments current funds subject to check,
or receive deposit of checks, drafts, bills of exchange or other items
for collection or exchange purposes. The bank is required to set
aside in the trust department United States bonds or other securities
approved by the Federal Reserve Board, for funds received in trust
awaiting investment, before it can use such funds in the conduct of
its business. If the bank fails, the owners of those funds have a lien
on the bonds or other securities so set apart in addition to their
claim against the bank. National banks must also make the deposit
with the State Treasurer required of trust companies for protection
of trust creditors.
Before issuing the permit to the bank to exercise these trust pow
ers, the Federal Reserve Board may take into consideration the
amount of capital and surplus of the bank and whether or not it is
sufficient under the circumstances of the case, the needs of the com
munity to be served, and any other facts that seem to it proper. The
Board, however, cannot issue a permit to a bank which has a capital
less than that required by the state law for trust companies.
The Board has also issued regulations governing the conduct of
the trust department. These regulations provide that the bank shall
establish a separate trust department and place it under the manage
ment of officers whose duties shall be prescribed by the Board of
Directors of the bank; that investments held in each trust shall be
kept separate from the other ; and that the securities must be placed
in the joint custody of two or more bonded officers or other em
ployees designated by the Directors of the bank. The regulations
also prescribe the manner in which trust funds shall be invested and
the investments approved. The trust department is subject to exam
ination by examiners appointed by the Comptroller of the Currency.
The Federal Reserve Board reserves the right to revoke permits to
exercise trust powers.
Permits have been granted up to April 1, 192 1, to twenty-seven
National banks in Michigan, but only a portion of them have estab
lished trust departments. The capital of these banks to which the
permits have been granted aggregates $8,355,ooo; Capital, Surplus
and Undivided Profits about $17,ooo,ooo; and total resources, all of
which is employed in the banking department, about $162,0o0,o0x5.
There are 1 1 1 National banks in the state of Michigan and it will
be noted that permits have been granted to, and trust departments
TRUST COMPANIES
721
established by, only a small proportion of them. The reasons for

this are that in this state, trust companies do not enter into competi
tion with the banks; that the capital requirements for trust com
panies, which must be met by National Banks desiring to establish
trust departments, are largely in excess of the capitalization of most
National banks ; that the directors of National banks have hesitated
to subject the bank to the infinite variety of liabilities involved in the
relation of trustee, against which the bank would be obliged to pro
tect itself by the employment of officers and employees of special
training and experience in this kind of business ; that transaction of
trust business places an additional burden of management upon the
shoulders of directors and officers ; and that the officers and directors
of National banks are in doubt as to whether trust departments in
the smaller towns or cities would yield earnings or revenue sufficient
to make their operation profitable.
I.
How the Trust Company 1s Organ1zed and Operates.
The Trust Company Act. Trust Companies in Michigan are

organized under Act 1o8 Public Acts of 1889, and the first trust
company in the state was incorporated during that year. The Act
contains the customary provisions covering the formalities of organ
ization common to corporations generally. The requirements and
features of the act which relate particularly to the trust company,
and which fix the character of its business, and prescribe its powers
and limitations, are as follows :
The required amount of capital stock is fixed by the law
and graded according to the population of the city in which
it is located, with a minimum of $15o,ooo and a maximum of
$5,ooo,ooo. Not less than fifty per cent of its capital, nor
more than $2oo,ooo in specified securities, must be deposited
with the State Treasurer as security for the depositors and
creditors of the company.
Its powers are as follows :
To take, receive and hold and repay, re-convey and dispose
of any effects and property, both real and personal, which may
be granted, committed, transferred or conveyed to it, with its
consent, upon any terms, or upon any trust or trusts whatso
ever at any time or times, by any person or persons, including
722
MICHIGAN LAW REVIEW

married women and minors, body or bodies corporate, or by
any court, including the federal courts, in the State of Mich
igan.
To take and accept by grant, assignment, purchase, trans
fer, devise or bequest and hold any real or personal estate in
trust in pursuance of the directions of any trust created in
accordance with the laws of this state or of the United States.
To act as agent or attorney for the transaction of business,
the management of estates, the collection of rents, interest,
dividends, mortgages, bonds, bills, notes and securities.
To act as agent for the purpose of issuing, negotiating, reg
istering, transferring or countersigning certificates of stock,
bonds or other obligations.
To -manage sinking funds of corporations and munici
palities.
To act as executor, administrator, trustee, receiver, as
signee, and guardian of minors, incompetent persons, lunatics
or any persons subject to guardianship.
To loan money upon real estate and collateral security.
To execute and issue its notes and debentures payable at a
future date, and to pledge its mortgages on real estate and
other securities as security therefor.
To receive on deposit for safekeeping and storage gold and
silverplate, jewelry, money, stocks, securities and other valu
able personal property, and to rent safes therefor.
To become sureties for administrators, guardians or other
trustees or persons.
To guarantee or insure to grantees the validity of titles in
real estate transfers.
The Act provides that nothing contained in it shall be construed

as giving the trust company the right to issue bills to circulate as
money, buy or sell bank exchange, or do a general banking business.
In case of appointment of the trust company by any court, the
company shall not be required to give any security except in the
discretion of the court, other than the deposit with the State Treas
urer already mentioned. The deposit with the State Treasurer must
be invested by the company in real estate mortgages or U. S. Gov
ernment or certain specified state and municipal bonds. The balance
of its funds may be invested in real estate mortgages, government,
TRUST COMPANIES
7*3
state or municipal bonds, or in such real or personal securities as the

directors of the company may deem proper.
The company shall keep on hand funds in an amount equal to at
least twenty per cent of its matured obligations and money due and
payable, three-fourths of which reserve may be kept in any bank or
trust company approved by the Commissioner of the Banking De
partment.
The foregoing are the salient points in the Act, the remainder of
the provisions relating to such matters as meetings of stockholders,
examination by the Commissioner of the State Banking Depart
ment, penalties for violation of the Act, proceedings as to the wind
ing up of the company, et cetera.
Typical Form of Organization. Under the powers thus granted by
the law, and as the result of about thirty years' experience, the trust
company in Michigan has developed a form of organization for
the efficient handling of its business which has become somewhat
standard in its character. While not precisely uniform in all com
panies, its general features are the same. It is departmental in
character, and in general these departments are as follows :
Trust Department.
Financial Department.
Bond Department.
There are other departments which individual trust companies
have established, not common to all trust companies in the state, viz :
Safety Deposit Department.
Public Accounting Department.
Abstract Department, including guaranteeing of titles.
So far as the writer knows, no trust company has established a
Surety Bond Department, this probably being due to the fact that
directors of trust companies are of the opinion that the liability in
volved in the relation of surety upon bonds is of such character and
extent that it would drive away rather than attract trust business.
Each of the foregoing departments, common to most trust com
panies in MichiganTrust, Financial and Bondis ordinarily in
charge of a Vice-President of the company, the President having
general supervision of all of them. The title of each department in
dicates its jurisdiction. How it serves the public and the lawyer will
be discussed later on.
MICHIGAN LAW REVIEW
724
The by-laws of most trust companies in Michigan provide for an

Executive Committee selected from the Board of Directors, this
Committee meeting more frequently than the Board, keeping more
closely in touch with the business of the Company, authorizing the
making of loans and trust investments and passing upon the more
difficult and intricate problems which arise in the operation of the
various departments.
The Trust Department, having the greater variety of business and
problems to handle, requires a larger and more expensive organiza
tion than either of the other departments. Generally the Secretary,
Assistant Secretaries and a Trust Officer assist in the management
of this department, aided by employees especially trained in the
handling of real estate, in fire, marine and other kinds of insurance,
in taxation, in the collection and analysis of business and corporate
statistics, in business questions which arise in the operation and
liquidation of industrial and other concerns, in accounting and book
keeping, et cetera.
In some cases the volume and extent of the corporation business
transacted through the Trust Department require the services of an
additional Vice-President of special ability and experience in the
operation of receiverships and supervision of industrial and other
corporations in which estates or trusts have a controlling interest,
and oversight of the discharge of the duties of the trust company as
trustee under mortgages securing large issues of bonds, involving
technical knowledge of certain lines of business.
The Vice-President in charge of the Financial Department, as a
rule, has the assistance of the Treasurer and Assistant Treasurers.
The organization of the Bond Department in charge of another
Vice-President who manages it, includes experts in the buying of
securities of all kinds, a manager of sales, and a force of salesmen.
Because of the variety and extent of detail involved in the trust,
financial and investment business, a considerable force of specially
trained clerks as well as bookkeepers, stenographers, et cetera, is re
quired, and these complete the organization of a typical trust com
pany in Michigan.
II.
How 1t Serves the Publ1c and the Lawyer.
Trust companies are a public-serving institution. They were

formed to meet a strong public need. Millions of dollars have been
TRUST COMPANIES
725
invested in their stock, and billions of dollars of trust funds and

property are being administered by them for individuals and chari
table organizations who are the beneficiaries. They represent the
highest type of modern fiduciary, and they have operated so efficient
ly and economically that their permanency is a settled fact. They
are rapidly succeeding individuals as a modern agency for the man
agement of property. As such, therefore, they are becoming recog
nized, in proportion as their proper functions are becoming more
clearly understood, as a substantial aid to the legal profession in the
discharge of their own particular duties to the community.
Therefore, the best interests of the public, as well as those of the
legal profession and the trust company, are promoted by co-opera
tion and mutual helpfulness. In some parts of the country where
these things have not been clearly perceived, there has been a feeling
on the part of the lawyer that trust companies, by advertising to
draw wills and to render service generally accepted as legal in its
nature, have not kept strictly within their natural field of operations.
As a result of careful consideration of this subject among them
selves, trust companies have discontinued these practices, and gen
erally throughout the country are now conducting their business
along lines which meet with the endorsement of the legal profession.
It is now being realized more and more that the accumulated ex
perience of trust companies proves of valuable assistance to attor
neys. As a result of extended experience, the trained officers of
trust companies have had opportunities to observe the operation of
trusts under a great variety of circumstances. They have encoun
tered and solved the most diverse problems raised by directions by
testators with reference to family affairs, education and maintenance
of children, investment of funds, operation of businesses, et cetera.
That accumulated experience, and the lessons drawn from it, have
been made available to lawyers and found by them a valuable guide
in advising their clients in respect to fiduciary and business matters,
and in the preparation of wills. This has been especially true with
respect to trust clauses, and deeds of trust.
By advertising through periodicals, newspapers, letters, booklets,
et cetera, trust companies are educating the people of their com
munities to create trusts, and this means the drawing of wills, deeds
and other instruments by lawyers.
In all communities there are many cases where men have either
726
MICHIGAN LAW REVIEW
failed to make wills, or by a simple form of will, have left property

to wives inexperienced in business, or minor children, or sons and
daughters of immature experience, with the inevitable result of
waste, loss and suffering. Trust companies have, at considerable
expense, pointed the way and afforded the means of avoiding these
losses by stimulating the creation of trusts under willsand likewise
by trust deeds executed during the maker's lifeunder which prop
erty is safeguarded, family interests protected, wives, sons and
daughters educated in the proper use of money, and loss and suffer
ing avoided. These forms of wills and trust deeds must be drawn
with great care in order to be effective and properly serve the
maker's purpose, and their preparation calls for legal knowledge of
high order. The development of the trust company, and its educa
tion of the public through advertising, and otherwise, has led and will
increasingly lead to a greatly increased demand upon attorneys for
necessary legal service of this important charactera service which
is of incalculable benefit to their clients.
As stated heretofore, the trust company is essentially a business
and investment institution, and as such serves the lawyer in many
ways. The business of the one and the profession of the other are
in reality co-operative and mutually helpful. In its capacity as a
public-serving corporation, the trust company offers to the lawyer
the facilities of its trust and bond departments in a manner which
enables the lawyer to serve his client with greater efficiency and
satisfaction to both.
From the trust company's experience in investment problems, it
aids the lawyer, through its bond department:
In passing upon the great number and variety of stocks and
bonds offered to his clients ;
In reporting the market value of securities ;
In furnishing information as to rights to subscribe to, or
conversion privileges attaching to, stocks and bonds ;
As to sinking fund provisions ;
In furnishing of financial statistical information ;
In supplying information respecting the various issues of
Liberty and other Government bonds, as well as municipal,
public utility, industrial, and other bonds ; and in many other
ways.
TRUST COMPANIES
7*7
Through its trust department, the trust company is of valuable

assistance to lawyers :
By furnishing them with data and information as to the re
sults of operation under typical trust clauses in wills and
deeds of trust ;
With reference to safeguarding and placing limitations
upon investment of trust funds ;
In the framing of provisions for directing disbursements of
proper character for the protection of trust property;
In preparing the directions for the handling of amortization
of premiums paid for securities and discounts, with reference
to the rights of life-tenant and remainderman ;
In stating the limitations upon the powers of trustee that
may be advisable, and such as are practically enforcible ;
In the determination of difficult questions of accounting,
particularly where the interests of life-tenant and remainder
man are involved ;
In giving the lawyer the benefit of its experience, through
its officers and specially trained employees, in the handling of
real estate belonging to its trusts, and problems relating #to
fire, marine and other kinds of insurance, in taxation, in busi
ness questions arising in the operation and liquidation of in
dustrial and other concerns, and in many other trust and
fiduciary relations, as trustee under mortgage, registrar and
transfer agent, et cetera.
Trust companies have consistently maintained an attitude of help
fulness to the legal profession in all these respects, and out of this co
operation has grown a service to the public which has amply justified
the policy of co-operation between these two great public-serving
agencies and professions.
Ralph Stone.
Detroit, Michigan.
M1ch1gan
Law
Rev1ew
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ASSOCIATE EDITORS
Henry M. Bates
Edson R. Sunderland
E. C. Goddard
Joseph H. Drake
John B. Wa1te
Jamfs I. McCl1ntock, of Colorado
W1ll1am C. O'Keepe, of Michigan
D. Hale Bxaxe, of Michigan
Charles E. Turner of Illinois
NOTE AND COMMENT
Freedom of Press and Use of the Ma1ls.Strangely enough, the First
Amendment to the Federal Constitution, although it guarantees against fed
eral attack highly important and fundamental rights, has received very little
authoritative interpretation by our courts. It remained for the Great War
and conditions following in its train to bring before that tribunal almost the
first really important controversies relating to freedom of press and of speech.
The case of U. S. ex rel. Milwaukee Social Demoeratic Publishing Company,
Plaintiff in Error, v. Postmaster-General Albert S. Burleson, decided
March 7, 1921, is the latest of a series of notable cases concerning this im
portant matter. The case, however, adds little to the development of the
subject by the court in the preceding cases in this group, which have been
reviewed in an article by Professor Goodrich, 19 M1ch1gan Law Rev1ew,
pages 487-5o1.
In the group of recent cases referred to, a divergence of opinion among
the judges themselves had appeared. In Schenck v. U. S., 249 U. S. 47, 39
Sup. Ct. Rep. 247, in the unanimous opinion written by Mr. Justice Holmes,
the test of liability for speech was expressed as follows :
NOTE AND COMMENT
7*9
"The question in every case is whether the words are used in such cir
cumstances and are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that Congress had a right
to prevent."
This would seem to be a definite rejection of "the tendency" or "in
direct causation" tests and the court adhered to this view in two cases de
cided shortly thereafter. Frohwerk v. U. S., 249 U. S. 2o4, 39 Sup. St. Rep. 249;
and Debs v. U. S., 249 U. S. 211, 39 Sup. Ct Rep. 252. The Debs ca.se, particu
larly, has been criticized on the ground that it did not apply the test as stated
above to the facts in the case. (See references in Professor Goodrich's article
above referred to, 19 M1ch. L. Rev. 487, 492. See also the book of Professor Z.
Chafee, Jr., "Freedom of Speech," 9o-93.) Other cases in which the court
appeared to adhere to its statement of the test in the Schenck case are re
ferred to, 18 M1ch. L. Rev. 49o, n. 12. But on March 8, 192o, the court an
nounced the decision in Pierce v. U. S., 252 U. S. 239, 4o Sup. Ct. Rep. 2o5,
in which as pointed out by Professor Goodrich in the article before referred
to, Justice Pitney, writing the opinion for the court, declares the doctrines
known as "indirect causation" and "constructive intent" as the basis of lia
bility. It will be seen from this brief review of the cases that the court is
divided in opinion and that it cannot be said with confidence that any test
of liability has been definitely and permanently adopted by the court.
In the case decided March 7th, 1921, freedom of the press is discussed
especially by Justice Brandeis, in a vigorous and able dissenting opinion, but
the case has brought the court no nearer to a final position as to what is the
"freedom of press" guaranteed by the First Amendment. A majority of the
court sustain the Postmaster-General in revoking the second-class mail priv
ilege which had been granted to the publisher of the Milwaukee Leader, some
years before. That revocation was put upon the ground that as shown by the
utterances of the paper during the six months after the United States had
entered the war, the journal was seditious, violative of Section I of Title XII
of the Act of June 15, 1917, known as "The Sedition Act"; that it had ceased
to be "mailable matter" under the Congressional law providing for the classifi
cation of mails; and that the Postmaster-General's decision as to these points
was conclusive, unless a wanton or very clear case of abuse of authority by
him were shown.
The alleged objectionable matter printed in the newspaper published by
the relator in this case is characterized by Mr. Justice Clark as "not designed
to secure amendment or repeal of the laws denounced in them as arbitrary
and oppressive, but to create hostility to, and to encourage violation of,
them. * * * Without further discussion of the articles, we can not doubt
that they conveyed to readers of them, false reports and false statements with
intent to promote the success of the enemies of the United States, and that
they constituted a willful attempt to cause disloyalty and refusal of duty in
the military and naval forces and to obstruct the recruiting and enlistment
service of the United States, in violation of the Espionage Law, and that
therefore their publication brought the paper containing them within the
express terms of Title XII of that law, declaring that such a publication shall
73
MICHIGAN LAW REVIEW
be 'non-mailable' and 'shall not be conveyed in the mails or delivered from

any postoffice or by any letter carrier.' "
The excerpts from the paper quoted by Mr. Justice Clarke seem to bear
out all that he says of them and it can scarcely be doubted that they were
seditious and that they did tend to obstruct the government in the prosecu
tion of the war. The question remains, however, whether the PostmasterGeneral had authority to deal with the matter as he did. In his dissent, Mr.
Justice Brandeis denies that Congress had conferred authority upon the Post
master-General to revoke or suspend the second-class mail privilege in such
case, and in this respect the dissent seems to be upon solid ground. There
are at least three distinct questions in the case:
First.Were the expressions in the Milwaukee Leader, referred to by the
court, seditious or otherwise illegal?
Second.If there were seditious expressions in the paper, could it be
excluded altogether from the mails, in futurof
Third.Did the Postmaster-General have authority to revoke the second'
class mailing privilege because of seditious or illegal utterances ?
The majority of the court answer the first and third of these questions
in the affirmative and so decide the case. Mr. Justice Brandeis answers the
second and third in the negative, and discusses but does not finally answer
the first, obviously because he does not think it necessary to a correct decision.
If we concede that the utterances complained of were seditious, it by no
means follows that the Postmaster-General had the right to take the action
adopted in this case. No statute expressly gives him such authority. Con
gress has classified the mail into first, second, third and fourth classes, not
with reference to the legal, ethical, or patriotic qualities of written or printed
matter, but with reference to the size, periodicity and other external or me
chanical attributes. There would seem no warrant whatever for the revoca
tion of a granted privilege in one of these classes, for reasons which had
nothing whatever to do with the classification. True, the permit issued recites
"that the authority herein given is revocable upon determination by the de
partment that the publication does not conform to law"; but a revocation
limited only to one class of mail, to be valid ought to be based upon some
violation of law touching the basis of the particular class of mail affected. A
violation of law by a publisher, which goes to the fundamental character of
the publication, may give ground for prosecution or for total exclusion from
the mails ; but to permit the Postmaster-General to have final determination
in such decision and action as was involved in this case would open the door
perhaps to all of the dangers pictured by Mr. Justice Brandeis in his vigorous
opinion.
Upon the larger question as to whether the practical suppression of this
paper involved an illegal abridgment of freedom of the press, it may well be
doubted whether Mr. Justice Brandeis is upon sure ground. What would
be permissible freedom of press and speech in peace time obviously would
not necessarily be such during the emergency of a world war. Those who
argue that constitutional guaranties, including the First Amendment, imply
MICHIGAN LAW REVIEW

stitutions on the ground, inter alia, that it constituted a taking of property
without due process of law. In holding the act invalid the court based its
decision squarely upon the broad ground that the imposition upon the em
ployer of liability without fault was in derogation of the due process clause
of the State Constitution, and that the statute was not justifiable as a valid
exercise of the police power because it did not tend to contribute directly to
the promotion of the general welfare. The act in question, which provided
for direct payment by employers to their injured employees of the benefits
provided therein, was also subject to the same objection which later proved
the stumbling block of the Montana act, namely, that the employee's common
law remedies against the employer were preserved, thus exposing the em
ployer to a double liability. See Cunningham v. Northwestern Improvement
Co., post. But the court in the Ives Case made no point of this feature. Nor
was the finding in this case in any sense an adjudication of the validity of
the act under the 14th amendment of the Federal Constitution, although it
has been sometimes cited in that regard. The court expressly say that Noble
State Bank v. Haskell, 219 U. S. 1o4, is controlling as to the federal aspect of
the case, and further that a finding of invalidity under the State Constitution
is sufficient for the purposes of the decision.
Four months after the decision in the Ives Case, the Supreme Court of
Washington handed down a decision upholding the compensation act of that
state, (Laws of 1911, p. 345), in State, ex rel. Davis-Smith Co. v. Clausen
( 191 1 ) , 65 Wash. 156. Instead of the direct payment plan of the New York
act this statute provided for compulsory payments into a state insurance fund.
The only effect of this difference, as far as the constitutional question was
concerned, was to give rise to an additional objection to the act which could
not be made to the New York law, namely, that the statute takes the prop
erty of one employer to pay the obligations of another. The court concedes
at the outset that there is a basis in fact for both this objection and that
other objection which was finally controlling in the Ives Case, that the statute
imposed liability without fault. "But," the court goes on to say, "These con
tentions do not furnish an absolute test of the validity of the act. * * * The
test of the validity of such a law is not found in the inquiry, Does it do the
objectionable things? but is found rather in the inquiry. Is there no reason
able ground to believe that the public safety, health or general welfare is
promoted thereby?" In holding that public welfare was promoted, by a re
moval of the burden of industrial injuries from the workman and his depend
ents, thus lessening indigency, and placing it upon the employer and through
him, by means of adjustment of the prices of his commodity, upon the con
suming public, the court takes a stand sharply at variance with that of the
New York Court of Appeals in the Ives Case. It is not necessary to the
validity of a statute under the police power, say the Washington Court, that
it should be "directly designed to conserve health, safety, comfort, peace and
order," but on the other hand, quoting from Noble State Bank v. Haskell,
supra, "An ulterior public advantage may justify a comparatively insignificant
taking of private property for what, in its immediate purpose, is a private use."
The Montana act, (Laws of 19o9, c. 67, p. 81), was held invalid in Cun-
734
MICHIGAN LAW REVIEW
York act, was passed pursuant to the authority of a constitutional amend

ment, was sustained in Western Indemnity Co. v. Pillsbury (1915), 17o Cal.
686. It provided for compulsory direct payment, with an option to insure in
either a state fund or a private indemnity company. The court directs atten
tion to the distinction taken in the Ives Case between the fellow-servant, con
tributory negligence and assumption of risk rules on one side, and the rule
that fault on the part of the employer must be shown, on the other. "Why
this distinction?" asks the court. "Is the latter doctrine any more sacred or
inherently necessary than any of the former?" The court thinks not, and is
clear that there is no fundamental inhibition on the legislature in the one case
any more than in the other.
The first adjudication on any of these statutes in the Supreme Court of
the United States was the decision in New York Cent. Ry. Co. v. White
(1917), 243 U. S. 188, upholding the second New York act. The court con
cedes that there is a taking, but justifies it as a proper exercise of the police
power of the state. "And for this reason: The subject-matter * * * is the
matter of compensation for human life or limb lost or disability incurred in
the course of hazardous employment, and the public has a direct interest in
this as affecting the common welfare. * * * When the individual health,
safety and welfare are sacrificed or neglected, the state must suffer. (Holden
v. Hardy, 169 U. S. 366.) * * * One of the grounds of its [the public's] con
cern with the continued life and earning power of the individual is its interest
in the prevention of pauperism, with its concomitants of vice and crime." In
holding that the statute is not arbitrary or unreasonable the court follows the
reasoning of the Washington Court in the Clausen Case, namely, that industry
itself is responsible for the injuries to workmen and should therefore stand
the burden imposed by such injuries. "The loss of earning power, * * *
however it may be charged up, is an expense of the operation, as truly as
the cost of repairing broken machinery or any other expense that is ordinarily
paid by the employer."
The Washington act was sustained by a divided court in Mountain Timber
Co. v. State of Washington (1917), 243 U. S. 219, the Chief Justice and Jus
tices McKenna, Van Devanter and McReynolds disenting. If this act merely
substituted one form of employer's liability for another the points raised
against it would be sufficiently answered by the decision in New York Cent.
Ry. Co. v. White, supra, but the Washington law goes farther and enforces
contribution from all designated employers regardless of whether injuries
have occurred to their employees or not. This, in its practical operation, may
often require the most careful employers to pay indemnity to the injured
employees of their negligent competitors. The answer which the court makes
to this objection is that the nature of the industries embraced in the act is
such that there cart, in the nature of things, be no assurance of immunity
from personal injuries, even in the most carefully managed plants. It there
fore follows, in view of the unforeseeability of such accidents and the prac
tical inability to insure against them by careful management, that it is neither
arbitrary nor unreasonable to place the burden of such accidents upon the in
dustries as a whole, compelling each unit to contribute its ratable share. To
736
MICHIGAN LAW REVIEW
rival in business. To this objection the court in the Mountain Timber Case
answer that such accidents are inevitable even in the most carefully managed
plants and that it is therefore reasonable to impose the burden upon the in
dustry as a whole. With all due respect to the learned justice who delivered
the opinion, the conclusion seems too broad to be sustained by the premise.
Granting such injuries are inevitable, their frequency is certainly much higher
in a negligently managed plant than in one which is carefully managed. The
frequency of accidents can hardly be said to be uncertain in any given plant
as compared with any other plant. But even if such uncertainty does exist,
the mere fact that such a comparison will show a higher frequency of acci
dents in one plant than in another of approximately the same size and equip
ment would seem to make it unreasonable to require contribution on any such
basis as the payroll of the plant.
The case of a tax on dogs to create a fund to reimburse sheep owners
for sheep killed by dogs offers no analogy, for here there is a very real
difficulty, if not an impossibility, in tracing the source of the damage sus
tained. The same may be said of the automobile license case, where it is
apparently impossible to determine in what proportion various automobile
owners enjoy the highway.
It has been suggested, (65 U. op Pa. L. Rev. 682), that the Noble State
Bank Case is distinguishable by reason of the mutual interdependence of
banks, by reason of which careless management in any one may ruin any
other. But it is believed that as a matter of practical experience it is gen
erally, if not always, the bank in which negligent or dishonest methods arc
followed that becomes insolvent. This basis of distinction would therefore
seem to be without merit. It is also pointed out in the same source that the
regulation to which banks are subject guarantees a certain minimum of
careful management in all banks, which is not the case in industry generally.
This objection can be overcome, and has already been overcome to a large
extent, by legislative regulation of industry, principally by way of requiring
the adoption and use of mechanical safety devices and other cautionary and
preventative measures. Another writer has attempted to distinguish the cases
on the ground that a bank can cause but one loss, it being then insolvent,
while a particular industrial plant may continue to operate and cause succes
sive losses. See 84 Cent. L. Jour. 245. This distinction, if it be one at all,
goes simply to the matter of degree, and it is impossible to see why such a
difference should make the arrangement arbitrary in one case and not in the
other. It would seem that, although the Noble State Bank Case was a some
what stronger case, it properly was considered as controlling in the Mountain
Timber Case. What has been said in regard to the latter case is of course ,
true with regard to Thornton v. Duffy, supra, which was decided on grounds
of stare decisis.
That the decisions in these cases do effect an extension of the limits of

the police power and reduce the compass of rights protected by the due
process clause of the constitution can hardly be doubted. It may be said, and
not without a semblance of reason, that such decisions effect an encroach-
738
MICHIGAN LAW REVIEW
action, and that where the company, either directly or through its agents, is
negligent in this respect, it cannot avoid responsibility by the fact that the
application had not been received and acted upon prior to the applicant's
death. This decision was favorably commented on in a note in 27 Harv. L.
Rev. 92. See also a note in 11 M1ch. L. Rev. 6o6, where the writer, in com
menting on the Duffic case, says, "but the novel feature of this case is the
holding that an action cx delicto lies against the insurer. It would be a
strange doctrine if ordinary private parties were held liable for negligence in
failing to accept or reject a proposed offer." And indeed that does present a
logical difficulty which the Iowa court apparently overlooked. An application
for insurance is in reality nothing more than an offer on the part of the
applicant to enter into a contract with the company, and it is difficult to see
why the negligent delay of the company in failing either to accept or reject
it should give rise to a tort liability for such delay. It would seem that the
same difficulty would prevent a recovery in cases like the Boyer case, above
cited, but the question does not appear to have been considered.
But a greater obstacle in the way of a recovery in life insurance cases was
brought out by the court in a recent Illinois decision. Bradley v. Federal Life
Ins. Co., 129 N. E. 171. There the applicant was solicited by an agent of the
defendant company to take out an accident policy. He accordingly filed an
application and paid a sum of money to keep the policy in force for a period
of three months. The agent negligently delayed in forwarding the applica
tion, and in the meantime the applicant was accidentally killed. The admin
istrator of his estate brought the action in tort to recover the amount of in
surance which the decedent had applied for, basing his claim on the negligence
of the agent. It was held that no right of action could accrue or survive to
the administrator. The difficulty which the court deems insurmountable is
that if any right of action accrued at all, which point the court declines to
decide, it would accrue to the applicant, and such a right of action could not
survive his death. In commenting on DVffie v. Bankers Life AsJn., supra,
the court says, "the question of the action accruing or surviving does not
appear to have been raised." Indeed if the point had been raised it would
be difficult to justify the decision on any logical basis.
There is no question but that the action, if any does accrue in such a
case, must be in tort, for clearly there is no contractual relationship, either
express or implied, between the parties. The overwhelming weight of au
thority is that the insurer is not liable ex contractu for such delays. N. W.
Mutual Life Ins. Co. v. Ncafus, 145 Ky. 563; More v. N.
Bowery Ins. Co.,
13o N. Y. 537; Brink v. M. & F. M. N. Ins. Ass"n., 17 S. D. 235. Further
more it is clear that the action would accrue to the applicant, if to anyone,
and under the well established rule that tort actions do not survive, it is
indeed difficult to see how the administrator could logically be held to have a
cause of action. Even to hold that a cause of action accrues to the applicant
is impossible to justify on any logical basis, and a holding, not only that such
a right of action accrues, but also that it survives the death of the applicant,
is a doctrine not in conformity with reason or sound legal principles.
P. W. G.
740
MICHIGAN LAW REVIEW
and moreover it invades the rights of the individual to engage freely in busi
ness; for those reasons it is involid. Frost v. Chicago, 178 Ill. 25o. The real
purpose of the law seems to be to aid the domestic producer of eggs, by
appealing to the prejudices of people against eggs produced in a foreign land.
The state may not under the guise of the police power enact laws which do
not pertain to police purposes, but which do impose onerous burdens on busi
ness. Ex parte Hayden, 147 Cal. 649. Upon these grounds a similar statute
regulating the sale of foreign eggs was held unconstitutional in Matter of
Foley, 172 Cal. 744. In State v. Jacobson, 8o Or. 648, such a statute was held
to be unconstitutional as being in conflict with the commerce clause of the
constitution.
The power to regulate foreign commerce is exclusively in the Congress
of the United States. Henderson v. New York, 92 U. S. 259. The statute in
the principal case deals with a recognized commodity of international com
merce and places restrictions upon its sale. It discriminates against goods of
foreign origin by reason of their origin alone. The restrictions placed upon
the sale of foreign eggs must of necessity interfere and obstruct the freedom
of transportation and exchange between this and foreign countries, which
such articles on their merits would otherwise have. Such state interference
with foreign commerce is unjustified. Welton v. Missouri, 91 U. S. 275. The
decision in the principal case in dealing with this problem of interference with
foreign commerce, considered the egg after reaching the hotel or restaurant,
as no longer an article of foreign commerce. But unless the commerce clause
could prevent such discrimination, the power of Congress to regulate foreign
commerce exclusively would be incapable of enforcement. The power, how
ever, does reach to the interior of every state so far as it is necessary to
protect products of other countries from discrimination by reason of their
foreign origin. Guy v. Baltimore, 1oo U. S. 434. To enforce this statute
would be in effect to permit the state to discriminate against or prohibit in
directly the importation of foreign eggs. This cannot be allowed. Collins v.
New Hampshire, 171 U. S. 30. The power of Congress to regulate commerce
does not effect the surrender of the police power of the state. Where the
purpose is proper and the law does not directly interfere with commerce, the
police power of the state may be exercised. Thus a Massachusetts statute to
prevent the manufacture or sale of oleomargarine colored to imitate butter,
was held a valid exercise of the police power to prevent deception and cheat
ing of the public, although it did interfere indirectly with interstate commerce.
Plumley v. Massachusetts, 155 U. S. 461. As shown, there was no valid exer
cise of the police power in the form of the statute involved in the principal
case, therefore the interference with foreign commerce there attempted was
unjustified. The Washington court has failed utterly to apply properly the
well defined principles controlling the exercise of the police power and the
interference with foreign commerce by the state. The decisions in Matter
of Foley, supra, and State v. Jacobson, supra, holding contra to the principal
case, are sound.
J. P. T.
742
MICHIGAN LAW REVIEW
Automob1lesStatute G1v1ng Veh1cle Approach1ng from the R1ght

the R1ght of WayV1olat1on of Statute as Contr1butory Negl1gence
Per Se.A Minnesota statute provides that the driver of any vehicle ap
proaching an intersection shall give the right of way to any other vehicle
approaching from his right. In an action to recover for damage to his car
resulting from a collision with the defendant's car at an intersection, the
plaintiff's own testimony demonstrated that the defendant's car was approach
ing from the plaintiff's right. Held, that the plaintiff's proceeding in violation
of the statute was contributory negligence as a matter of law. Lindahl v.
Morse, (Minn., 1921), 181 N. W. 323.
The decision merely follows the general rule that violation of a statute
is negligence per se. Travers v. Hartman, 28 Del. 3o2, (riding a bicycle down
the left side of the street) ; Donovan v. Lambert, 139 Ill. App. 532, (driving
a buggy down the wrong side of the street). However, the violation of the
statute must be the proximate cause of the injury. Coffin v. Laskaw, 89
Conn. 325; Reynolds v. Pacific Car Company, 75 Wash. 1. A distinction is
sometimes drawn between violations of statutes and violations of city ordi
nances, the latter violations being merely prima facie evidence of negligence.
Scott v. Dow, 162 Mich. 636.
Bount1esDrafted Man Inducted 1nto M1l1tary Serv1ce but Rejected
at Cantonment Not Ent1tled to Bonus.The Public Laws of Rhode Island,
Chapter 1832, Section 2, provided that a bonus be granted "To each * * *
enlisted man * * * who was mustered into the federal service and reported
for active duty on or after April 6, 1917, and prior to November 11, 1918."
Plaintiff was inducted into service during this period but was promptly re
jected upon reaching camp because of bad teeth. Upon petition for a writ of
certiorari praying that the record of the decision of the Soldiers' Bonus Board
disallowing the plaintiff's application for a bonus be quashed, it was held, that
plaintiff was never mustered into the service within the meaning of the
statute and therefore the plaintiff was not entitled to a bonus. Bannister v.
Soldiers' Bonus Board, (R. I., 1921), 112 Atl. 422.
As pointed out in Tyler v. Pomeroy, 9o Mass. 48o, "as late as the reign of
Charles II, the greatest lawyers in England overlooked the distinction be
tween martial and military law,between the military rule, not limited to
the army, which prevails in time of war, when the civil laws have lost their
force, and the military discipline, necessary to the government of an army
at all times." It is true, as plaintiff contended, that if he had refused to obey
the order to report at camp after he had been inducted into service by the
local draft board he would have been liable to punishment as a deserternot
because he had been "mustered into service," howeve1l but because he was
subject to military law and regulations as provided in Section 2 of the
Selective Service law. The fact that plaintiff had received a $6o bonus under
the National Soldiers' Bonus Act is not controlling, for the provisions of that
act are different from the provisions of the statute construed in the instant
case. The federal bonus act contains no provision that the applicant must
have been "mustered into the federal service." The interpretation put upon
744
MICHIGAN LAW REVIEW
since it was held, that a railroad company is only liable for the failure to
exercise ordinary care in seeing that the movable hassocks provided in a chair
car do not project into the aisle. Bassell v. Hines, (C. C. A., 6th Circuit,
December, 192o), 269 Fed. 231.
In general the common carrier of passengers is liable for the failure to
exercise the highest degree of care and prudence consistent with the exercise
of its business. Memphis St. Ry. Co. v. Bobo, 232 Fed. 7o8; Meyer v. Sr.
Louis Co., 54 Fed. 116. The basis of this seems to be that when the pas
senger delivers himself into the custody of the carrier, he submits himself
to his care and relies upon the carrier's protection from all the hazards of the
journey. Indianapolis Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898. Since the
basis of this rule is protection of the passenger from the dangers peculiarly
incident to the instrumentality of transportation, the reason for the rule ceases
when questions arise as to liability for the trifling dangers that are found
upon the railroad car in the same way that they might be present in the walks
of every-day life. Stumbling over a hassock which is under the control of
the passenger takes away the responsibility that is present in the case of those
elements of travel that are within the sole control and management of the
carrier. Hence the general weight of authority supports the principal case in
holding that only ordinary care need be exercised by the carrier in the cases
of obstructions placed in the aisle and within the control of passengers.
Thus, baggage left in the aisle and causing injury places no liability on the
carrier unless there has been actual notice to the carrier's servants of its
presence there, or it has been there such a time as to imply constructive notice.
Burns v. Penn. R. Co., 233 Pa. 3o4; Palmer v. Penn. Co., 11l N. Y. 488, 18
N. E. 859; Atkinson v. Dean, 198 Ala. 262, 73 So. 479. On the other hand, if
it appears that the carrier has had time to notice the presence of the baggage,
as in Chicago and A. R. Ry. Co. v. Buckmaster, 74 Ill. App. 575, where a bag
was left in the aisle two hours, or where the porter of the car has had actual
notice of the presence of the bag in the aisle, the carrier has been held liable
for the injuries resulting therefrom. Levien v. Webb, 61 N. Y. Supp. H13.
In only a few cases are there any intimations of a different rule from that in
the principal case. In Heineke v. Chi. Ry. Co., 279 Ill. 21o, 116 N. E. 761, a
higher degree of care seems necessarily implied from the statement of the
court to the effect that if the carrier might have known of the presence of
the baggage, it would be liable. And in Pitcher v. Old Colony Co., 196 Mass.
69, 81 N. E. 876, the statement of the trial court that the carrier must exercise
"the highest degree of care consistent with the practical carrying on of its
business" was not criticised. For a collection of cases of this type, see 13
L. R. A. (N. S.), 482, and 43 L. R. A. (N. S.) 1o5o.
Carr1ersRate Regulat1on: F1x1ng Rates on S1ngle Class of Com
mod1t1esSuit to restrain the railroad from receiving any other compensation
for carrying certain classes of property than that specified in the order of the
State Railroad Commission. The railroad claims that the order did not allow
sufficient revenue to reimburse it on such commodities, and yield a fair re
turn. Plaintiff claims that revenue from whole intrastate business of de-
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MICHIGAN LAW REVIEW
under the Fourteenth Amendment, if the case were before them. In Green
v. Prazier, a statute creating a state bank, mill and elevator association, and a
home building association, under the authority of the constitution of the
state, was held valid, considering the peculiar condition of the state. The
court says, "With this united action of people, legislature and constitution,
wc are not at liberty to interfere unless it is clear beyond reasonable contro
versy that rights secured by the Federal Constitution have been violated."
This would seem to be the rule even where there is no sanction by the state
constitution. If so, another strong case is Jones v. Portland, 245 U. S. 217,
where a municipal wood and coal yard, authorized by statute alone, fuel to
be furnished at cost to buyers, was upheld. To be sure, the court considered
it a means of furnishing heat, and sufficiently analogous to furnishing light
and water to be a public purpose. Massachusetts has held municipal fuel
yards to be not a public purpose; Opinion of the Justices, 155 Mass. 598,
Opinion of the Justices, 182 Mass, 6o5. See Baker v. Grand Rapids, 142 Mich.
687. To determine whether or not a particular tax is for a public purpose,
the direct benefit to the public should be taken into account, also a considera
tion of what is feasible for the government to do, under existing conditions;
i. e., whether the particular function could not be better done by private in
dividuals, and also, whether conditions, under which it has been considered
unfeasible have changed. See Loan Association v. Topeka, 2o Wall. 655,
Opinions of the Justices, supra, and in 211 Mass. 624. A county cement plant,
without a constitutional provision authorizing it, was held not to be a public
purpose in Los Angeles v. Lewis, 175 Cal. 777. Allowing municipal water
works to manufacture ice was held to be a public purpose in Holton v. Camilla,
134 Ga. 56o. In Union Ice and Coal Co. v. Ruston, 135 La. 898, a municipal
ice plant was held not a public purpose, but the court said, "no one would
contest the right * * * if the town were of proper size for such a thing,"
under a state constitution requiring "strict" public purpose, for municipal
undertakings. North Dakota v. Nelson Co., I N. D. 88, under constitutional
prohibition against taxing for aid of individuals except for necessary support
of the poor, a statute authorizing distribution of seed corn to needy farmers
on credit, in time of drouth, was held valid. Jones v. Portland, Green v.
Prazier, supra, and the principal case seem to show a tendency towards pater
nalism, for these undertakings seem to be peculiarly fitted for private under
taking, although municipal fuel yards may be perfectly proper. If a state
can be permitted to operate cement plants, there seems to be little it could
not do.
Cr1m1nal, LawAssault w1th Intent to RobClatm of Ownersh1p.
Claiming that Green owed him $r5o, defendant demanded payment at the
point of a pistol, and upon Green's saying that he had nothing, defendant hit
him on the head with the pistol. Held, if defendant in good faith believed
that Green owed him the money, his offense was not assault with intent to
rob. Barton v. State. (Tex., 1921), 227 S. W. 317.
It is well settled that the taking, by force or putting in fear, of specific
property under bona fide claim of right thereto, is not robbery, Glenn v.
75
MICHIGAN LAW REVIEW
used to date the inception of a cause of action arising from the wrong and
the consequent beginning of the period of limitation. If, however, we admit
that each day's concealment of the fraud is a new wrong, we would have a
new cause of action every day so long as the concealment continued. In the
instant case we have evidence of the concealment of the wrong within the
statutory period, in the refusal of the defendants to give to the plaintiffs
access to the defendant's mine. The Michigan court has decided, in Groendal
v. Westrate, (1912), 171 Mich. 92, that the plaintiff's action for malpractice
of her physician was not barred by the statute, although the cause of action
arising from the initial negligence of the physician was barred, because with
in the statutory period he had "fraudulently and purposely concealed from
her the nature of her injury." If the "fraudulent concealment" of the statute
(Act No. 168, Pub. Acts 19o5, being section 9729, 3 M1ch. Comp. Laws, as
amended), were generalized as a "repeated wrong," which would give rise
to a new cause of action arising on the occurrence of such a wrong, the bar
of the statute of limitations would be removed, whether the wrong were an
injury to land, as in the instant case; an injury to the person, as in the mal
practice case, Groendal v. Westraic (supra) ; or an injury to reputation, as in
the slander or libel cases, Dick v. Northern Pac. Ry. Co., (1915), 86 Wash.
211. Cf. 18 M1ch. L. Rev. 679; 19 M1ch. L. Rev. 381.
Ev1denceCr1m1nal LawProof of Nonconsent by C1rcumstant1al
Ev1dence.In a prosecution for knowingly and unlawfully taking or killing
the cattle of another, no direct evidence of the owner's nonconsent was of
fered though the owner was present at the trial. The defendant moved for
a directed verdict on the ground of a lack of proof as to the nonconsent of
the owner to the killing. Held, motion denied as there were facts from which
the nonconsent could be inferred. State v. Parry, (N. Mex., 192o), 194
Pac. 864.
The crime in the principal case, like that of larceny, rests on the nonconsent of the owner to the taking or the killing, otherwise the act would
be lawful. It is the lack of consent that renders the act unlawful. This nonconsent of the owner must be shown in order to obtain a conviction, for
otherwise no larceny would be established, Garcia v. State, 26 Tex. 2o9. As
to what kind of evidence is necessary to establish the nonconsent of the owner
there is some conflict. An early English case, in a prosecution for coursing
deer without the consent of the owner, held that it was necessary on the part
of the prosecution to call the owner of the deer to prove that he did not give
his consent to the defendant to course them. Rex v. Rogers, 2 Camp. 654.
This doctrine has been entirely repudiated and rejected by later English de
cisions. Rex v. Hazy, 2 C. & P. 458; Rex v. Allen, 1 Moody C. C. 154. But
that case became the foundation for the doctrine that circumstantial evidence
as to the nonconsent may be resorted to only when direct evidence of the
owner is not obtainable. This doctrine is asserted in Ph1ll1ps on Ev1dence.
[4th Ed.] 635, and has been followed by a few states. State v. Osborne, 28
la. 9. At one time Nebraska and Wisconsin also asserted this doctrine. Bubster v. State, 33 Neb. 663; State v. Morey, 2 Wis. 495. But they have now
75a
MICHIGAN LAW REVIEW
oral promise of the grantor to plaintiffs that it would incorporate the usual
restrictive clauses in all deeds made by it, which was void under the Statute
of Frauds. The court disposes of this claim by saying that the oral promise
would be unen forcible as an attempt to create an interest in the lands to be
conveyed, but that in this case the plaintiffs have no interest or easement in
defendant's land in the sense of the Statute of Frauds. The court gives no
explanation of why the agreement is not within the Statute of Frauds. It is
difficult to understand why the right claimed by the plaintiffs, to control and
dictate as to the use which should be made of this lot, and the manner in
which defendant should build upon it, is not an interest in the land within
the Statute. In Sprague v. Kirnball, 213 Mass. 38o, it was held that such an
agreement as is involved here created an interest in the land within the
Statute. See also, Ham v. Massoit Real Estate Co., (R. I.), 1o7 Atl. 12o5;
19 M1ch. L. Rev. 219. However, conceding that the promise in this case is
within the statute, in some jurisdictions the decision might be supported on
the theory of estoppel. Lennig v. Ocean City As/n, 41 N. J. Eq. 6o6; Woods
V. Laurence, (Tex.), 1o9 S. W. 418. For a general discussion of the ques
tion see, T1ffany, Real Property, Vol. 2, [2nd Ed.] 1425 et seq; 45 L. R. A.
(N. S.) 962; 16 M1ch. L. Rev. 9o.
Frauds, Statute ofPlead1ng S1gned by Counsel Suff1c1ent Mem
orandum w1th1n 4th Sect1on of Statute of Frauds.A sued B for specific
performance of a contract to sell a house. Defense, signed by counsel, that
B had already contracted to sell to C, and counterclaim for rescission. A
then added C as defendant. C relied on his contract, and counterclaimed that
he was entitled to the house free from A's claim. A in answer to C relied
on the Statute of Frauds. Held, that B's defense (which contained all the
terms of C's contract) was a sufficient memorandum within the Statute, and
therefore specific performance was denied. Grindell v. Bass [192o], 2 Ch. 487.
The purpose of the Statute is not to impose a new rule of law as to what
constitutes a valid contract, but only to require a formality of proof in order
to make a contract enforceable. W1ll1ston on Contracts, Sect1on 579.
Therefore^ it is immaterial with what purpose the requirement of the Statute
is fulfilled. The parties do not need to intend the paper signed to be a mem
orandum of sale. They may have the contrary intention. For example, it is
not unusual for a party to write a letter, in which, after stating the terms of
the bargain, he repudiates it, or refuses to enter into a written contract. Yet
the courts have consistently held that such a letter satisfies the requirements
of the Statute. Drury v. Young, 58 Md. 546; Heideman v. Wolfstein, 12 Mo.
App. 366; Poel v. Brunswick Balke-Callender Co., 1 14 N. Y. S. 725; Deiuar
v. Mintoft, [1912] 2 K. B. 373. It is certainly true that the attorney in the
instant case had no authority to sign a memorandum of the sale; but, it goes
without saying, that he did have authority to sign the pleadings filed in the
former suit. The Statute requires that the memorandum be signed by the
party to be charged, or "by his agent thereunto lawfully authorized." But
authorized to do what? Must he be authorized to sign a note or memorandum
of sale, or is it sufficient if he is authorized to sign the paper which he did
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128 Pac. 727; Galveston v. Contreras, 31 Tex. Civ. App. 489, 72 S. W. 1o51.
After discussing Nugent v. Brooklyn Heights R. Co., 154 App. Div. 667, 139
N. Y. Supp. 367, which the court regarded as being based upon the fact that
no injuries to an infant en ventre sa mere due to the negligence of the carrier
were recoverable since there was no contract of carriage and hence no duty
on the part of the railroad to the infant, the court adopts the stand that the
mere fact that there are no precedents for a negligence action of this char
acter does not prevent the maintenance of one since the entire policy of the
law is to protect and give such infants every right which is for their benefit.
The fact that a criminal action has long been maintainable for injuries causing
the death of a child while in the mother's womb seem to support an action
of this sort. A strong dfssent, however, presents a number of cases that make
the decision of the majority at least questionable. Nugent v. Brooklyn
Heights Rd. Co., supra, is discussed and considered as authority for the propo
sition that no such action may be maintained upon the basis that such an action
is one in tort rather than upon the contract, as the majority opinion states.
That such is the correct view seems to appear from the fact that the duty
of ordinary care arises in the case even of a gratuitous passenger, and an
infant en ventre sa mere certainly cannot be placed in the category of a tres
passer. Similar cases in which the infant was not allowed to maintain a tort
action for injuries to itself before birth are Dietrich v. Northampton, 138
Mass. 14, 75 Am. St. Rep. 176; Allaire v. St. Luke's Hospital, 184 Ill. 359, 56
N. E. 638; Buel v. United Rys. Co., 248 Mo. 126, 154 S. W. 71, Gorman v.
Budlong, 23 R. I. 169, 91 Am. St. Rep. 629. In view of such authorities to the
contrary and with no cases to support the action of such child, there seems
no basis for- allowing a child to maintain a negligence action for injuries
while en ventre sa mere. See 34 Harv. L. Rev. 549.
InsuranceAcc1dental DeathM1l1tary Serv1ce.In an action by
the beneficiary named in an insurance policy, which provided for double in
demnity "in the event of death by accidental means (murder or suicide, sane
or insane, not included)," it was held, that the death of the insured, caused
by his being struck by a piece of shrapnel from an exploded shell while en
gaged in battle as a soldier, resulted through "accidental means" within the
terms of the policy. State Life Ins. Co. v. Allison, (C. C. A., Fifth Circuit,
192o), 269 Fed. 93.
An injury is not produced by accidental means, within the terms of such
a policy as is involved in the principal case, where it is the result of an act
or acts in which the insured intentionally engages, and is caused by a volun
tary, natural, ordinary movement, executed as was intended. Stone v. Fidelity
& Cas. Co. of N. Y., 133 Tenn. 672, 182 S. W. 252. But if any mischance
supervenes even in such an intentional act, whereby an injury is caused^ the
injury is deemed accidental. Preferred Acc. Ins. Co. v. Patterson, 213 Fed.
595. In such a case the injury is accidental in the sense that the injury is an
unforeseen and unexpected casualty. Accidental means are those which pro
duce effects which are not their natural and probable consequences. 4 Cooley,
755
Br1efs on Ins., 3159. Natural consequences are such as ought to be expected.

Probable consequences are those which are more likely to follow from the
use of a given means than to fail to follow. Thus, reasons the court in the
instant case, since chance determines what person or persons shall be killed
in war, and since "of the millions who serve as soldiers, comparatively few
are killed," the insured met death by accidental means, without his design,
consent, or co-operation, as the result of a hazard incident to his occupation.
As in another recent case, Interstate Business Men's Acc. Ass'n. of Des
Moines, la. v. Lester, 257 Fed. 225, where the beneficiaries of a similar policy
were allowed to recover for the death of an insured physician, who was shot
and killed while performing his duty as an officer of the National Guard on
emergency service during a strike, the court refused to write into the policy
an exception to the effect that if the insured engaged in any military service
the insurance should cease. Every person in the course of his life is neces
sarily exposed to varying degrees of hazard. Simply going into an environ
ment where the hazard is greater than that experienced in one's daily employ
ment cannot remove a chance death in such environment from the class of
"deaths by accidental means," when the policy does not except such par
ticular hazards. True, the decision seems to involve a liberal extension of
the principles enunciated in former cases, yet considering the words of the
policy and the hazard involved, it seems reasonable and justified.
Landlord and TenantConstruct1ve Ev1ct1onNecess1ty for Aban
donment.The defendant rented a theatre building from the plaintiff for
three years. After a year's occupation the defendant vacated as a result of
the plaintiff's notice to quit for failure to pay rent. In an action by the plain
tiff to recover rent the defendant counter-claimed for damages, the basis for
the counter-claim being an eviction caused by the landlord's using the base
ment of the building for the purpose of cutting and storing onions. Held,
that the counter-claim could not be allowed, for the tenant continued to
occupy the premises and pay rent after the obnoxious odors from the base
ment became apparent. Toy v. OUnger, (Wis., 1921), 181 N. W. 295.
A use of the adjoining premises by the landlord which materially inter
feres with the tenant's enjoyment of his own premises may result in a con
structive eviction of the tenant. 2 T1ffany, Landlord and Tenant, 1279;
Grosvenor Hotel Company v. Hamilton, [1894] 2 Q. B. 836. The test seems
to be whether the use to which the adjoining premises are put would con
stitute a nuisance at common law. 2 T1ffany, Landlord and Tenant, 1281 ;
Sully v. Schmitt, 147 N. Y. 248. Hence, if the landlord knowingly rents the
adjoining premises to a person who operates a house of prostitution, the
tenant may claim an eviction. Dyctt v. Pendleton, 8 Cow. (N. Y.) 727. But
to constitute an eviction the tenant must abandon the premises within a
reasonable time after the acts complained of. Commelin v. Theiss, 31 Ala.
412; Fox v. Murdock, 58 Misc. (N. Y.), 2o7. The principal case did not decide
whether the "odor with 'which nature has so bountifully endowed the onion,"
was a nuisance upon which an eviction might be predicated, but wisely eluded
756
MICHIGAN LAW REVIEW
this perplexing question by holding that there could be no eviction where the
tenant thereafter continued in the occupation of the premises. Beecher v.
Duf1eld, 97 Mich. 423; Taylor v. Finnegan, 189 Mass. 568.
L1m1tat1ons, Statute ofFraud as Reply to Plea of the Statute Not
Ava1lable at Law.In an action at law by the assignees of the pledgor
against the pledgee, whose debt had been paid, to recover the purchase money
paid to the pledgee by the purchaser of the pledged stock, the evidence
showed that the plaintiff had several times requested the pledgee to turn over
possession of the stock to him, but instead of informing the plaintiff of the
sale, the pledgee stated that the stock was in his possession and he would
turn it over as soon as he could find the certificates. When the plaintiff
learned of the sale he brought this action, and the defendant pleaded the
Statute of Limitations. Plaintiff replied that defendant was estopped to
plead the Statute of Limitations by his fraudulent concealment of the accrual
of the cause of action. Held, (five judges dissenting) the defendant could
not be estopped by fraudulent concealment to plead the Statute of Limita
tions, in a court of law, but that an estoppel of this nature was available only
in a court of equity as a ground for relief against the prosecution of the action
at law. Freeman v. Conover (N. J., 192o) 112 Atl. 324.
The question in this case is whether or not, in an action at law, fraud is
a proper matter of reply to a plea of the Statute of Limitations. The weight
of authority is that fraud is a good reply and operates as an estoppel against
the defendant pleading the statute. Holman v. Omaha & C. B. Ry. & Bridge
Co., 117 la. 268; Missouri, etc. Ry. v. Pratt, 73 Kan. 21o; Oklahoma Farm
Mortgage Co. v. Jordan, 168 Pac. 1o29; Baker-Mathews Mfg. Co. v. Grayling
Lumber Co., (Ark.) 2o3 S. W. 1o21 ; City of Fort Worth v. Rosen, (Tex.)
2o3 S. W. 84. Contra, see Pietschv. Milbrath, 123 Wis. 647; St. Joseph & G. I.
Ry. Co. v. Elwood Grain Co., (Mo.) 2o3 S. W. 68o; Harper v. Harper, 252
Fed. 39.
M1n1mum Wage ActNot Inval1d Because No Prov1s1on 1s Made for
Not1ce to Employers.Under an act making it unlawful to employ women
in any industry at wages inadequate for maintenance, the Industrial Welfare
Commission ordered the minimum wage in the public housekeeping industry
to be raised to eighteen dollars per week. Plaintiffs, operators of large hotels,
contended that the act was void in making no provision for notice to persons
affected. Held, under its police power the legislature, through the Commis
sion, can take away without notice whatever rights the employers have to
employ women and minors, since they have no vested right to employ them.
Spokane Hotel Co. v. Younger, (Wash., 192o), 194 Pac. 595.
Plaintiffs did not venture to question the ability of the Legislature under
its police power to pass a minimum wage act ; its constitutional right to do
this seems to have been settled once for all by the case of Stettler v. O'Hara,
69 Ore. 519, which was sustained by the Federal Supreme Court in 243 U.
S. 629. The contributions made by Spokane Hotel Co. v. Younger to the law
of the subject seem simply to be that such acts do not need to make provision
MICHIGAN LAW REVIEW
758
Mun1c1pal Corporat1onsS1dewalksIce Caused by Dra1nage from

Awn1ngAwn1ng Not a Nu1sance.A motion picture theatre had con
structed an awning in such a manner that water drained from the awning
onto the edge of the sidewalk. The plaintiff was injured by falling on ice
which had frozen from this water. In an action against the city, held, that
the awning was not such a nuisance that the city was bound to remove it.
Maine v. City of Des Moines, (Iowa, 1921) 181 N. W. 248.
Where a city by its own act negligently permits water to collect and
freeze on its walks, it is liable for injury proximately resulting to pedestrians.
Holbert v. Philadelphia, 221 Pa. 266, (failure to keep a sidewalk under a via
duct properly drained) ; Walsh v. New York, 1o9 App. Div. 541, (leaky
hydrant adjacent to a sidewalk). But generally the city cannot be held where
the injury results from the act or omission of the abutting owner. Hanrahan
v. Chicago, 145 Ill. App. 38, (awning falling on the plaintiff). But the city
may be liable where it negligently allows the abutting owner to retain a nui
sance, as where the abuttor's awning was constructed so near to the curb that
a truck knocked out the support and caused the awning to fall on the plaintiff.
Mansfield v. New York, 119 App. Div. 199. And where the city has been
compelled to pay damages as a result of the abuttor's act of conveying water
onto the sidewalk to freeze, it is entitled to reimbursement from the abutting
owner. New York v. Dimrick, 49 Hun. 241. See 19 M1ch. L. Rev. 549. It
seems that the abutting owner may be charged whenever he creates a condi
tion which artificially causes water to flow upon the sidewalk and freeze so
that the walk is rendered unsafe for pedestrians. Canfield v. Chicago & W.
M. R. Co., 78 Mich. 356, (water leaking from a water tank) ; Malony v. Hayes,
2o6 Mass. 1, (water from the defendant's roof) ; Macauley v. Schneider, 9
App. Div. 279, (water collecting under the abuttor's awning). But the abuttor
cannot be charged if the water collected on the walk from natural rather than
from artificial conditions. Greenlaw v. MUlikin, 1oo Me. 44o.
Negl1genceAttract1ve Nu1sance.The defendants had at their station
a mechanical moving staircase or escalator worked by an endless band. At
the top, the band passed around a wheel where it was open to sight and
touch, and was not fenced off or protected. The room was open to the street.
There was a ticket collector at the bottom of the staircase and another
behind a window in the booking hall. It was common practice for children
to play upon the staircase, generally in the evening, by running down as
far as they could without being caught by the ticket collector at the bottom.
They were always warned off, and a railway policeman whose duty took
him into the booking hall twice every hour, always drove the children away.
On the evening of the accident, he drove them away, but later, they returned,
and with them the plaintiff, a boy of five. The children looked around to
see if the policeman was gone, and discovering that he was, commenced to
play. Plaintiff caught his hand in the moving stairway and was injured so
badly amputation was necessary. In an action for negligence, held, the plain
tiff was a trespasser, and the defendants are not liable. Hardy v. Central
London Railway Co., [192o] 3 K. B. 459.
759
In this case involving the doctrine of an attractive nuisance, the English

court distinguishes the leading case of Cooke v. Midland & Gt. Western Ry.,
[19o9} A. C. 229, in which an infant was injured by playing on a turntable,
saying, "there the decision clearly proceeded upon the inference that the
children resorted to the turntable with the tacit permission of the Railway
Co.," while in the instant case the children deliberately did what they knew
they were forbidden to do, and the warnings brought home to them negatived
the allurement afforded by the moving staircase. The American cases, known
as the "turntable" cases, 19 L. R. A. (N. S.) 1o94, Note, do not emphasize
this distinction, although in Comer v. IVinston-Salem, 178 N. C. 383, dis
cussed in 18 M1ch. L. Rev. 34o, the court held where neighborhood children
had been accustomed to play near a bridge, it was negligence not to provide
sufficient protection for children watching the colored water rushing through
under the bridge. Ever since the first case of this sort, Railroad v. Stout,
17 Wall. 657, citing the English case of Lynch v. Nurdin, I Q. B. 29, 1o L.
J. Q. B. 73, the tendency has been to limit the application of the attractive
nuisance doctrine. For a complete discussion see 5 M1ch. L. Rev. 357. It
would seem as if the English court has worked out a distinction by asking
whether the child is an invitee by tacit permission, but has not solved the
difficulty, for it is always a question as to just what makes a tacit invitation,
and one by no means easy of solution, although this test may be very effective
in denying any further extension to new sets of facts of the "turntable"
principle.
Part1esSu1t by Representat1ves of a ClassJur1sd1ct1on of Federal
Courts.Several hundred members of the Supreme Tribe of Ben-Hur, an
Indiana fraternal beneficiary society, filed a bill in the United States District
Court in Indiana, on their own behalf and as representatives of several thou
sand other members of the same class, to enjoin certain uses of trust funds
held by the society. No Indiana members were individually named as parties.
A decree was made. The Indiana members of the society subsequently com
menced actions in the Indiana State courts involving the same matters de
cided in the federal case, and the question was presented whether the Indiana
members were so far parties to the federal suit as to be bound by the federal
decree and precluded from relitigating in the State courts. Held, on certifi
cate to the United States Supreme Court, that all members of the class, both
in and out of Indiana, were bound by the decree. Supreme Tribe of Ben-Hur
v. Cauble, (U. S. Sup. Ct., No. 274), decided March 7, 1921.
This raises and settles a very interesting and important question. It was
considered by the lower federal court that the Indiana members could not
be deemed present in the suit by class representation because their presence
would oust the court of jurisdiction, since the sole ground of federal juris
diction was diverse citizenship. 264 Fed. 247. But the Supreme Court of the
United States held that class suits were long known to the equity practice,
that such a suit could have been maintained in a State court, that federal
courts must be deemed to exercise as broad equity powers as State courts of
equity, that unless a decree in such a suit would be binding on all members,
MICHIGAN LAW REVIEW

whether resident in the same State as the federal forum or elsewhere, the
federal courts would be practically excluded from handling important cases
of this nature, for it would be intolerable to allow parallel class suits to pro
ceed in State and federal courts for or against different groups of the same
class. The decision makes the relation between those members of the class
who are actually present and those who are merely present by representation,
the same, for jurisdictional purposes, as the relation between trustees and
beneficiaries, for it always has been held that it is the citizenship of the ad
ministrator or executor (Memphis St. Ry. Co. v. Bobo, 232 Fed: 7o8), or
trustee (Johnson v. City of St. Louis, 172 Fed. 31, 96 C. C. A. 617), or re
ceiver (Irvine v. Bankard, 181 Fed. 2o6), or guardian (Mexican Central Ry.
Co. v. Eckman, 187 U. S. 429), and not the citizenship of the parties bene
ficially interested, which controls the jurisdiction of the federal court.
Publ1c Serv1ce Corporat1onsFree Use of Gas by LessorDuty of
Equal Serv1ce.Plaintiff, a public service corporation, sued to enjoin de
fendant from interfering with its pipes. Its success depended upon the in
validity of a covenant in its lease giving the defendant, the lessor, the right
to supply his residence with gas without charge, by connecting it with plain
tiff's well. Plaintiff contended the covenant was void because in violation of
a statute requiring public service corporations to serve all on equal terms.
Held, the effect of the covenant was to give the company the right to devote
to the public service only so much as remains after the reasonable demands
of the defendant are satisfied, and the provision of law referred to, is there
for, not applicable. Pittsburgh & West Va. Gas Co. v. Nicholson, (W. Va.,
1921) 1o5 S. E. 784Ordinarily under a provision of law requiring public service corporations
to serve all on equal terms, a contract to render service in return for any
thing but a monetary consideration is invalid. Dorr v. Railroad Co., 78 W.
Va. 764; Bell v. Kanawha T. Co., 83 W. Va. 64o; Shrader v. Steubenville Co.,
99 S. E. 207; City of Charleston v. Public Service Comm., 1o3 S. E. 673.
Thus, an agreement by a railroad company to issue annual passes for a period
of years in return for a grant of land is invalid under such a provision.
Dorr v. Railroad Co., supra; Bell v. Kanawha Tr. Co., supra. Also an agree
ment to do so in settlement of a claim for injuries, Louisville & N. R. Co.
v. Mottley, 219 U. S. 467; or in return for advertising, State v. U. Pac., 87
Neb. 29; U. S. v. C. I. & L. R. Co., 163 Fed. 114. An agreement to furnish
free water to a city in return for the right to lay mains in the streets is like
wise objectionable under such a provision. Even though such agreements are
lawful when made, a subsequent law requiring uniformity of rates will in
validate them, and the clause in the federal constitution forbidding the states
to pass laws impairing the obligation of contracts affords them no protection.
Raymond Lumber Co. v. Raymond Light & Water Co., 92 Wash. 33o; Hite
v. C. /. & W. R. Co., 284 Ill. 2o7. In order to be certain of the uniformity
which the legislature seeks to secure by such provisions, an unvarying stand
ard is necessary, and the only feasible one is money. If services and materials
furnished are compensated for with money, the recipients can purchase serv
761
ices on the same basis as others, and equality is assured. Shrader v. Steubenvillc Co., supra; State v. U. Pac., supra. But in the principal case, the court
holds that where there is a reservation of a portion of the subject-matter by
the party seeking to compel service, the result is otherwise, and that the effect
of the arrangement in that case was to reserve such an interest to the lessor.
Had the agreement been to render the same class of service to the defendant
as to the rest of the public, the agreement would have been invalid. The gas
supplied to the owner of the fee, however, never reached the public mains,
and remained private property. The theory seems to be that having the right
to retain the whole, the lessor may- retain an undivided interest in such part
as he chooses. The illustration suggested by the court is not a happy one.
It is that of a lessor of a farm, reserving a portion of the crop, and his tenant.
True, no one would deny the right of the lessor to the reserved crops. Neither
could anyone complain if the agreement was that the tenant pay a rental and
sell a portion of the produce to the lessor at a low price. The analogy is
obviously defective.
RewardsR1ght of a Sher1ff Mak1ng Arrest to Cla1m Reward.A
murder had been committed in M county. The sheriff of that county gave
information to the sheriff of B county which enabled the latter to find and
arrest the murderer. There was an equitable proceeding to determine how an
offered reward should be distributed. Held, since the sheriff of M county
was armed with a warrant, he was charged with the official duty of doing all
in his power to secure the arrest of the accused and could not, therefore, take
a reward ; but the sheriff of B county, having no warrant requiring him to
apprehend a person charged with a crime in another jurisdiction, was conse
quently under no official obligation to arrest or detain the suspect and could
take a reward. Maggi v. Cassidy, (la., 1921) 181 N. W. 27.
Due to the public policy involved the well settled general rule is that an
officer cannot receive or recover a reward for doing an act which it is his
official duty to perform. Marking v. Needy and Hatch, 71 Ky. (8 Bush.) 22.
The principal case applies this rule. The courts are apparently much influ
enced by the fact that, generally speaking, a sheriff's authority and duty to
act officially, either within or without his jurisdiction, depend on the writ or
warrant with which he is armed. Marsh v. Wells Fargo & Co. Express, 88
Kan. 538. Since some jurisdictions hold that the powers, duties, and com
pensation of sheriffs shall be entirely statutory, (McArthur v. Boynton, 19
Colo. App. 234; Benson v. Smith, 42 Me. 414), reference must be had in a
particular case to the statute in force to find out whether the officer who
claims the reward was under an official duty to act as he did. Of course
aside from the question of public policy involved, the whole matter rests in
last analysis on the unquestioned principle of contract law that merely per
forming one's official duty does not constitute sufficient consideration for a
promise. Worlhen v. Thompson, 54 Ark. 151.
TrespassL1censeDuty of Meter Reader to Knock Before Enter1ng
Dwell1ng.D Co. furnished electricity to P under a contract which pro
76a
MICHIGAN LAW REVIEW
vidcd that D and its agents should have free access to the meters and service
for purposes of examination. X, an employee of D, entered P's house with
out rapping and without announcing his presence for the purpose of reading
the meter, and seriously frightened P who was unaware of his entry. Held,
D, was liable for injury to inmate through fright. Mollinaux v. Union Elec
tric Co., (Mo., 1921) 227 S. W. 265.
While the court conceded that the agents of D under the terms of the
contract had a license, the liability of D was predicated on its abuse by D's
agents, since ordinary prudence and a wholesome regard for the sanctity of
the home requires that no entrance be made without announcing one's pres
ence. In Hitchcock v. Hudson Gas Co., 71 N. J. L. 565, D's agent having
been refused admittance to remove a meter, subsequently returned and broke
into P's home, and it was held that D was not liable since he acted under a
license. But in Reed v. New York Gas Co., 87 N. Y. S. 81o, D was held
liable for breaking into P's cellar in order to remove the meter on the ground
that, as in the principal case, an abuse of a license renders one a trespasser
ab initio; but the case may be distinguished from the New Jersey decision on
the ground that it does not appear from the report that the agent had pre
viously requested admittance. As to whether damages should be recoverable
when resulting from fright, in an analagous case a trespassing meter reader
was held to render his master liable for damages resulting from mental
anguish. Bouillion v. Laclede Gas Co., 148 Mo. App. 462. It would seem
that where the cause of the mental suffering is the trespass on P's prop
erty, recovery should be allowed. Watson v. Dilts, 116 la. 249; 17 M1ch. L.
Rev. 4o7; 34 Harv. L. Rev. 28o.
Tr1alInstruct1on to F1nd the Defendant Gu1lty 1n a Cr1m1nal
Case.The defendant was indicted for selling liquor contrary to the local
option law. The evidence for the state was uncontradicted and the judge
instructed the jury that it was their duty to find the defendant guilty. Held,
no error. People v. Berridge (1921), 212 Mich. 577.
It is generally held 1o be error to direct a verdict of guilty in a criminal
case under any circumstances. Lucas v. Commonwealth, 118 Ky. 818; Per
kins v. State, 5o Ala. 154. And there are but few recognized exceptions to
this rule. In Michigan a long line of decisions has established the right of
the court to instruct the jury to return a verdict of guilty in cases where
no question of intent is involved. People v. Neumann, 85 Mich o8 (selling
liquor to a minor) ; People v. Elmer, 1o9 Mich. 493 (disorderly conduct).
But the judge cannot discharge the jury and enter a verdict of guilty, nor
can he coerce the jury into returning such a verdict. People v. Warren. 122
Mich. 5o4. Arkansas allows the direction of a verdict of guilty where the
offense is a mere misdemeanor punishable by fine. Stellc v. State, 77 Ark.
441. As to the rule in the United States courts, see 19 M1ch. L. Rev. 325.
Tr1alQuot1ent Verd1ct.Amount that each juror thought the plain
tiff should recover was set down and these then added and the average found.
After a motion made by one juror to make it even money, leaving off $83 and
764
MICHIGAN LAW REVIEW
W1llsBequest "1n Trust" Creates Absolute G1ft.Testator left

the residue of his estate "in trust" to his three executors, directing that they
should use their best judgment and that they should not be required to give
bond. A separate bequest had been made to one of the executors. In a bill
for the construction of the residuary clause, held, not to create a trust, but
an absolute gift. In re Dever"s Will. Orr v. Thompson, et al (Wis., 1921),
18o N. W. 839.
The language of the will in the instant case more clearly indicates an in
effective attempt to create a trust than that of Harvey v. Griggs, 11l Atl. 437,
where a direction to dispose of property "according to best judgment" was
held to create an absolute gift. See note to that case, 19 M1ch. L. Rev. 455.
The view that the words "in trust" are not conclusive as to the intention of
the testator is in accord with Norman v. Prince, 4o R. I. 402. But see contra,
Haskell v. Staples, 116 Me. 1o3, where the same language, following a separate
bequest to the executor, as in the instant case, was held to create a trust
void for uncertainty.
W1llsDecept1on Regard1ng Marr1age 1s Fraud wh1ch Avo1ds Lega
c1es Thereby Procured.A wife made a residuary bequest to a man whom
she described as, and whom she believed to be, her lawful husband. He had
induced her to enter into the marriage by false representations that he was
free to marry, whereas in fact he had a wife living from whom he was not
divorced. In proceedings to contest the will, held, that the deception war
ranted the inference that the will was the result of the fraud, and that the
case should not have been taken from the jury. In re Carson's Estate (Cal.,
192o), 194 Pac. 5.
The earliest reported case dealing with the question seems to be Kennell
v. Abbott (1799)., 4 Ves. 8o7, in which a legacy to the "husband" of the testa
trix was held to be avoided by the former's false assumption of that character,
the existence of which alone in the court's opinion, could be supposed to be
the motive of the gift. In Wilkinson v. Joughin, L. R. 2 Eq. 319, a bequest
to the testator's supposed wife was declared void for a similar fraud. In
Rishton v. Cobb, 5 Myl. & Cr. 145. a bequest to a woman "so long as she
shall continue single and unmarried" was held to be valid, even though un
known to the testator, she was married at the date of the will, on the ground
that there was a mere inaccuracy in the description of the legatee. But this
decision was questioned in In re Boddington, 5o L. T. R. 7o1. As pointed
out in this case, two things must appear : first, a false assumption of the char
acter of the legatee; second, evidence, or a presumption, that the false char
acter was the motive for the gift. Thus, if there is no intentional decep
tion, the gift is valid even though there may be a misdescription. In re Bod
dington, supra (where a legacy was given to the wife and later the marriage
was annulled and declared void ab initio due to the impotency of the tes
tator) ; Philip Dries Case, 69 N. J. Eq. 475 (where the wife did not know
that she was not free to re-marry). See also, Weening v. Temple, 144 Ind.
189. If it appears that the testator knows of the deception, the bequest of the
legacy is valid. In re Will of Donnely, 68 Iowa 126; Moore v. Heineke, 119
BOOK REVIEWS
The Br1t1sh Year Book of Internat1onal Law, 192o-21. Editor, Cyril M.
Picciotto. Editorial Committee, Sir Erie Richards, Prof. A. Pearce Higgins, Sir John Macdonell, Sir Cecil Hurst, and E. A. Whittuck. London :
Henry Froude and Hodder & Stoughton, 192o. Pp. viii, 292.
The purpose of the new British Year Book of International Law, as
announced in its introduction, is "to provide scope for well-informed and
careful contributions to the science of international law, wherein the fruits of
research can be applied to the problems of the day." This is a fine purpose.
What is more, under such distinguished editorship, it is a purpose which is
certain to produce something of permanent value. In this first volume the
editors have not only achieved the object of their enterprise; they have made
the Year Book at the outset a leading publication in the field of interna
tional law.
The volume includes brief sketches appropriate to mark the passing of
some of our greatest contemporary juriststhe late Professor Oppenheim,
Heinrich Lammasch, Thomas J. Lawrence, and Pitt Cobbett. For the con
venience of specialists it also includes useful mechanical features which record
the year's activities in the field by means of a chronological list of interna
tional agreements, a bibliography of current publications, and a brief review
of recent English cases. The body of the book is made up of no less than
ten papers, most of which are of exceptional merit. Three are unsigned. Of
these the least valuable, entitled "The Neutrality of Brazil," presents a very
brief summary of important regulations adopted by the Brazilian Govern
ment at the beginning of the World War together with a translation of the
Brazilian Neutrality Regulations of August 4, 1914. Another on "Changes
in the Organization of the Foreign and Diplomatic Service" is an interesting
and informing article which may be read with profit by all who are interested
in the improvement of our own foreign service. The third, entitled "The
League of Nations and the Laws of War," is one of the most stimulating
papers in the volume. It is non-technical, interesting, and so timely that it
ought to be read by everyone. It offers a vigorous argument against utilizing
the League of Nations to revise and codify the laws of war and neutrality.
The author contends "that the preoccupation of writers and statesmen with
the laws of war has been a real obstacle to the progress of international law,
and that it is by the development of the law of peace, rather than by renewing
the attempts to codify the law of war, that a stable international system can
be built up by the League of Nations." In America, at a time when it is
seriously urged in influential quarters that instead of advancing the idea of a
league of nations we should set another Hague Peace Conference at the
comparatively futile business of revising the laws of war and neutrality, an
article as significant as this one ought to have the widest possible publicity.
The greater part of the Year Book is devoted to the signed articles which
BOOK RBVIEWS
769
The Law of Contracts. Samuel Williston, Weld Professor of Law in Har

vard University. New York : Baker, Voorhis & Co., 192o. In four vol
umes. Vol. Ill, pp. xxii, 2331-3456; Vol. iv, 3457-4182.
Volumes III and IV complete Professor Williston's monumental work on
the law of contracts. The first two volumes of this treatise have been dis
cussed in the present volume of the M1ch1gan Law Rev1ew, pp. 358-362.
Volume IV is occupied entirely by the table of cases and index. Only Volume
III remains to be considered.
The original plan of this work necessitated including a treatment of
specific performance and the application of the rule as to damages for breach
of contract to particular cases both of which subjects are to be found in
Volume III. Few will look here for assistance when working on a problem
in specific performance and the same is true, though to a less degree, of a
problem in the law of damages. A general statement of the law as to the
measure of damages such as is contained in Chapter xxxvi of Volume III
is well placed in a general treatise on the law of contracts.
A considerable part of this volume is devoted to the circumstances in
validating or qualifying the effect of a contract, viz., fraud, mistake, duress
and illegality. As an accurate statement of the law on these four subjects,
Professor Williston's work is scarcely to be improved by one having the
benefits of his labor to begin with, much less by one starting the task anew.
His analysis of the legal doctrines underlying the subject of illegality is most
searching and helpful. The wisdom of the social policies which our rules
relating to illegality embody is, of course, not considered in any part of this
work, and it is at least interesting to observe that it is not treated anywhere
else. We know little or nothing about it. "As it is now, we rely upon tradi
tion, or vague sentiment, or the fact that we never thought of any other way
of doing things, as our only warrant for rules which we enforce with as much
confidence as if they embodied revealed wisdom," is a quotation from Mr.
Justice Holmes which is in point. It truthfully can be added that no one
seems to have any notions as to how to go about finding out something about
these matters nor even as to what class of institutions should be expected to
do this work. An attempt by Professor Williston to treat these broad ques
tions of social policy would have been as much out of place in a treatise
planned as his is as the foregoing remarks are out of place in a review of it.
Volume III contains an exhaustive statement of the law of discharge of
contracts. Great accuracy is everywhere evident. Of particular utility is the
discussion of the statutes of limitations.
It is believed that no single piece of work in any of these volumes is
equal to that on rescission and restitution for a breach of contract. Although
working with the imperfect tools of an uncertain terminology, the product is
a model in text book writing.
As a by-product of the author's struggle with the theoretical aspects of
anticipatory breach, one gets a fairly adequate notion of what the law on
this subject is but one is sometimes at a loss to understand why the doctrine
involved is found to be so objectionable. True, the objections which he
77o
MICHIGAN LAW REVIEW
raises are too substantial to be disposed of in a few sentences in a review,

but the doctrine must be recognized as the prevailing one and must be lived
with some way. There may be some compensation in reflecting that, after
all, the time at which a promisor is to perform an act is merely one of the
attendant circumstances in which he is to perform. Among other such is
often the antecedent or contemporaneous performance of some act by the
promisee. If a duty inchoate because of the latter is rendered absolute by
the promisor's repudiation, why may it not be also if inchoate because of the
former?
Herman Ol1phant.
University of Chicago Law School.
772
MICHIGAN LAW REVIEW
these expressions of opinion there has been every now and again
fresh expression of the same belief that the Supreme Court ought
not to be able to declare legislative acts unconstitutional by a bare
majority of the court.5
In general there have been two main grounds upon which five-tofour decisions of the Supreme Court upon questions of constitu
tional law have been attacked. In the first place, it is urged that
when the Supreme Court invalidates a statute by such a narrow
margin it violates one of the most firmly established doctrines of
constitutional constructionthe doctrine of reasonable doubt; a
doctrine which holds that an act of the legislature must be presumed
by the courts to be constitutional until its unconstitutionality is dem
onstrated beyond all reasonable doubt, and that all reasonable doubts
regarding the constitutionality of a law will be resolved in favor of
the law. Many eminent jurists and constitutional lawyers8 are in
accord with the view which Watson has clearly stated in the follow
ing words :
"Can it be said that an act is a clear isolation of the Consti
tution when five justices declare it to be so, and four declare
with equal emphasis that it is clearly not so ? All doubt must
be resolved in favor of the constitutionality of the law, and
it must be clear in the mind of the court that the law is un
constitutional. But can this condition exist when four of the
justices are equally earnest, equally emphatic, equally persist
ent and equally contentious in their position that a law is
clearly constitutional ?"7
There are others who criticize these bare majority decisions upon
the broader grounds of expediency and policy ; these believe that it
would serve the public interest to require that the Supreme Court
may invalidate a statute only by a unanimous decision or by some
specified extraordinary majority. There are, of course, many writ
ers who criticize majority decisions upon both of these grounds, but
it should be recognized at the outset that the "reasonable doubt" ar
gument and the argument from expediency are quite different and
have no necessary connection with each other. It is the purpose of
5 These proposals are summarized, infra, p. 795.
Infra, p. 783.
'Watson on Const1tut1on, II, 119o, note.
FIVE TO FOUR DECISIONS
773
this paper to discuss majority decisions in some detail from the

standpoint of each of these two criticisms.
I. Major1ty Dec1s1ons and the Doctr1ne of Reasonable Doubt
The question whether a five-to-four decision declaring a statute
unconstitutional must be regarded as a repudiation of the doctrine
that all reasonable doubts regarding the validity of a law must be
resolved in favor of the law is not a question which can be disposed
of in the glib and casual manner in which many writers have dealt
with it. The pungent allusion in one of our weekly journals to "the
oft recurring scandal of five members of the Supreme Court solemn
ly adjudging that the other four hold opinions which no reasonable
man carr entertain,"8 carries with it a certain smack of plausibility,
but inquiring minds should not be too ready to accept such self-sat
isfied criticisms at their face value. Whether or not a five-to-four
decision invalidating a law violates the doctrine of reasonable doubt
depends upon what the doctrine of reasonable doubt really is. To
determine this it becomes necessary to make sure, not what writers
and critics think the doctrine means, or think it ought to mean, but
the precise meaning attached to it by the courts which have created
and applied it. Some discussion, therefore, of the origin, basis, and
nature of the doctrine of reasonable doubt as a canon of judicial
construction becomes pertinent.
1. The Origin and Early Development of the Doctrine of Rea
sonable Doubt. One or two interesting facts may be noted regard
ing the early history of the doctrine of reasonable doubt. Seven
years before the Supreme Court officially announced in Marbury
v. Madison9 that it possessed the power to declare acts of Congress
unconstitutional, Justice Samuel Chase declared in Hylton v. United
States10 that "if the court have such power, I am free to declare,
that I will never exercise it, but in a very clear case." But in the
first case in which the Supreme Court actually invalidated an act
1 The New Republic, July 3o, 1917, Vol. XI, 41o.
8 1 Cranch 137 (18o3).
10 3 Dall. 171, 175 (17o6). See also the following statement made two
years later by Mr. Justice Iredell : "If any act of Congress, or of the legis
lature of a state, violates those constitutional provisions, it is unquestionably
void, though, I admit, that as the authority to declare it void is of a delicate
and awful nature, the court will never resort to that authority, but in a clear
and urgent case." Calder v. Bull, 3 Dall. 386, 399 (1798).
774
MICHIGAN LAW REVIEW
of Congress there is not the slightest allusion to any presumption

that the law was valid or that any reasonable doubt could possibly
exist as to its invalidity.11 Even in spite of the strong presumptions
which might have been raised in favor of the statute and the strong
doubts as to the correctness of Marshall's view of its invalidity12
there is no evidence that he felt the slightest compunction in over
ruling an act of a coordinate branch of the government. In fact,
a careful reading of Marbury v. Madison leaves one with the dis
tinct impression that Marshall regarded the unconstitutionality of a
statute as an objective and visible characteristic as to the existence
or non-existence of which there could be no question. The process
of discovering such unconstitutionality is as simple as the task of a
child sorting black and white pieces of cardboardsome afe black,
some are white, but it is perfectly easy to tell which is which and
the awkward question of where to classify gray pieces is conven
iently side-stepped.13 It will also be noted in this connection that
nowhere in the two long chapters which Story devotes in his com
mentaries to the problem of constitutional interpretation by the
courts does he allude to the doctrine of reasonable doubt or deviate
in any substantial way from Marshall's viewpoint in Marbury v.
Madison.14 It is true, furthermore, that in none of the first six
cases in which the Supreme Court declared acts of Congress unconu Marshall in the course of his opinion in Marhury v. Madison does
refer to the "peculiar delicacy of this case." (1 Cranch 154) - There is no
evidence, however, that he had in mind anything but the turbulent political
events out of which the litigation had arisen.
" Seldom have stronger presumptions of validity surrounded a statute.
Ellsworth, Marshall's predecessor as Chief Justice, had drafted the act while
a member of the first Congress. Not less than twelve members of the Con
vention of 1787 had either worked for or voted for the act while in Congress.
In two earlier cases the Supreme Court had assumed the jurisdiction which
Marshall now finds Congress could not constitutionally confer. United
States v. Lawrence, 3 Dall. 42 (1795); United States v. Peters, 3 Dall. 121
(179S)- The theory that the statute was unconstitutional seems to have been
Marshall's own personal invention. See Bever1dge, op. cit., Ill, 127-129. For
a strong argument tending to show that the statute should have been upheld
see Corw1n, The Doctr1ne op Jud1c1al Rev1ew, Ch. I.
"This seems to have been characteristic of Marshall's mental processes.
"His invariable quest," says Corwin, "was for the axiomatic, for absolute
principles," John Marshall and the Const1tut1on, 123.
" [3rd Ed.], Bk. Ill, Ch. IV, V.
776
MICHIGAN LAW REVIEW

idity of the laws; our feeling being always on that side of
the question unless the objections to them are fairly and clear
ly made out."18
Four years later the same justice speaking for the court in the
case of Ogden v. Saunders gave utterance to what has been regarded
very generally as the classic statement of the doctrine of reasonable
doubt. After remarking that the question of the validity of the
statute under review was a doubtful one he went on to say :
"If I could rest my opinion in favor of the constitution
ality of the law * * * on no other ground than this doubt, so
felt and acknowledged, that alone would, in my estimation,
be a satisfactory vindication of it. It is but a decent respect
due to the * * * legislative body by which any law is passed,
to presume in favor of its validity, until its violation of the
Constitution is proved beyond all reasonable doubt. This has
always been the language of this court when that subject has
called for its decision, and I know it expresses the honest sen
timents of each and every member of this bench."18
The unanimity with which the doctrine of reasonable doubt has
come to be accepted as the only correct and orthodox rule of judicial
construction is attested by subsequent judicial utterances numbering
into the thousands20 as well as by the statements of practically every
commentator in the field of constitutional law. Needless to say it
is a doctrine which has also been adhered to by state courts in pass
ing upon the validity of state and federal statutes.
It is highly important to keep in mind that this doctrine is not one
which has been imposed upon the courts by the Constitution or by
statutes. It is merely a rule or canon of construction which the
courts have with virtual unanimity imposed upon themselves.21 It
is a sort of judicial "self-denying ordinance."22
"8 Wheat. I, 93 (1823).
"12 Wheat. 213, 27o (1827).
* Persons with a passion for statistics will find ample data upon this
point compiled in the Century and American Digests.
n "These rules are self-established, under a sense of propriety and
expediency, and are not created by any constitutional necessity." W1lloughby on Const1tut1on, I, 12. See also Black on Interpretat1on of Law, 7.
"The judicial origin of the rule is emphasized by the fact that in the
following groups of cases the presumption of constitutionality does not at-
778
MICHIGAN LAW REVIEW
In the first place, it must be recognized that in a very large num

ber of case9 there is ample room for an honest and intelligent differ
ence of opinion with reference to the meaning and application of
constitutional provisions. Some constitutional clauses are ambig
uous, and no man or body of men can justly say that their construc
tion of them is the only correct one. Other constitutional provisions
are so broad and general in their terms that their application to con
crete situations may open up questions which, as Dean James P. Hall
says, "depend upon the interpretation of complex social and eco
nomic facts, where reasonable men may disagree widely in their con
clusions."23 This situation arises most frequently, perhaps, in the
effort to settle the vexed question at what point laws passed in the
exercise of the police power of the state begin to violate the guar
antee of due process of law in the Fourteenth Amendment. As Mr.
Justice Holmes has aptly expressed it, "We have few scientifically
certain criteria of legislation, and it is often difficult to mark the
line where what is called the police power of the states is limited by
the Constitution of the United States."24 It may, then, be concluded
that one reason why the courts feel that they must assume that the
legislature is right in its solution of a constitutional question is that
it is often so difficult to prove conclusively that any one view of the
question is clearly wrong.
In the second place, the presumption that Congress has not ex
ceeded its constitutional powers in enacting a statute is grounded
upon what Mr. Justice Strong in Knox v. Lee termed "a decent re
spect for a coordinate branch of the Federal Government."25 It was
said in the Sinking Fund Cases:
and numerous cases cited in these articles. Decisions embodying this doc
trine were severely criticised and in recent years the courts are usually re
fusing to recognize any prima facie invalidity in a police statute merely be
cause it restricts liberty of contract. See for example Erie R. R. Co. v.
Williams, 233 U. S. 685 (1914) ; State v. Bunting, 71 Ore. 259 (1914). (4)
"By weight of authority, when part of it [statute] has been declared uncon
stitutional, the presumption in favor of constitutionality will not be indulged
in as to the remaining portion." 12 Corpus Jur1s, 8oo and cases cited.
" Hall, Const1tut1onal Law, 36-37.
"Noble State Bank v. Haskell, 219 U. S. 1o4, 11o (1911).
"12 Wall. 457, 531 (1872). See also the passage from Ogden v. Saun
ders quoted above, page 776.
"99 U. S. 7oo, 718 (1878).
781
long as any reasonable or intelligent man could entertain any doubts

as to its invalidity. Two of the many statements of this rule will
suffice. In an early Georgia case it is declared:30
"This violation of a constitutional right ought to be as ob
vious to the comprehension of every one as an axiomatic
truth, as that the parts are equal to the whole."
In a South Carolina decision the court says :31
"The validity of the law ought not then to be questioned
unless it is so obviously repugnant to the constitution that
when pointed out by the judges, all men of sense and reflec
tion in the community may perceive the repugnancy."
In the second place, many courts have made use of the analogy
between the presumption of innocence to which a person accused of
crime is entitled and the presumption of constitutionality which
arises in favor of a statute ; and have suggested that the reasonable
doubt which when felt by a jury in deciding the guilt or innocence
of the accused must lead to his acquittal is the same reasonable doubt
in nature and degree which should lead a court to uphold the consti
tutionality of a statute. In other words, a court must be precisely
as ready to pronounce a law valid in a doubtful case as a jury is to
acquit in a doubtful case.32
In the third place, it will be found that the vast majority of judges
make no effort to find synonyms for the expression "reasonable
doubt" or to set up any definite standards by which it is to be meas
ured. Or else they content themselves with making the somewhat
obvious statement that by a "reasonable doubt" is meant a rational
doubt. In fact, their point of view in the matter would probably be
accurately expressed in the following words of a judge of the su
preme court of Ohio:33
"Grimball v. Ross, Charlton's Reports, 175 (18o8). See Thayer, op.
cit., 18.
"Adm'rs of Byrne v. Adm'rs of Stewart. 3 Des. 466 (1812). See Kales,
"New Methods in Due Process of Law," 12 Amer. Pol. Sc1. Rev. 243 ;
Thayer, op. cit., 19.
""The lawmaking power of the state is entitled to at least as strong a
presumption in favor of the validity of its acts as a criminal on trial in favor
of his innocence." Gilbert v. Green, 185 Ky. 817, 828 (1919).
" Dissenting opinion of Davis, C. J., in State ex rel. Weinberger v.
Miller, 87 Oh. St. 27, 53 (1912).
MICHIGAN LAW REVIEW
782
"The phrase "reasonable doubt" has been the subject of

much analysis and many refined distinctions, especially in
i
criminal cases, but it seems to be incapable of satisfactory
definition, probably because it defines itself ; for a reasonable
doubt is, after all that has been said, a doubt that is reason
able, and until definite limits can be found for the word "rea
sonable" the phrase cannot be made any clearer by definition.
For practical purposes it is easier to say what is not a rea
sonable doubt than to frame an all inclusive definition of the
phrase, and it is generally agreed that a merely speculative
or captious doubt raised to avoid a disagreeable conclusion is
not a reasonable doubt."
It seems on the whole very probable that in the three classes of
cases just discussed the courts have all been trying to say the same
thing, and that in spite of their diversity of expression they have
applied the very same doctrine in the very same way: that the test
of the actual existence of and reasonableness of any doubt in the
judicial mind as to the constitutionality of a statute is a test which
the court itself must apply accordingly to its own intellectual pro
cesses. It is a subjective and not an objective test; the reasonable
doubt, if there is any, must exist in the mind of the court.
Keeping in mind the facts which have been brought out with re
spect to the origin, basis and nature of the doctrine of reasonable
doubt, we are now prepared to approach the alleged repudiation of
that doctrine by five-to-four decisions upon questions of constitu
tionality.
4. The Argument That Five-to-Four Decisions Invalidating Stat
utes Violate the Doctrine of Reasonable Doubt. The argument that
a majority decision declaring a statute unconstitutional is utterly in
consistent with the doctrine of reasonable doubt has been briefly
alluded to at the outset of this paper34 and need not be greatly elabor
ated here. That argument proceeds somewhat along the following
lines: Five judges believe that a statute is unconstitutional; four
judges believe it to be constitutional. Therefore the question of its
constitutionality is a doubtful question. That this doubt as to the
constitutionality of the statute is a "reasonable doubt" must of
course be admitted unless one is to impugn the wisdom of the four
dissenting justices. Now the doctrine of reasonable doubt demands
"Supra, p. 772.
78*
MICHIGAN LAW REVIEW
While the conclusiveness of the chain of reasoning just outlined

has usually been regarded by its authors as entirely self-evident, it
has frequently been felt that additional strength is lent to this view
by the fact that all the members of a petit jury must agree upon the
guilt of the accused in order to overcome beyond reasonable doubt
the presumption of his innocence. A person accused of crime is
presumed to be innocent until his guilt has been demonstrated be
yond all reasonable doubt, and his guilt is held not to be demon
strated beyond all reasonable doubt so long as a single juror either
believes him innocent or entertains reasonable doubts as to his guilt.
The strictness with which this rule of unanimity in jury verdicts
has been adhered to for centuries demonstrates how ridiculous it
is to say that a statute has been proved invalid beyond reasonable
doubt when four out of nine judges believe the statute to be consti
tutional.40
It now remains to analyze and appraise these very plausible argu
ments and present what may be said in reply.
5. The Argument That Five-to-Four Decisions Are Not Inconsist
ent with the Doctrine of Reasonable Doubt. The first argument de
signed to refute the contentions just stated is one based on Thayer's
interesting theory of the real nature of the function performed by a
court in passing upon the constitutionality of an act passed by a co
ordinate branch of the government. This theory may best be stated
in Thayer's own words :41
"The courts have perceived with more or less distinctness
that this exercise of the judicial function does in truth go
far beyond the simple business which judges sometimes de
scribe. If their duty were in truth merely and nakedly to
ascertain the meaning of the text of the constitution and of
the impeached Act of the legislature, and to determine, as an
academic question, whether in the court's judgment the two
were in conflict, it would to be sure, be an elevated and im
portant office, one dealing with great matters, involving large
" Note 32, supra.
"Thayer, Legal Essays, 21-22, 3o. "A legislative act is not to be de
clared void upon a mere conflict of interpretation between the legislative and
judicial power. Before proceeding to annul, by judicial sentence, what has
been enacted by the lawmaking power, it should clearly appear that the act
cannot be supported by -any reasonable intendment or allowable presumption."
People v. Supervisors of Orange, 17 N. Y. 235, 241 (1858).
785
public considerations, but yet a function far simpler than it

really is. Having ascertained all this, yet there remains a
questionthe really momentous questionwhether, after all,
the court can disregard the Act. It cannot do this as a mere
matter of coursemerely because it is concluded that upon a
just and true construction the law is unconstitutional. That
is precisely the significance of the rule of administration that
the courts lay down. It can only disregard the Act when
those who have the right to make the laws have not merely
made a mistake, but have made a very clear oneso clear
that it is not open to rational question. That is the standard
of duty to which the courts bring legislative Acts ; that is the
test which they apply,not merely their own judgment as to
constitutionality, but their conclusion as to what -judgment
is permissible to another department which the constitution
has charged with the duty of making it. This rule recog
nizes that, having regard to the great, complex, ever-unfold
ing exigencies of government, much which will seem uncon
stitutional to one man, or body of men, may reasonably not
seem so to another ; that the constitution often admits of dif
ferent interpretations; that there is often a range of choice
and judgment; that in such cases the constitution does not
impose upon the legislature any one specific opinion, but
leaves open this range of choice ; and whatever choice is ra
tional is constitutional * * * the ultimate question is not what
is the true meaning of the constitution, but whether legisla
tion is sustainable or not." [ Writer's italics.]
In short, the courts are not in these cases to decide whether they
think a statute is constitutional ; they merely decide whether a rea
sonable man might have thought so. In Thayer's opinion they are
performing a function closely similar to that of a court in revising
the verdict of a jury,"the test is whether a reasonable person
could, upon the evidence, entertain the jury's opinion.""
Now if this is true, the significance of a five-to-four decision in
validating a law is entirely altered. It no longer means that the five
judges have ignored the reasonable doubts as to the validity of the
law which are held by their four colleagues. It merely means that
"Thayer, "Law and Fact in Jury Trials," 4 Harv. Law Rev. 167, 168;
Cases on Const1tut1onal Law, I, 672 ; Legal Essays, 2o-24.
786
MICHIGAN LAW REVIEW
the majority regard the unconstitutionality of the act as clear be

yond reasonable doubt, while the minority consider that some might
hold it as doubtful. All nine judges may agree in their own opin
ions that the act is invalid ; they are divided upon the question wheth
er a reasonable person must of necessity reach the same conclusion.
They differ, in short, not upon the question whether the legislature
was wrong, but upon the question whether the legislature was so
palpably and indisputably wrong that no reasonable person could say
that it was right.*3
The question at once arises whether this somewhat hair-splitting
distinction between what a judge thinks and what he thinks a reason
able man might have thought is actually recognized and acted upon
by the courts in passing upon the validity of laws. Obviously there can
be no authoritative answer to this question since few judges are dis
posed either to examine or to explain their mental processes with
much minuteness. There are instances in which courts have ex
pressed doubts as to the constitutionality of statutes but have still
upheld them.** There are also cases in which dissenting justices
without placing their own opinions positively on record have main
tained that laws ought to be upheld since reasonable men might re
gard them as valid.*5 These cases are most likely to occur when the
issue of constitutionality before the court is one depending upon
some question of degree, such as the limits to which exercises of the
"After quoting the passage from Baldwin set forth in note 35, supra,
Willoughby remarks: "This argument is not convincing. Admitting that
either the one or the other of the two opinions must be conceded to the
dissenting justices, it does not follow that the doctrine of reasonable doubt
is shown to be repudiated. The question which the court, as a court, has
to decide is as to the existence of this reasonable doubt. There may, of
course, be a difference of opinion as to this, but it is still this fact which the
court seeks to determine and which controls its decision. It is no more
proper to say that the principle is repudiated when the court is not unanimous,
than to hold that in passing by a divided court upon a question of contribu
tory negligence, the principle of reasonable doubt is not applied." WttLoughbY on Const1tut1on, I, 22, note.
** "We must therefore, while admitting the question is not free from
doubt, resolve that doubt in favor of the power of the legislature to authorize
the expenditures as provided in the act in question." Denver & R. G. R.
Co. v. Grand County, 51 Utah 294, 3o3 (1917).
** Mr. Justice Holmes, dissenting in Lochner v. New York, 198 U. S.
45 (l9S)t said: "This case is decided upon an economic theory which a
788
MICHIGAN LAW REVIEW
tinguished writers on constitutional law, Thayer amongst them, who

severely criticize this doctrine and maintain either directly or by
inference that the power of judicial review is more political than
judicial in character;48 but the fact remains that Marshall's argu
ment in Marbury v. Madison is still regarded as the orthodox basis
upon which to rest the power of the courts to invalidate laws and
would undoubtedly be followed by any judge who felt called upon
to justify his exercise of such power. Even a casual examination
of Marshall's doctrine, however, shows that it proceeds on the as
sumption that "the court's duty * * * is the mere and simple office
of construing two writings and comparing one with another, as two
contracts or two statutes are construed and compared when they are
said to conflict ; of declaring the true meaning of each, and.., if they
are opposed to each other, of carrying into effect the constitution as
being of superior obligation."49 This clearly imposes on the courts
the obligation of deciding according to their own best judgment
whether the statute does conflict with the constitution. They are not
expected to decide whether the legislature could reasonably have
concluded that they had power to pass the statute and if so to sus
tain it even against their own views as to its validity ; they are clear
ly under the duty of passing squarely upon the question whether the
statute does or does not violate the constitution. They are compar
ing two documents in an effort to determine what the law is govern
ing a concrete case. If they do not decide for themselves as a ju
dicial question whether the two documents conflict but try instead
to determine whether reasonable men could have harmonized them,
then it would seem that they have failed to exercise the essential
duty of declaring what the court finds the law to be, and have in
stead declared what some one else might reasonably have found it
necessity expound and interpret that rule. If two laws conflict with each
other, the courts must decide on the operation of each. So if a law be in
opposition to the constitution; if both the law and the constitution apply to
a particular case, so that the court must either decide that case conformably
to the law, disregarding the constitution ; or comformably to the constitu
tion, disregarding the law; the court must determine which of these con
flicting rules governs the case. This is of the very essence of judicial duty."
Marbury v. Madison, I Cranch 137, 177 (18o3).
"Thayer, Legal Essays, 1; Hall, Const1tut1onal Law, 35; W1lloughby on Const1tut1on, I, 3.
"Thayer, op. cit., 12.
79Q
MICHIGAN LAW REVIEW
eral conspicuous points at which the supposed analogy under con

sideration breaks down.
It is perfectly plain, in the first place, that historically the re
quirement of a unanimous verdict was in no way based on the theory
that a disagreement would prove the existence of reasonable doubts
as to the guilt of the accused. Such disagreement merely showed
that there was not evidence enough to convict. The jury was at the
outset merely a group of neighbors called in to give evidence regard
ing the crime. Theoretically they testified as to facts lying within
their own knowledge. "To require that twelve men should be unan
imous was simply to fix the amount of evidence which the law deem
ed to be conclusive of a matter in dispute."81 Of course this early
notion of the function of the jury has not survived; but there seems
no question but what the modern requirement of unanimity is mere
ly based on the practical necessity of having some definite and cer
tain objective test as to guilt or innocence. This test has been stand
ardized in our law as being met when twelve men chosen for the
purpose can agree; it is not met when fewer than twelve agree.52
Some other test might have been chosen and in earlier times was
chosen, but this happens to be the one which has prevailed.
" Forsythe, H1story of Tr1al by Jury, 239.
"In most modern systems of criminal law, the legislator has felt the
necessity of providing some condition which must be fulfilled before the
person accused can be punished. In systems founded on the Roman law,
this condition has generally been the confession of the accused ; and the
theory of torture was that, when a man was vehemently suspected, he should
be tested, by extreme pain. * * * In our country, the same object is com
pletely and rationally attained by the unanimity of the jurors. Our law
contains no rules as to the number of witnesses on whose evidence a man
must be convicted. It knows nothing of plena or semiplena probatio, but it
provides that no one shall be considered guilty unless a certain number of
average persons concur in thinking him so. This concurrence is the gist of
the institution. Take it away and the verdict of the jury becomes meaning
less." Stephen, General V1ew of the Cr1m1nal Law of England, 219-22o.
The essential reason for the unanimity rule is stated by Pollock and
Maitland : "The parties to the litigation have 'put themselves' upon a certain
test. That test is the voice of the country. Just as a corporation can have
but one will, so a country can have but one voice'le pays vint e dyt'. In a
later age this communal principle might have led to the acceptance of the
majority's verdict. But as yet men had not accepted the dogma that the
voice of a majority binds the community. In communal affairs they de
manded unanimity ; but minorities were expected to give way. Then at this
792
MICHIGAN LAW REVIEW
sons based on practical considerations of public policy which justify

making it more difficult, by requiring unanimity in the verdict of
the jury, to rebut the presumption of innocence than to rebut the
presumption of constitutionality attaching to a statute. In the first
place, the person accused of crime may be in peril of his life. Until
a fairly recent period this was apt to be the case if the prisoner was
charged with any kind of felony. The gross brutality of the early
criminal law made it a matter of most vital importance that the ac
cused be given the benefit of every possible doubt. He stood on
trial facing as his prosecutor the state itself, and mistakes made at
his expense might prove fatal. But no such reasons exist for mak
ing it quite so difficult to pronounce invalid a legislative enactment.
A West Virginia Court puts this distinction very clearly :59
"It has been said that it is better that ninety-nine guilty
persons should escape than that one innocent person should
be condemned. But not so with the question before us. It is
not better that the Constitution should be violated ninety
and nine times by the legislature than that the courts should
erroneously hold one act of the legislature unconstitutional.
We cannot raise presumptions in favor of legislative infalli
bility as strong as those of a jury in favor of the innocence
of a prisoner charged with murder."
On the whole, a close scrutiny of the question seems to show that
the analogy of the unanimity requirement in the jury system does
not afford any support to the view that the doctrine of reasonable
doubt is violated by a five-to-four decision declaring a statute void.
It seems to the writer that those who maintain that such a con
flict or inconsistency does exist fail to understand correctly what
the doctrine of reasonable doubt actually means. The most work
able theory in regard to the matter is this : the doctrine of reasonable
doubt means that a statute should not be declared unconstitutional
so long as a reasonable doubt as to its invalidity remains in the
minds of those to whom is entrusted the power to decide the' ques
tion of constitutionalityand under the present rule this means a
majority of the court. In other words, so long as the rule exists
that five members of the court decide questions for the court, all
the doctrine can be reasonably said to mean is that five of the nine
"Varner v. Martin, 21 W. Va. 534, 541 (1883).
794
MICHIGAN LAW REVIEW
the same result be produced by the disagreement of other learned

men whose opinions are entitled to respect? The knowledge that
Mr. Hughes, Mr. Taft, and Mr. Root after impartial consideration
had concluded a law to be constitutional might and probably would
be quite as disturbing to the assurance of mind with which a ma
jority of the Supreme Court reached an opposite conclusion as would
be opposing views of their own colleagues. Of course the applica
tion of any such test of reasonable doubt as this would create a situa
tion in which no law would ever be held invalid because there could
always be found some lawyer of distinction to assert that it was
valid. It must be concluded that the only sensible construction to
place upon the doctrine of reasonable doubt is the one stated above :
namely, the majority of the court, being legally empowered to de
cide the question, should not hold a law unconstitutional if any rea
sonable doubt as to its invalidity remains in their own minds. The
doubts or conflicting views of every one else including their dissent
ing associates they may ignore.
There is plenty of evidence that this is exactly the interpretation
which the courts themselves have placed upon the doctrine of rea
sonable doubt. Without pretending to have examined the mass of
cases in which there have been disagreements amongst judges on
questions of constitutionality, the writer in an extended search has
found no case in which such a division of opinion has been regarded
as evidence that a reasonable doubt existed as to the invalidity of
the statute, which doubt must compel the court to uphold the law
even when a majority of the judges regarded it as invalid. Courts
seem to have proceeded upon the simple assumption that all the doca pretension like this and the power vested by the constitution in Congress
with regard to the territories, on the contrary, there is an absolute incongruity
between them. * * *
"The injustice and extravagance necessarily implied in a supposition like
this, cannot be rationally imputed to the patriotic or the honest, or to those
who were merely sane." Dred Scott v. Sandford, 19 How. 393, 489 (1856).
Note also the opening words of Mr. Justice McKenna's dissent in the
recent Housing Law decision : "The Chief Justice, Mr. Justice Van Devanter, Mr. Justice McReynolds and I dissent from the opinion and judg
ment of the court. The grounds of dissent are the explicit provisions of the
constitution of the United States ; the specifications of the grounds are the
irresistible deductions from those provisions and, we think, would require
no expression but for the opposition of those whose judgments challenge
attention." Block v. Hirsh, decided April 18, 1921. No. 64o, Oct. Term, 192o.
796
MICHIGAN LAW REVIEW
Senator Bourne in 191 1.01 After nearly every unpopular five-tofour decision there has been more or less comment indicating dissat
isfaction with the rule making such decisions possible.
These various proposals and discussions have borne some fruit.
Even Marshall felt the need of making some concessions to those
who were accusing the Supreme Court of invalidating state laws by
a bare majority of a quorum, and in 1834 laid down a rule that the
Court would not invalidate a state law unless a majority of a full
bench (seven at that time) should concur in the decision.92 This rule
has prevailed ever since in the United States courts and has been
adopted also in the courts of several states.9,1 In 1912 Ohio adopted
a constitutional amendment providing that all but one of the judges
of the supreme court of the state must concur in a decision holding
a statute unconstitutional unless such decision is in affrmance of the
decision of the lower court.94 In 1918 the constitution of North
Warren, op. cit., 188. In 1868, Representative Wilson introduced a bill which
required a two-thirds majority of the court to invalidate any act of Con
gress. This bill passed the House but not the Senate, Warren, op. cit., 189.
" The text of this bill together with Senator Bourne's speech in its de
fense, is printed as an appendix to Collins' Fourteenth Amendment and
the States, 184-187.
82 "The practice of this court is not (except in cases of absolute neces
sity) to deliver any judgment in cases where constitutional questions are in
volved unless four judges concur in opinion, thus making the decision that of
a majority of the whole court." New York v. Miln, 8 Peters 1o2, 122 (1834).
Warren points out the practical significance of this rule. "It is interest
ing to note that if the court had followed the precedent which (it was
charged) had been set in 1823. in Green v. Biddle, and had delivered its
opinion by a mere majority of the judges present, the whole course of
American legal history would have been changed ; for the constitutional
cases then pending were Charles River Bridge v. Warren Bridge, New York
v. Miln, and Briscoe v. Bank of the Commonwealth of Kentuckycases of
immense importance, involving the subjects "of monopoly, interstate com
merce, and State's Rights, all three of which the Supreme Court, under
Taney as Chief Justice, in 1837 (after Marshall's death), decided quite con
trary to the view held by Marshall in 1834." Warren, op. cit., 166.
"Discussed with elaborate citation of cases in 15 CoRrus Jur1s, 938,
7 Rul1ng Case Law 1oo6. For requirements of this kind in state constitu
tions see Index D1gest of State Const1tut1ons, 384.
"No law shall be held unconstitutional and void by the supreme court
without the concurrence of at least all but one of the judges, except in the
affirmance of a judgment of the court of appeals declaring a law unconstitu
tional and void." Const1tut1on of Oh1o, Art. IV, Sec. 2.
7*8
MICHIGAN LAW REVIEW
allow the Supreme Court to declare laws unconstitutional by a de

cision of five to four is to place undue power in the hands of one
man.99 It is this one judge who renders the decision of the court
and who actually invalidates the law. He alone can overrule both
houses of Congress, the President, and all the lower courts. This
one judge, urge the critics, ought not to exercise such stupendous
power, nor ought any one man to be asked to assume such enor
mous responsibility. Such a concentration of authority is incom
patible with any notion of a legislative branch of government en
dowed with coordinate powers.
In the second place, it is contended that such a rule as that under
discussion would operate as a substantial check upon the exercise
by the courts of the power to invalidate laws. Fewer statutes would
be declared unconstitutional, and this on the whole would be a good
thing. Especially would such a result be desirable in the field of
police legislation, where under the present system many laws are
held void by closely divided courts largely because the judges disa
gree with the legislature upon broad questions of social and eco
nomic policy. Here at least it would be a good thing to make it sub
stantially more difficult to overrule the legislature. This whole ar
gument proceeds upon the assumption either that the power of ju
dicial review ought not to be enjoyed at all by the courts or that it
ought to be exercised much less frequently. It has been true in
general that those who have been active in furthering the adoption
of the unanimity rule, or some approach to it, in respect to court
decisions have been those who have felt that the courts have usurped
the power to pass upon the constitutionality of statutes and have
sought either to abolish it or to render it virtually ineffective. It
does not necessarily follow, however, that a belief in the desirability
of the rule under consideration is incompatible with a staunch advo
cacy of the doctrine of judicial review of legislation.
"This point was emphasized by Mr. Bryan in his famous "Cross of
Gold" Speech in the Democratic National Convention of 18g6. He said:
"They say that we passed an unconstitutional law ; we deny it. The income
tax law was not unconstitutional when it was passed; it was not unconstitu
tional when it went before the Supreme Court for the first time; it did not
become unconstitutional until one of the judges changed his mind, and we
cannot be expected to know when a judge will change his mind." Speeches
of Wm. Jenn1ngs Bryan, I, 242.
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MICHIGAN LAW REVIEW
stitutional.70 The difference between the present practice and that

which is being proposed is not that the "marginal" judge exercises
any more or any different power in one case than in the other, but
merely that he is rendered more conspicuous by the existing rule.
It is argued in the second place that the courts do not at present
exercise their power to invalidate laws too frequently or without
sufficient cause and that no restriction of the kind proposed is neces
sary as a check upon the abuse of this power. It is here pointed
out that the Supreme Court of the United States in its entire his
tory has invalidated not more than forty statutes passed by Congress
and not more than three hundred state statutes or constitutional pro
visions.71 It is further urged that of the forty odd cases holding
acts of Congress void nearly half were decided without any dissents
and only five were decided by a bare majority of the court. In the
face of these statistics it seems futile to argue that five-to-four de
cisions are so frequent as to cause a reasonable complaint. To set
up an arbitrary barrier making it more difficult to declare laws void
would increase the danger from irresponsible legislation and lessen
the protection now enjoyed by the citizen in respect to his constitu
tional rights. Even in the controversial field of the police power the
courts are at present adopting a sufficiently liberal viewpoint and
ought not to be hindered in the performance of their important func
tion of curbing legislative excesses.
It is also pointed out that there is nothing in the experience of
Ohio or North Dakota under the rules prevailing in those states72
to indicate that anything substantial has been accomplished by re
quiring an extraordinary majority of the supreme court to concur in
declaring a law void. The Ohio rule has been in effect about eight
years and the North Dakota rule two years. In each state one case
has been decided in which this new rule has been called into opera Under a rule requiring unanimity the presence on the bench of a single
judge who did not believe the courts ought to exercise the power of judicial
review under any circumstances could prevent any law from being invali
dated irrespective of the merits of the constitutional question. See Pro
ceed1ngs and Debates, Const1tut1onal Convent1on of Oh1o, 1o12, I, 1o29.
" These figures are only approximate. They are based upon the sta
tistical data in Blaine Moore's The Supreme Court and Unconst1tut1onal
Leg1slat1on, Columbia University, Studies in Economics, History and Public
Law, Vol. 54, No. 2.
** Supra, p. 796.
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MICHIGAN LAW REVIEW
differ widely. One cannot declare dogmatically that a unanimity

rule in respect to Supreme Court decisions ought or ought not to
be adopted. The study which the writer has devoted to the prob
lem, however, has not convinced him that the adoption of such a
rule would produce beneficial results of any substantial importance.
The popular demand for, such a requirement comes from a more
or less widespread dissatisfaction with court decisions invalidating
laws regarded by the layman as useful and desirable. These are in
the main laws passed in the exercise of the police power and relate
to labor conditions, public health and morals. The constitutional
issues involved have been mixed questions of law and fact and the
courts have in some cases shown themselves unfamiliar with the
social and economic data upon which their decisions must be predi
cated. It seems to the writer that the most rational remedy for this
situation is to establish such changes in the methods of trying cases
involving the validity of social and economic legislation as would
assure the court full access to all the data necessary for a reasonable
and balanced judgment upon the merits of each case. Some such
plans of this nature as those suggested by Professor Freund and
Professor Kales70 would be more likely to correct such undesirable
tendencies as may exist in the judicial review of legislation than
would an arbitrary requirement of a unanimous decision. In
other words it would be more desirable to establish rules of pro
cedure which would make it easier for the court to reach a correct
Freund's suggestion is the establishment of a rule based upon the
analogy of the appellate review of judicial decisions of fact. "It would mean
that there must have been evidence of facts within the reach of the legisla
ture sufficient to support its judgment that an exigency existed for its inter
ference [in the exercise of the police power]. "Constitutional Limitations
and Labor Legislation," 4 III. Law Rev1ew. 623.
"The only way to meet the skepticism of the court * * * is to build
up a record of evidence in the trial court, by witnesses produced for cross
examinationwitnesses who will testify to the facts and opinions upon which
a justification may be based, and will establish their conclusions as to those
which, if not already generally accepted, are nevertheless certain to be ac
cepted. Such a method of putting in a case challenges the opponents to
produce evidence on their side. If they fail to do so the basis is laid for
the contention in the Supreme Court that they must take the consequences
of their default, and that the court cannot, in the face of full and uncontroverted proofs, ignore in the particular case before it facts and data which,
if true, show a justification for the legislation in question. "New Methods
in Due-Process Cases," 12 Amer. Pol1t1cal Sc1ence Rev. 249.
803
decision upon these difficult questions than to prevent the court

from giving effect to the judgment of a majority of its members in
certain cases regardless of what that judgment may be. The unan
imity rule impresses the writer as a flank movement upon a problem
which might better be attacked in the front.
Robert Eugene Cushman.
University of Minnesota.
THE STATUTES OF EDWARD ITHEIR RELATION TO

FINANCE AND ADMINISTRATION.
PERHAPS the most far-reaching effect of the American Civil
war. in the long run, could be illustrated by a chart showing
government expenditures before and after that rebirth of the na
tion. The jump from the bottom of the chart to the top, with no
apparent tendency to return, reflects a new conception of the func
tion of the government, the creation of new powers and a redistri
bution of the old ones. In like manner one of the most significant
features of the present period of reconstruction throughout the civ
ilized world seems likely to find its graphic representation in a
curve that will show not a decrease, but a vast increase in the func
tions of government. The money needs alone, one can readily see
without giving himself up to any dogmatic economic interpretation
of history, will have a necessary bearing on the relation between the
government and the individual and on the course of legal develop
mentnot only because the individual must be reckoned with as
the tax-payer, not only because old sources of revenue must be
drained and new sources tapped, but for more subtle reasons that
can be suggested best by a reconsideration of a period in legal politi
cal history that most closely resembles our own in many respects,
the period when feudal revenues ceased to satisfy, and the present
order of taxation, politics and law was born.
Lord Coke, in his Second Institute, playing on the word "estab
lishments" used in the Introduction to the Statute of Westminster
the First, declares:
"Justly may not only these chapters challenge that name,
but all other the statutes made in the raigne of this king may
be styled by the name of establishments, because they are
more constant, standing and durable laws, then have been
made ever since ; so as king Edward I, who (as Sir William
Herle, chiefe justice of the court of common pleas, that lived
in his time, said, fait le pluis sage roy que unques fuit) may
well be called our Justinian."1
And so Edward I has passed into history as the English Justinian.
Blackstone speaks as a matter of course of the "pitch of perfec'2 Inst., p. 156.
8o6
MICHIGAN LAW REVIEW
(1292).4 It is at least true that a marked change in Edward's dis

position dates from this time. But whether or not the King thought
seriously of imitating Alphonso, many of his lawyers were certainly
moved with the idea of reducing the whole law of England to writ
ing, witness the host of books that appear almost simultaneously,
Britton, and the Fleta, the Fet Assaver, Hengham, Gilbert of Thorn
ton's book (described by Selden and apparently rediscovered by Pro
fessor Woodbine), and shall we mention The Mirror?* Apparent
ly the idea of setting out the whole law,in several instances it
was set down in the form of a series of commands in the name of
the King (Fet Assaver and Britton) and in one instance at the
command of the King (Thornton) was not the desideratum lacking
to make Edward a true Justinian.
That the King and his advisers did not lack the necessary will
power to put into the form of a statute what they wished the law
of England to be, is sufficiently evidenced by the statutes which have
come down to us. In reading these, it is important to bear in mind
the historical setting in which they were produced. In the first
place, the early statutesthe three statutes of Westminster, that of
Winchester, that of Gloucester, and that of Acton Burnel passed
before 1292were not the works of a parliament. The model Par
liament was not assembled until 1295. These statutes were more
of the nature of ordinances drawn up by advisers of the King and
given his formal stamp of approval in the presence of representa
tives of the clergy and of the tenants in chief of the Crown.8 Fur' This is also the date of the death of his great Chancellor, Robert
Burnel, and the possibility must not be overlooked that he was responsible
for a large part of the Edwardian legislation. See infra on the authorship
of the statutes.
8The dates assigned by the latest editors to these books agree in placing
them well within Edward's reign. The Fet Assaver, not the mere fragment
that has accidentally clung to our copies of the Fleta, but the treatise pre
sented in Woodbine's Four Th1rteenth Century Law Tracts, belongs to
the 128o's, and probably deserves the title heretofore given to the Br1tton of
being the first great law book in Norman French. The book called Br1tton
is supposed to belong to the year 1291 or 12o2. The Fleta is attributed to 129o.
Hengham's Summae (Magna and Parva) belong about to the same period.
Horne's M1rror of Just1ces is set down for 1285-129o. Gilbert of Thornton
was Chief Justice from 1289-1295. (See I Woodb1ne's Bracton, p. 16, and
25 Law Quarterly Rev1ew, 44). Besides, several other abridgements and
adaptations of Bratton belong to this period.
8Thus the Statute of Westminster was drawn up "by his council and
8o8
MICHIGAN LAW REVIEW
himself to the problem of alienation by his tenants in chief and

imposed upon them fines and required licenses for alienation.8 In
the third year of his reign, he begins to raise the question, though
not eo nomine of Quo Warranto"by what right the barons exercise
any power that deviates in the slightest from a normal type of feudal
ism that the King seems to have in mind. The theory with which he
begins is that certain rights are regaiia and can be exercised by the
barons only upon showing actual grants from the King or his pre
decessor in title. In his desire to have all rights and duties set
down in black and white, he begins about this time his "extents" of
the manors,10 that is to say, his investigations similar to the Dooms
day inquests of King WilKam I, for the purpose of cataloguing all
the property and interests of the King. There is, however, this dif
ference between the effort of William in inscribing every pig and
cow in England, and that of his equally thrifty descendant: William
was satisfied with cataloguing and enforcing his rights as he found
them ; Edward was determined not only to catalogue but to normal
ize and reduce to a standard the claims of the crown in all parts of
England. In the sixth year of his reign, a statute of Quo Warranto
provided drastic steps for the recaption of all usurped regalia.11
There is a curious story told by the author of the Fleta of a sup
posed meeting or conclave of all the princes of Christendom in the
fourth year of Edward's reign at Montpelier, in which it was de
clared that no king had the power of permanently alienating regalia
or essentially royal rights.12 Selden in his Dissertatio has shown
pretty conclusively that the meeting never took place.13 We should
be sorry to put the serious-minded author of the Fleta in the same
81 Ed. I, Stat. 2, Ch. 12: License and fines for alienation by Tenants
in Capite.
83 Ed. I, Stat, of Westm1nster I, Ch. 19, deals with -the King's debts,
. e., "duties of things due, as rents, fines, issues, amerciaments and other
duties due to the king." 2 Inst. 198. Local claims of customs are resisted
in Ch. 23, 31, 35 ; Ch. 5o expressly saves to the king "les droits que a luy
appertcign." The Quo Warranto statute of 6 E. I. recites that a day had
been set in the recent Parliament at Westminster to examine charters of
liberties and the like held by subjects to prevent usurpations.
M4 Ed. I, Stat. I: Extenta Manerii.
"6 Ed. I, Stat. de Quo Warranto. This has come down to us prefixed
to the Statute op Gloucester.
" Selden, D1ssertat1o, Ch. 1o, Sec. 4.
" Selden, after minute examination, concludes: Atque imponi sibi passus
8IO
MICHIGAN LAW REVIEW
land has deduced from a sudden break in the reasoning in the

Placita de Quo Warranto) a prescription of one hundred years go
ing back to the beginning of legal memory, was held sufficient to
defeat the claim of the King.19
Perhaps we should not take the Fleta too seriously, or at least,
too literally, in its comments on the matter of Quo Warranto. With
out attempting to solve the mystery of the authorship of this book,
an examination of its contents may throw some light on Edward's
problems from the point of view of an administrative officer. True,
Selden's conjecture is generally accepted that the author of the Fleta
may have been one of the judges imprisoned by Edward on his return
to England from Gascony in 1289. Does he not tell us that he was
imprisoned in "the Fleet" at the time of writing the book? But
aside from the fact that this detail of imprisonment looks suspicious
ly like a literary trick of the timethe author of The Mirror also
prates of his imprisonmentinternal evidence points to an author
who was interested in the work of a steward or other high official
in a manor, and particularly one in the service of the King. A great
part of the second book, for example, is translated into Latin from
the French of Walter of Henley and other authors of books on
husbandry.17 The rules that should govern the conduct of the vari
ous officials of a manor, rules of good husbandry as well as of law,
are set down as duties. The quasi-feudal rights of the King, for
example his right to royal minerals and royal fishes, and the Queen's
right to the tails of all whales, are set out as complete headings.1*
The only cases of any interest added by the author of this abridge
ment of Bratton, for that is what the book amounts to, are inci
dents narrated that took place in the train of the King when he was
travelling.10 So we may assume that the author of the Fleta who
ever he was, was prejudiced on the side of the King in the matter
of regalia and the entire Quo Warranto controversy. Whether he
would have been so prejudiced had he been one of the victims of the
16 1 St. Realm 1o7; 2 Selden Soc1ety Pud., lxxviii; 1 Pol. & Ma1t.,
*I47, *SS9, citing Ann. Dunst., p. 36o, and Ann. Waverl. 395.
" In Lamond and Cunn1ngham, Walter of Henley's Husbandry, Lon
don, 18oo, page xxxii, chapters 71-88 of Book 2 of the Fleta are shown to
be derived from the Senechauc1e, Walter of Henley, and Extknta
Maner11.
M Cf. pp. 61 ff. of the vulgate edition, De Sturg1one, De Balaena.
See, for example, the cases cited on pp. 67 of the printed editions.
STATUTES OF EDWARD I
8n
King's zeal in establishing order among the King's servants, includ

ing the judges, is, to say the least, doubtful.
There are reasons in the economic history of England, quite apart
from the king's attitudeor that of his advisers, whom Lord Coke
prefers to blamethat explain the deep concern of the government
administrators over the sources of royal income, and their jealousy
of every royal privilege which to the detriment of the king's ex
chequer seemed to be usurped by a subject. Briefly the condition
may be summarized as the failure of the feudal system as a revenue
system. Taxation in any modern sense was still to be invented.
And the introduction of a substitute system of revenue was delayed
by the inability of the people of that day to realize the economic
changes that had come about : the fall in the value of money since
the ancient items, originally payable in kind, had been commuted to
fixed sums ; the rapid expansion of government functions and the
attendant expense ; the tremendous cost of the newer modes of war
fare ; and the devices that were being successfully resorted to to
defeat the expectations of landlords and particularly the greatest
landlord, the king.20 Deficit financing forces the king to exploit all
his rights to the very limit, and an all-around tightening up of ad
ministrative machinery is the result.
At first glance the great Statute of Westminster the First is es
sentially a provision for a more scrupulous administration of the
king's business. It reads like a long circular letter to servants ad
monishing them to do their duties faithfully. But the scope and ar
rangement of this circular letter is more interesting than its partic
ular provisions for here we see the hand of the codifier. There is
not to be a tightening of the machinery here and there, but a sys
tematic overhauling of the entire organization. In all of the longer
statutes of King Edward, there is an attempt to survey the general
state of the realm and to provide for the removal of all evils dis
cerned and to fill all gaps. There is even some evidence of an at
tempt to review all important topics in a more or less systematic
order. Thus in the Statute of Westminster the First we begin with
the peace of the church and the realm. We are reminded of Ethelbert's dooms of nearly seven centuries earlier: "God's fee and the
church's twelvefold." Of course, the writing was done by clerici,
and it was natural to put the church first. So Edward's statute pro"Jenks, Edward I, p. 324.
813
MICHIGAN LAW REVIEW
ceeds to the benefit of clergy, and disposing of the church's interest,

it reaches the King's : escapes, wrecks. Then come public interests :
elections, the conduct of courts and litigants, criminal matters. We
now reach semi-private law, that is feudal law : lands in ward,
wardship, distress; perhaps markets and fairs should be included
here. Next we come to purely private matters, preeminently, to be
sure, those touching the magnati, the great men of the realm, Scandala magnati, aids for knighthood, and the like. Finally, we reach
a miscellaneous heading, the central theme of which is the purely
private law involved in the writ of right. If too rigid an adherence
to this system is not demanded, we shall find a general tendency in
the other Edwardian statuteswhich, after all, are nothing but the
finally edited products of whole conferences of the embryonic par
liamentto proceed from the higher interests of public law by grad
ations to such private law interests as come to the attention of the
King. The statute of Gloucester already discussed descends from
the all-important royal theme of Quo Warranto in the preamble
(which may have been prefixed at a later date) to essoins and other
details in real actions, touching on feudal and criminal law by the
way. The Statute of Westminster the Second may seem an excep
tion, but that is because the matters of highest import were in that
year treated in separate statutes. Thus, the Statute of Winchester,
with its archaic provision for hue and cry and the closing of city
gates at sunset, deals with the peace of the realm; and the writ (or
shall we call it a statute?) Circumspecte Agatis, deals with the trou
blesome questions of the church. Hence the residuary statute known
as Westminster the Second is concerned chiefly with feudal and pri
vate matters. The first chapter is almost worthy of a place in con
stitutional lawDe Donis Conditionalibus : it creates a new kind
of estate. Its theme takes preference even over the jurisdiction of
the King's court and certain minor church matters. There follows
the usual series of feudal and procedural topics and then a most un
usual amount of attention is devoted to private law. Chapter 24 in
cludes the famous provision adding brevia magistralia to the brev'1a
formata, in consimilibus casubus. The statute also goes into such mat
ters as executor's liability (Chapters 19, 23), guardianship (Chap
ter 35). and the misuse of legal procedure (Chapters 36, 49), and
particularly into what was becoming a source of irritation between
the lord and manthe question of common-rights (Chapter 46).
The other statute of major importance is sometimes called West
STATUTES OF EDWARD l
8lj
minster the Third, but is better known from its opening words as
Quia Emptores. This brief statute represents at once the climax of
Edward's work as an organizer of the feudalism of his day and the
beginning of the dissolution of that feudalism. The abolition of
subinfeudation is calculated primarily to leave things as they are
and to prevent constant readjustments of the feudal pyramid. It is
entirely in accord with Edward's efforts in his extent of the manors
and his Quo Warranto proceedings. But without subinfeudation,
feudalism is bound to decay. Old manors may be destroyed by the
loss of the necessary incidents to a manor's existence; new manors
cannot be created under the terms of the statute of 129o.
Thus, whatever the result of Edward's earlier statutes may have
been, his purpose was consistently to organize and define. The old
order is theoretically sound, and the king's difficulties are to be end
ed by better management and the stopping of such leaks as those
recited in the preamble to the statute De Donis (Westminster II.)
or to Quia Emptores (Westminster III.). Mortmain and the vari
ous conflicts with Church jurisdiction in which the king is by no
means uniformly successful have the same basis, for jurisdiction is
from the point of view of feudal society as much a source of revenue
as the ownership of land.21
Besides stopping the leaks, the king naturally seeks to expand the
existing sources of income and to devise others. His treatment of
the Jews and his dealings with foreign merchants are best explained
in this connection. From the 17th of December in the fiftieth year
of Henry III, we are told, until the Tuesday in Shrovetide the sec
ond year of Edward I, which was about seven years, the crown had
four hundred and twenty thousand pounds, fifteen shillings and
"The first statute of Mortmain is that of 1279, 7 Ed. I, Stat. 2. The
statute C1rcumspecte Agat1s of 1285 is really a writ issued by the King
rather than an act of Parliament in which the King's courts are warned not
to interfere with the jurisdiction of the Bishop of Norwich and his college.
It suggests the existence of a dispute on such matters as defamation! com
promise, or concession on the part of the King. At least the church juris
diction is defined and such definition is in accordance with Edward's gen
eral policy to remove all doubts as to the outward limit of his rights. The
economic contest with the church continues until the end of Edward's days.
By the Bull Clericis Laicos, Pope Boniface in 1296 sought to put an end to
the taxing of ecclesiastical persons. The Statute of Carl1sle of 13o7 re
taliates by an attempt to stop the taxing of English religious orders by
foreign bodies on the Continent.
8 14
MICHIGAN LAW REVIEW
four pence de exitiis Judaismi.22 In 1287 he extorted from them

twelve thousand pounds.23 Three years later, in response to popular
clamor, was passed his statute De Judaismo followed by his writ
De Judaeis Regni Angliae Bxeuntibus.2* The king had squeezed this
sponge dry, and partly beatenthough he capitalized even his beat
ing by having a fifteenth granted to him by his parliament pro ex- '
p1tlsione J ndaeorum"'he turned to Italian and Cahorsin bankers
to mortgage forthcoming revenue to them. To fill the gaps in the
feudal system in which the Jews had learned to fit themselves as
traders, money lenders and petty artizans, Edward took under his
protection foreign traders from the continent.20
That Edward's statutes did not always accomplish the purpose for
which he had set out has already been illustrated in connection with
the Statute of Quia Emptores. Perhaps another illustration is the
famous clause with reference to the providing of writs in consimilibus casubus.27 Blackstone (quoting Fairfax, a judge of the time
of Edward III.) suggests that if this clause had been liberally used
by the courts, the development of the Court of Chancery would
have been unnecessary in England,28 and in general, commentators
on the passage have assumed that it was intended to serve as a gen
eral license for the making of new writs in particular cases. It is
doubtful whether this was the purpose of the clause. The contro
versy had long been raging between those factions in England which
were interested in the free multiplication of writs and those inter
ested in curtailing the power of the King as represented by the
Chancellor. In 1258, for example, the barons prescribed an oath
"2 Coke Inst1tutes, 5o6 ff.
ajENKS, Edward I, 326.
" See 15 Selden Soc1ety Pub., p. xli.
** 2 Coke Inst1tutes, 5o7.
M In- 1283 the Statute of Merchants, or of Acton Burnel, the King
makes a great concession to merchants, extended by another statute two
years later whereby they are able to collect their debts out of the land of
their debtors. It must be remembered that the merchants were foreigners
and could function in England only by virtue of the King's commission, for
which they paid both directly and indirectly. It was, of course, easier to
obtain a grant of customs to the King to be paid by the merchants than a
tax which would fall directly and visibly on Englishmen. Cf, the Grant of
Customs on Wool, Woolfells, and Leather, dated 1275, in Stubbs' S. C. 451.
" Stat. or Westm1nster II, Ch. 24.
"3 Be. Com. 51.
816
MICHIGAN LAW REVIEW
as a legislative draftsman or legal author, he seems to have remained

in favor until a ripe old age. Internal evidence suggests several in
teresting points about the authorship of these acts. In the first place,
clerici clearly had a hand in them. This is evidenced not only by the
arrangement of the subject matter which places the interests of the
church first, but also by the use of the Latin language in all of
those passages in which the church is at all interested, even where
they occur in the middle of a French version of a statute. The stat
utes of this period, it must be remembered, are written almost indis
criminately in Latin and French. On the other hand, in the Latin
texts of the statute of Westminster II, a passage in which the church
has no interest, but one in which the rising profesison of the law is
more deeply concerned, Chapter 49, on Champerty by Justices, is m
French. We have reached a period of English law when its custody
is passing from the hands of the men who are primarily church men
to that of men who may be incidentally churchmen, but who are pri
marily lawyers.35
If, now, we turn to the most detailed and carefully drawn sections
of the law, we cannot escape the conviction that they have been
drawn by men thoroughly conversant with some particular part of
the administration of government. Contrast, for example, the mis
chiefs which they undertake to remedy with the abuses so volubly
uttered by the contemporary author of The Mirror. In the statutes
we find no abstractions, nothing Utopian. On the contrary, West
minster I begins with the assumption that the law is good enough
in most particulars if it is only observed. Administrative officers
are cautioned to see that it is observed hereafter, and details that
had formerly been left to their discretion are now put down in such
a way as to limit their discretion for the future. In fact, it is al
most impossible to distinguish between some of the so-called stat
utes and mere administrative orders. The extenta manneriPa are
clearly directions to public officials. Is Westminster I less so? The
so-called statuta de officio coronatoris given in the Books as the
second statute of the fourth year of Edward I is nothing but a trans
lation from Bratton.37 The year 1293 gives us what purports to be"
the custom of Kent as ascertained by an eyrethis, too, has someM 1 Pol. & Ma1t. *1go, *195.
*0 Sometimes referred to as 4 Ed. I, Stat. I.
" Book 3, Chap. 5. Cf. 2 Pol. & Ma1t. *641.
818
MICHIGAN LAW REVIEW
his oath is fruitless. His humble appeal to the people represented

in the new Parliament accomplishes the immediate end of serving
the King's financial needs, but at the same time it marks the end
of royal legislation and the beginning of parliamentary statutes.
The king does not realize what has happened, perhaps no one at
this age does. The feudal revenues have failedand taxation is
born, and with it its twin sister, parliamentary power. In course
of time feudalism fades away and an economic organization of so
ciety related to the parliamentary system and to taxation takes its
place. We may call it capitalism or by any other name which will
indicate the fact that the power of making laws is connected with
the power to grant or withhold money. This system is not exactly
the same as that which gives a power of control to majorities inde
pendently of who pays the taxes. In fact, it was a long time before
the new parliament of Edward's day realized that it was a law-mak
ing power as well as a check upon the sovereign. Perhaps it is fair
to say that in Edward's day the royal prerogative of legislation has
been taken away, and that nothing has been put in its placeand
this summary may explain why it is that for centuries to come noth
ing in England equals the legislative activity of the last years of
royal law-making, the first half" of Edward's reign. The paralysis
of the royal hand, rather than the excellence of the work that it has
done, accomplishes the crystallization, the quasi-codification of Eng
lish law at the beginning of the period of the Year Books.
Nathan Isaacs.
University of Pittsburgh School of Law.
82o
MICHIGAN LAW REVIEW
treaty of peace which, in the preamble, mentioned the desire of the

two parties "to end the war now existing between the two coun
tries."5
The principle thus upheld by the Supreme Court, by the AttorneyGeneral and by the treaty-making authority would seem to be too
well established to be questioned. Nevertheless, in view of the
lengthy delay which has followed the signing of the armistices with
Germany and Austria-Hungary in November, 1918, due to the fail
ure of the President and Senate to agree upon the terms of a defin
itive treaty, some question has been raised as to whether our status
since the suspension of hostilities is one of war or of peace. Diplo
matic relations with the Central Powers remain severed, but com
mercial relations with Germany have been to some extent resumed.8
President Wilson, in transmitting to Congress on November II,
1918, the terms of the armistice, made the statement that "the war
thus comes to an end, for having accepted these terms of the armis
tice it will be impossible for the German command to renew it."
The President could scarcely have intended by this statement to in
dicate his belief that the war had been legally terminated, but
merely that for practical purposes actual warfare was at an end.
The above statement of the President, however, was construed by
a lower Federal court as equivalent to an official proclamation by the
President of the end of the war. The question before the court
involved the construction of a provision of an act of Congress of
1917 which made criminal certain conduct if committed "during the
present war." The court declined to order the penalty inflicted, on
the ground that the war had in fact ended uppn the announcement
of the President.7
This, however, does not seem to have been a well-considered case.
Even though the statement of the President had been intended as
an official proclamation of the legal end of the war, it is somewhat
doubtful whether the President could thus, by his sole act, upon the
mere signing of an armistice with a foreign belligerent, bring the
war to a legal termination. It is true that the Supreme Court seems
1 Mal1.oy, Treat1es, II, 169o.
8 Limited intercourse with the enemy may be permitted, even during
hostilities, by act of Congress prescribing the conditions under which it
may be carried on. Hamilton v. Dillin, 21 Wall. 73.
7 U. S. v. Hicks, 256 Fed. 7o7 (1919).
THE TERMINATION OF WAR
821
to have held that the Civil War was ended in different states on dif
ferent dates by Presidential proclamations.8 In case Congress had
by act or joint resolution adopted a different date as the end of the
Civil War from that mentioned in the President's proclamation, it
is not clear that the court would not have followed the determination
of Congress rather than of the President. Congress, however, in a
statute continuing a certain rate of pay to soldiers in the army did
so "for three years after the close of the rebellion, as announced by
the President" in his proclamation.9 Congress thus adopted the date
set by the President, and the Supreme Court, in other cases, seems
to take the actions of both the President and Congress into consid
eration in determining the date of the conclusion of the Civil War.10
Even though it should be held that the proclamation of the Presi
dent alone was sufficient to terminate the Civil War, nevertheless
it is to be remembered that that war, though having in some of its
aspects the characteristics of a war between independent states, was
in other respects a mere domestic insurrection which was suppressed
by the overthrow of the insurrectionary government. Hence the
method to be pursued in determining the date of the conclusion of
the Civil War might well be different from that to be followed in
the case of a foreign war in which the foreign belligerent still has a
government in existence at the termination of hostilities. At any
rate, as indicated above, in the case of the armistices with the Central
Powers, the President's announcement to Congress is not to be con
sidered as an official proclamation of the legal termination of the
war.
Congress has given evidence by its acts that it did not regard the
signing of the armistices of 1918 and the announcement by the Pres
ident as bringing the war to a legal termination. Thus, after the
armistice of November 11, Congress passed and on November 21,
1918, the President approved the War-time Prohibition Act, which
8The Protector, 12 Wall. 7oo; 14 Stat. at L., 811, 814.
8 14 Stat. at L., 422.
10 U. S. v. Anderson, 9 Wall. 56, 7o; McElrath v. U. S., 1o2 U. S. 438;
Lamar v. Browne, 92 U. S. 187. In the Anderson case, the court said :
"As Congress, in its legislation for the army has determined that the Re
bellion closed on the 2oth day o August, 1866, there is no reason why its
declaration on this subject should not be received as settling the question
wherever private rights are affected by it."
822
MICHIGAN LAW REVIEW
made illegal the sale of distilled spirits for beverage purposes "after
June 3o, 1919, until the conclusion of the present war and thereaf
ter until the termination of demobilization, the date of which shall
be determined and proclaimed by the President."11 The validity of
this act was attacked in the Supreme Court of the United States on
the ground, among others, that demobilization had been effected,
that the war had been concluded, and that thereby the war emer
gency upon which the operation of the act had been predicated was
removed. The court, however, denied the contention and upheld
the validity and continued operation of the act of Congress in spite
of the cessation of hostilities. "In the absence," said the court, "of
specific provisions to the contrary the period of war has been held
to extend to the ratification of the Treaty of Peace or the proclama
tion of peace. * * * 'Conclusion of the war' clearly did not mean
cessation of hostilities ; because the act was approved ten days after
hostilities had ceased upon the signing of the armistice. Nor may
we assume that Congress intended by that phrase to designate the
date when the Treaty of Peace should be signed at Versailles or
elsewhere by German and American representatives, since by the
Constitution a treaty is only a proposal until approved by the Sen
ate." The court also held that the President's statement that "the
war thus comes to an end" was meant in a popular sense and was
not an official proclamation of the termination of the war.12
In addition to the War-time Prohibition Act, many other acts of
Congress passed during the World War provided that they should
remain in force until the termination of the war or until a varying
length of time thereafter. Thus, in the Trading with the Enemy
Act of 19 1 7, it is provided that "the words 'end of the war' as used
herein shall be deemed to mean the date of proclamation of exchange
of ratifications of the treaty of peace, unless the President shall, by
proclamation, declare a prior date, in which case the date so pro
claimed shall be deemed to be the 'end of the war' within the mean
ing of this act."13 This and corresponding provisions in other war
time acts of Congress indicate that it was the expectation of that
body that the war would end normally with a treaty of peace, but
the provision just quoted seems to indicate that Congress also
u 4o Stat. at L., 1o45, 1o46.
11 Hamilton v. Kentucky Distilleries and Warehouse Co., 251 U. S. 146.
"4o Stat. at L., 412.
824
MICHIGAN LAW REVIEW
treaty."15 Again, Senator Lodge, chairman of the Foreign Rela

tions Committee, said on the floor of Congress : "Peace can be made
only by the President and Senate."19 These statements, however,
were obiter and cannot be accepted as conclusive of the matter. It
does not follow that, because all the previous foreign wars in which
the United States has been engaged have been ended by treaty, that
is the only way in which such a war of the United States may be
ended.
There are three ways generally recognized in international law
whereby war may be terminated. Coleman Phillipson, at the begin
ning of his work on the subject, states them as follows: "(1) by a
mere cessation of hostilities on both sides, without any definite un
derstanding supervening; (2) by the conquest and subjugation of
one of the contending parties by the other, so that the former is
reduced to impotence and submission; (3) by a mutual arrange
ment embodied in a treaty of peace, whether the honors of war be
equal or unequal."17
With reference to the power of the United States to terminate
war in these three ways, it has sometimes been questioned whether
the United States is empowered to terminate war by the conquest
and subjugation of the enemy. This doubt is based upon a state
ment by Chief Justice Taney in the case of Fleming v. Page in which
he said : "The genius and character of our institutions are peace
ful, and the power to declare war was not conferred upon Congress
for the purposes of aggression or aggrandizement * * * A war,
therefore, declared by Congress, can never be presumed to be waged
for the purpose of conquest or the acquisition of territory ; nor does
the law declaring the war imply an authority to the President to en
large the limits of the United States by subjugating the enemy's
country."18 In the same opinion, however, the Chief Justice admits
that, by the laws and usages of nations, conquest is a valid title., and
it has been recognized by the Supreme Court that the United States
has full powers in international relations that other sovereign and
independent nations have.10 Certainly, the courts would not inter"3 Dall. 236.
"Congress1onal Record, April 21, 1914, Vol. 51, p. 6965.
" Term1nat1on of War and Treat1es of Peace, p. 3.
"o How. 6o3, 614.
" Fong Yue Ting v. U. S., 149 U. S. 698.
8i6
MICHIGAN LAW REVIEW
ity to make war and another peace," thus indicating his belief that
the power to make treaties, which at that stage in the proceedings
was vested in the Senate alone, included the power to make peace.22
This view was also held by Mr. Ellsworth, who declared that "there
is a material difference between the cases of making war and mak
ing peace. It should be more easy to get out of war than into it.
War also is a simple and overt declaration, peace attended with in
tricate and secret negotiations." Mr. Mason also was for "clogging
rather than facilitating war ; but for facilitating peace." When,
therefore, it was moved to add "and peace" after "war" so as to
give Congress the power to declare war and peace, it was unani
mously voted down.23
The above proceedings of the Convention, together with those
which took place in connection with the consideration of the treatymaking power, indicate that the convention assumed that there was
no such similarity in the methods to be pursued in declaring war
and in making peace as that they should necessarily be vested in the
same branch of government. While the Convention assumed that
the power to make treaties included the power to make peace, it
did not exclusively vest the latter power by an express grant in any
branch of the government, nor did it expressly deny to Congress
such power. It may be that the Convention felt that if Congress
were given the power to make peace, then such grant might be con
strued as exclusive, and thus peace could not be made by the treatymaking power and vice versa. There is nothing, however, to indi
cate that the Convention considered at all the case where a war re
sults in the subjugation of the enemy and the overthrow of his gov
ernment so that no functionaries exist with which a treaty can be
made or the case where hostilities have long since ceased and the
treaty-making power is impotent to conclude peace on account of
an irreconcilable difference of opinion between the President and the
Senate over the terms of the treaty. Had these cases been consid
ered, it is not clear that the Convention would not have vested the
power to declare peace under such circumstances in some body other
than the treaty-making authority.
The consideration of the second of the two cases mentioned above
has recently become of practical importance on account of the fail" Journal of the Const1tut1onal Convent1on, [Hunt. Ed..] II, 188.
" Ibid., p. 189.
827
ure of the President and the Senate for a long time to agree upon
the terms of the treaty of peace with Germany. In view of the
deadlock between the component parts of the treaty-making author
ity, Congress essayed to take the initiative in restoring peace by
passing a joint resolution for that purpose. The joint resolution,
which was passed by Congress and vetoed by the President in May,
192o, reads in part as follows: "That the joint resolution of Con
gress passed April 6, 1917, declaring a state of war to exist between
the Imperial German Government and the Government and people
of the United States, and making provisions to prosecute the same,
be, and the same is hereby, repealed, and said state of war is hereby
declared at an end."2*
The question of the power of Congress to declare peace after a
foreign war, not having before arisen in a practical form, has been
comparatively little considered. Some expressions of opinion, how
ever, have been made on the point and apparently contradictory
statements can be found. Hare, in his work on the Constitution,
says: "It is the right of the President, and not of Congress, to
determine whether the terms (of peace) are advantageous, and if
he refuses to make peace, the war must go on."25 Similarly, in the
report of the Judiciary Committee of the forty-ninth Congress on
the treaty power, made by John Randolph Tucker, it is stated that
"Congress cannot create the status of peace by repealing its declara
tion of war, because the former requires the concurrence of two
wills, the latter but the action of one."28 In his work on the Con
stitution, however. Tucker says : "Is there no end to the war ex
cept at the will of the President and Senate? No authority can be
cited on the question, but the writer thinks a repeal of a law requir
ing war would be effectual to bring about the status of peace in
place of war."27 Judge Baldwin appears to be of the same opinion.
"Peace," he says, "could no doubt also be restored by an act of
Congress. As a declaration of war takes the shape with us of a
statute, it would seem that it can be repealed by a statute."28 A sim* Congress1onal Record, May 15, 192o, Vol. 59, p. 768o.
* J. I. C. Hare, Amer1can Const1tut1onal Law, Vol. I, p. 171-2.
"Quoted by H. St. G. Tucker, "L1m1tat1ons on the Treaty-Mak1ng
Power." p. 357.
"J. R. Tucker, "The Const1tut1on of the Un1ted States," Vol. II,
p. 718.
" S. E. Baldwin in Am. Jour, of Int. Law, Vol. 12, pp. 13-14.
828
MICHIGAN LAW REVIEW
ilar conclusion is reached by Whiting, who says: "As it is in the

power of the Legislative Department to declare war, and to provide
or withhold the means of carrying it on, Congress also may, after
hostilities shall have ceased, declare or recognize peace."20
The different statements quoted above appear to be somewhat
contradictory, but they are capable of being, at least to some ex
tent, reconciled. Hare and Tucker in the report cited are evidently
speaking of a negotiated peace, which Congress confessedly cannot
make since it has no means of carrying on pourparlers directly with a
foreign government. In the exercise of its power to regulate foreign
commerce, however, or in the exercise of some other granted power,
Congress can pass a law embodying proposed terms of peace and can
make the operation of such law contingent upon the consent of the
enemy government being secured to such terms, but the communi
cation of such terms to the enemy and the notification by the enemy
of their acceptance must be transmitted through the President and
such offer and acceptance would constitute an international agree
ment if not a treaty. Baldwin and Tucker in their treatise on the
Constitution do not specify the sort of peace to which they are re
ferring, and their statements, in the unqualified form in which they
appear, cannot be fully accepted as invariably true. The determin
ation of the question is dependent on collateral facts and circum
stances, which differ in different cases. Whiting's statement, though
general in form, doubtless refers primarily to the case of a civil
war. Moreover, he does not assert the power of Congress to create
a status of peace, but merely to declare or recognize its existence
after hostilities shall have ceased.
By the reciprocal intermission of hostilities if long continued, the
concurring will to peace of the erstwhile enemy may be indicated
without formal notification, especially if evidenced by some positive
action that there is no intention of renewing them. It would hardly
be maintained that Congress could end a foreign war by declaring
peace in the midst of a campaign while the war is being actively
waged on both sides. Of course, under the Constitution, Congress
cannot appropriate funds for the support of the army for a longer
period than two years, and Congress might withhold or limit appro
priations for this purpose whether hostilities are in progress or not,
and thus tie the hands of the President in prosecuting the war and
" W. Whiting, "War Powers Under the Constitution," [43rd Ed.], p. 312.
830
MICHIGAN LAW REVIEW
power to recognize by declaration a state or condition in which war

has in fact ceased, due to the long cessation of hostilities or to the
complete subjugation of the enemy. Even though the international
force of such a Congressional declaration might be denied, it would
still have domestic force with reference to the rights and duties of
our citizens. Such a Congressional determination, as we have seen,
has been recognized by the Supreme Court as having weight in a
domestic sense in the case of our Civil War.30 If the Confederacy
had been successful, the Civil War would doubtless have been term
inated by a treaty of peace. As it was, the method of its termina
tion differed but little from that which would be followed in the
case of a foreign war in which the United States should completely
subjugate the enemy and overthrow his government.
The ground upon which the power of Congress to declare peace
is usually based is its power to repeal any act or resolution which
it had the power to pass. Thus, it has been said that "Congress has
the right, simply by virtue of its power to repeal its previous enact
ments, to declare hostilities with Germany to be at an end, and its
declaration to this effect, once duly enacted, will be binding upon
the Courts and the Executive alike."31 It does not necessarily fol
low, however, that from the mere fact that Congress by act or joint
resolution can create a status of war, it can restore peace by a simple
repeal of its former act. This seems to have been tacitly admitted
by the framers of the Congressional peace resolution of 192o, which
provided not only for the repeal of the previous declaration of war
but also expressly declared the state of war thereby created to be
at an end. They thus assumed to exercise the power, not only to
recognize the existence of peace by repealing the declaration of
war, but also to create a status of peace by -Congressional resolution.
Congress can doubtless repeal its declaration of war, but the ques
tion is whether such repeal operates to restore peace. In the Hicks
case, cited above, with reference to the contention that since Con
gress alone can begin war, consequently it alone can terminate it,
the court said : "But that does not follow because the Constitution,
while in express terms giving Congress the sole power of declaring
war, in no way so expresses itself as to give that body any authority
"U. S. v. Anderson, 9 Wall. 71.
"E. S. Corwin, "The Power of Congress to Declare Peace," M1ch1gan
Law Rev1ew, XVIII, 674.
MICHIGAN LAW REVIEW

peaceable possession of the same, such island may, at the discretion
of the President, be considered as appertaining to the United
States.15 The question of the validity of this act arising in the Su
preme Court, that tribunal found ample warrant for it in the prin
ciple that, by international law, territory may be acquired by dis
covery or occupation, as well as by cession or conquest, and when
citizens of a nation take possession of unoccupied territory, the na
tion to which such citizens belong may exercise such jurisdiction as
it sees fit over the territory so acquired.30
In the case of acquisition of territory, the power of Congress
to do so by statute or joint resolution is recognized as proper where
there is no foreign government with which a treaty can appro
priately be made. The same distinction would be followed in the
case of the alienation of territory. If alienated to a foreign power,
it would seem that the treaty method would have to be adopted, but
if the alienation take place in the form of a grant of independence
to a particular portion of our territory, the appropriate method
would be by statute or joint resolution.37 Similarly, in the case of
making peace, it would seem that where the subjugation of the ene
my by the United States and the overthrow of his government oc
curs, since there is then no government with which to make a treaty,
it becomes by analogy the function of Congress by act or joint reso
lution to declare peace. Also, in the case of the long cessation of
hostilities, since this is recognized by international law as a method
of ending war, if there is no intention of renewing such hostilities,
the evidence of such lack of intention might, if predicated on suffi
cient evidence of a similar lack of intention on the part of the for
mer enemy, be given by Congressional act or joint resolution.38 It
has been objected that, if Congress can declare peace, it can also
pass a law to bring the army home and thus interfere in the direc" ll Stat. at L., 119.
"Jones v. United States, 137 U. S. 2o2.
" W. W. W1lloughby, The Const1tut1onal Law of the Un1ted States,
Vol. I, p. 513.
" Congress could obviously not take such action by concurrent resolu
tion, since this would be an attempt to exclude the President from an act
of a legislative character. The joint resolution, however, could be passed
over the President's veto, but the President could still prevent the full re
turn of normal peace conditions by refusing to resume diplomatic relations.
833
tion of the army in the midst of a campaign.39 This would not nec
essarily follow, but even if it did, the difficulty would be largely
avoided by confining the power of Congress to declare peace to the
two cases mentioned. Where, however, the government of the en
emy has not been overthrown nor have hostilities ceased for so
long a time as to indicate that there is no intention of" renewing
them, the only appropriate method of ending war is by the exercise
of the treaty power. If the treaty method is followed in terminat
ing the war, the exact date of its termination, in so far as its domes
tic effect is concerned, may still be determined by the President,
since the treaty of peace is put into effect in a domestic sense by
proclamation of the President, and the date of the termination of
the war as fixed in such proclamation need not necessarily corre
spond with the actual date of the exchange of ratifications of the
definitive treaty of peace.
In the two cases mentioned,overthrow of the enemy's govern
ment, and long cessation of hostilitiesif Congress fails to act, can
the President bring the war to an end by proclamation ? In August,
1919, Senator Fall of New Mexico propounded the following ques
tion to President Wilson: "In your judgment, have you not the
power and authority, by a proclamation, to declare in appropriate
words that peace exists and thus restore the status of peace between
the government and people of this country and those with whom we
declared war?" The President's reply was: "I feel constrained
to say * * * not only that in my judgment I have not the power by
proclamation to declare that peace exists, but that I could in no cir
cumstances consent to take such a course prior to the ratification of
a formal treaty of peace."40 In view of the fact that neither of the
two conditions mentioned in which Congress can declare peace then
existed, as well as of the fact that the treaty of peace then pending
before the Senate had been neither ratified nor rejected by that body,
there seems to be no reason to question the correctness of the Pres
ident's answer. But if either of these two conditions existed, it
would seem that, by analogy with the method of ending the Civil
War, there is some ground to suppose that the President would
have the power in question although the question is involved in
" Speech of Mr. Connally in House of Representatives, Congress1onal
Record, April 8, 192o, vol. 59, p. 5773.
40 Congress1onal Record, Aug. 22, 1919, pp. 4434, 4435.
834
MICHIGAN LAW REVIEW
some doubt. In one case, as we have seen, the Supreme Court

seemed to recognize the dates of the termination of the Civil War
as depending on the proclamations of the President, without consid
ering the concurrent action of Congress.41 The dates chosen by the
President in his proclamation, however, were sanctioned by a subse
quent act of Congress, and the Supreme Court in other cases seems
to consider the action of Congress as of substantial if not controlling
weight in determining the end of the Civil War.42 The situation
with reference to the power in question seems analogous to that
with reference to the power to permit limited intercourse with the
enemy in time of war. In each case, it would seem that the Pres
ident alone may exercise the power, though probably not if against
the expressed will of Congress ; but, whether so or not, he may exer
cise it with the concurrent authority of Congress.43 In the absence
of any conflicting action on the part of Congress, the courts would
doubtless consider themselves bound by the President's proclama
tion in determining private rights, as, in the case of the Protector,
the Supreme Court considered itself so bound, "in the absence of
more certain criteria, of equally general application."44
John M. Mathews.
University of Illinois.
" The Protector, 12 Wall. 7oo.
"U. S. v. Anderson, 9 Wall. 71.
"Hamilton v. Dillin, 21 Wall. 73. In this connection it may be pointed
out that certain war-time acts of Congress indicate that, in the opinion of
that body, the President alone by proclamation could at least recognize the
termination of war for the purpose of indicating the period during which
such legislation should operate. See, e. g., 4o Stat. at L., 412.
44 12 Wall. 7oo.
GENERAL REFERENCES.
Moore, J. B. D1gest of Internat1onal Law, VII, 335-8.
Corw1n, E. S. The Power of Congress to Declare Peace, M1ch. Law
Rev., XVIII, 669-675.
U. S. House of Reps., Rept. No. 8o1, pts. 1 and 2, 66th Cong., 2nd sess.
Ph1ll1pson. C. Term1nat1on of War and Treat1es of Peace.
Amer1can Journal of Int. Law, July, 192o, pp. 384-7 ; 419-2o.
THE LEAGUE OF NATIONS AND THE LAWS OF WAR.

Introduct1on.Everyone would agree that the renovation of interna
tional law presents a problem of commanding importance. Diversity of
opinion is manifested, however, as soon as attention is directed to the details
of the renovating process. Where to begin, what to emphasize, and how to
go about it are questions which provoke a medley of discordant answers.
Out of this medley a few paramount issues are beginning to emerge. One,
such issue concerns the so-called law of war. What shall be done about it?
The World War revealed its lack of sanction, its confusion with self-interest,
its chaotic uncertainty. Can it really be elevated to the dignity of law?
There are excellent jurists who believe that it can and that the result will
be worth the effort. Others are skeptical. The following paper is without
doubt one of the most illuminating and significant discussions of the subject
which has appeared up to the present date. It was first published less than
a year ago in the British Year Book of International Law. It has attracted
a great deal of attention in Great Britain, and some attention, although not
so much as it deserves, in this country. It is reprinted in this issue of The
M1ch1gan Law Rev1ew, with the generous permission of the Editors of the
Year Book, and also of the publishers, Henry Froude and Hodder & Stoughton, in the hope that a real service may be rendered by affording it wider
publicity among those whose opinions will weigh heavily in influencing the
decisions to be made.The Ed1tors.
THE second of President Wilson's famous Fourteen Points stip
ulated for the "absolute freedom of navigation upon the seas
outside territorial waters, alike in peace and war, except as the seas
might be closed in whole or in part by international action for the
enforcement of international covenants."
On this point the Allied Powers in agreeing to the Fourteen
Points as the basis of the terms of Armistice made special and defi
nite reservations. Perhaps for this reason the freedom of the seas
never became an issue at the Peace Conference. But at one time it
nearly did so; and the question is one which is still sometimes dis
cussed, and which will certainly be raised again in the near future.
It is worth while, therefore, to consider more carefully exactly
what this second point as defined by President Wilson really meant.
First, it may be pointed out that the absolute freedom of the seas
in time of peace is agreed to by every one, and has been effectively
acted upon for a century at least. Second, "the closing of the seas
for the enforcement of international covenants by a League of Na
tions" is similarly agreed to, and was embodied by the Peace Con
8j6
MICHIGAN LAW REVIEW
ference in Article 16 of the treaty. The establishment of the supple

mentary international law which is required for this purpose, if any
is required, is in principle at least a simple matter. Therefore, the
controversial matter on which President Wilson by his second point
wished to establish legally denned rules is narrowed down to the
law of "private" war at sea: the meaning of his point is merely this,
that he wished to set up a code of rules for the conduct of wars beiween individual states undertaken without the sanction of the
League. In other words, if the second point had been acted upon
it would have been necessary for the Peace Conference to rewrite
a large chapter of the laws of war, in exactly the same manner as
had been done by the Hague Conference in 19o7, and as the Confer
ence of London attempted to do two years later.
A similar but more general proposal, emanating from a weighty
source in this country, deserves attention. In his book written in
1918, Lord Phillimore proposed that the amendment of the laws of
war and the provision of some means for their enforcement should
be part of the work of the Peace Conference, and that when these
new rules were completed they should be inserted into the final
treaty. He made this proposal, to quote his own words, "for two
reasons ; first, to make war when it does occur less intolerable than
the present war has been ; secondly, to prevent war by taking away
from some nations the temptation to rely on their superior capacity
of committing atrocities as an element of success in war." Lord
Phillimore's proposal had no more success than President Wilson's
second point as an issue at the Peace Conference; but the idea on
which both were based, that it was essential for the future that the
laws of war should be rewritten by an international authority of
high standing, has not yet been abandoned. The proposal now
takes the form that the League of Nations should take up the ques
tion and should continue the work of the Hague Conferences, by
devoting its attention to the codification of rules for the conduct of
military operations. The latest exponent of this idea is Mr. Wins
ton Churchill, who recently said in the House of Commons that the
use of poison gas in future warfare is a question which should be
regulated by the League.
In view of the history of the Hague Conferences, and of the high
authority behind the proposals which have been quoted, it is worth
while to examine carefully the motive ideas of Lord Phillimore, who
838
MICHIGAN LAW REVIEW
dren working in a munitions factory are a legitimate object for

bombardment, and so are the encampments of Women's Auxiliary
Forces. Similarly, the increase in the number of aircraft and in the
size of bombs already developed makes it certain that in the next
big war the destruction of whole towns by aerial bombardment, as
complete as their destruction now is by artillery, will be allowed by
any rules of war that are likely to gain acceptance. Such destruc
tion will make the life of the civilian population of a belligerent
state very much what the life of the soldier in the trenches has been
in the last five years. Moreover, without exception the most effec
tive weapon in the late war was the starvation by blockade of the
whole civilian population of enemy countries. It is certain that if
wars between individual states continue, the belligerents will not
give up this weapon. It is therefore a platitude accepted by every
military thinker that no rules can prevent any future war from dam
aging civilian populations infinitely more than they were damaged
during the late war.
There is a further vital difficulty connected with the protection of
neutrals in any future war between individual states. Modern war
being an effort by the whole of society, the whole activity of society,
including all trade with neutral states, contributes to military suc
cess. Belligerents have the strongest interest to stop the whole of
such trade by their enemy. No law defining neutral rights could be
devised that would not be broken whenever a belligerent felt strong
enough to break it. It is for this reason and owing to the interna
tional interdependence of interests from which it springs that any
future war will, like the past one, tend to become universal, and it
is for the same reasons that the neutrals have shown such a striking
willingness to accede to the League of Nations.
If, then, the codification of the laws of war can by the nature of
modern warfare do nothing to better the lot of civilians or to render
war generally less intolerable than it has been, and if such codifica
tion will not really help either to prevent the outbreak of war or to
protect the interests of neutral states when it has broken out, the
drawing up of such rules would seem prima facie to be both a thank
less and a barren task. Fortunately, the Peace Conference decided
after slight hesitation that it was not a task that it was worth while
to undertake. The Conference was right in judging that little good
could come of any attempt to establish rules which would require
840
MICHIGAN LAW REVIEW
ference of London in 19o9. The rules which were thus laboriously

evolved were afterwards rejected by the very Governments which
drew them up. At the present time, so far as sea warfare at least
is concerned, there are hardly any accepted principles from which
discussion could even begin. "It has become apparent," Oppenheim
wrote in a private memorandum in 1917, "that international law
concerning the rights of neutrals in sea warfare is entirely unset
tled." The extreme divergence of the views which would be put
forward if the subject were raised is illustrated by the fact that
many people in Great Britain would wish not only not to extend
the rights of neutrals in the sense proposed by President Wilson,
but would on the contrary wish to denounce the Paris declaration
of 1856. The fact of the matter is this, that the interests of a bel
ligerent with sea power are so sharply in conflict with those of neu
trals that probably no settlement could be arrived at which would
be generally accepted.
The first general proposition which is here put forward is that
the Governments of the world who have combined to establish the
League of Nations would make a disastrous mistake if they pro
posed to use the new machinery which they have set up to solve
the old problems connected with the codification of the laws of war.
The task with which the League of Nations should deal is rather
the building up of a new body of international law for time of
peace. There are innumerable problems of international life, in
numerable conflicts and coincidences of national interest for which
an effective body of law is required. It is hardly necessary to men
tion the questions of communication, transit, of colonial policy, of
public health, of labour legislation, and of the settlement of dis
putes for which international law has hitherto failed adequately to
provide, but which cannot any longer be avoided.
The second contention which is now put forward, and which will
be examined further in the second part, is that the failure of inter
national law to provide solutions to the problems of peace has been
at least in part due to the fact that the attention of writers and
statesmen has always been diverted from the law of peace to the
law of war. This preoccupation with the law of war has not only
diverted attention from the difficult, but infinitely more important
problems of peace, it has also rendered comparatively barren efforts
at international "legislation" which might have led to the best re
THE LAWS OF WAR
84 1
suits. There is also at least a case for thinking that it has under
mined the whole moral force of international law in the minds of
people at large. A law, of which the most discussed and the most
conspicuous part, and of which it was often erroneously asserted
that the only "real" part, was the law of war, could not command
much popular respect. Every war produced violations of its rules,
and even more allegations that they had been violated. These viola
tions left the injured party with no sanction but that of reprisals
"of no use unless you are the stronger side," as Lord Phillimore has
said. For these reasons Westlake (Collected Papers, p. 238) holds
that the rules that control hostilities are the worst and weakest
part of international law ; and yet it is by this worst and weakest part
that international law has always been popularly judged and dis
credited.
Of all this, the most unfortunate result is that this diversion of
attention from the law of peace has left that law seriously inade
quate to the subject matter it should control. The League of Na
tions must not delay in taking up the task which this inadequacy
throws upon it. For in the view taken in this paper it is the chief
task of the League to remove this inadequacy, and by the develop
ment of true legal processes, and by the establishment of the author
ity of international covenants and law in time of peace, to work
out a stable system for the world.
II
An attempt will now be made very briefly to sketch the historical

background of the two main contentions put forward in the first
part, namely, that the preoccupation of writers and statesmen with
the laws of war has been a real obstacle to the progress of interna
tional law, and that it is by the development of the law of peace,
rather than by renewing the attempts to codify the law of war, that
a stable international system can be built up by the League of Na
tions.
*
*
*
*
It was the great work of Grotius which first established the pre
dominance of the laws of war in the study and exposition of inter
national law. That Grotius himself should have thought the laws
of war of paramount importance is explained by the motive which
made him devote his labours to "the noblest part of jurisprudence."
842
MICHIGAN LAW REVIEW
That motive he thus explains : "I, holding it to be most certain that

there is among nations a common law of rights which is of force
with regard to war and in war, saw many and grave causes why I
should write a work on that subject. For I saw prevailing through
out the Christain world a licence in making war of which even bar
barous nations would have been ashamed; recourse being had to
arms for slight reason or no reason ; and when arms were once
taken up all reverence for divine and human law was thrown away,
just as if men were thenceforth authorised to commit all crimes
without restraint." (Whewell's Translation, Preliminaries, par. 28.)
Grotius' motive, then, in laying the foundations of the modern
law of nations was to mitigate the horrors of the wars which in his
day ravaged Europe. It was natural, therefore, that the scheme
of his book (Preliminaries, pars. 32-5) should show war as the
basis or the source of almost all his reflections and studies. It was
this characteristic of his book which established among exponents
of jurisprudence the tradition, which has survived to the present
day, that the chief function of international law and the sphere in
which it achieves most indisputably real "positive" existence, are
both to be found in the laws of war.
The reasons why this tradition was established so firmly, and
has endured so long, are the following. In the f1rst place, Grotius
achieved a brilliant success in the object for which he wrote. Not
only did his work have a great literary success, but it was the cause
of an immediate and permanent improvement in the practices of
war. The atrocities of the Thirty Years' War were not reproduced
in the wars of the next two centuries after he wrote; and war being
then conducted by small armies, the misery it inflicted when those
armies regulated their conduct in accordance with his rules of hu
manity, was very greatly reduced. This positive success made the
moral force of the laws of war loom very large in the minds of
jurists, statesmen, and peoples.
Secondly, the enormous personal authority of Grotius himself
caused most of his successors to follow closely the path he had
marked out. His work in itself was so much better and so much
more complete than anything that had preceded it, and than almost
anything that came after it for a very long time, that his authority
remained almost decisive, and even yet is not without weight. And
his indirect influence has been even greater than his direct authority.
THE LAWS OF WAR
843
For he wrote as a scholar and a lawyer, but he achieved the work of

a statesman; and throughout the eighteenth and nineteenth cen
turies the weight of his own words was reinforced by that of in
numerable mediocre writers, not without fame in their own day, who
were content to paraphrase and reproduce what he had created.
Thirdly, there is this important fact to remember: that in the
seventeenth and eighteenth centuries the relations between nations
in time of peace were very much more infrequent and unimportant
than they are today. Their relations through war, whether as bel
ligerents or neutrals, were a very much larger part of the whole of
their intercourse than such relations are in the twentieth century.
It was natural, therefore, that the law of war should present itself
as the most important subject for legal regulation between states
to all who concerned themselves with international relations.
These causes established the Grotian tradition so securely that it
dominated the growth and development of international law through
out the nineteenth century. That it should have done so was con
trary to the essential facts of the nature of international society, and
contrary to the dictates of reason: for all the three causes above
described ceased in the nineteenth century to hold good.
In the first place, in the nineteenth century, war so increased in
scale and in destructiveness, that the contribution made to human
welfare by the laws of war, while still considerable and by no means
to be discounted, was yet negligible compared to what it had been.
The rules of Grotius in his own day enormously reduced the suffer
ing caused by an outbreak of war ; but their efficacy was reduced by
the inventions and development brought by every decade of the last
century, until today no rules can prevent war from being infinitely
more intolerable every time that it occurs.
In the second place, the authority of no one classical writer
should in the nineteenth century have exercised the decisive influ
ence which Grotius, directly or indirectly, exercised on international
law. There was a great body of literature, and a great number of
jurists who studied it; there was a large amount of custom and
usage ; there was material for great progress in the science and prac
tice of international law, had there been a modern Grotius to effect
itsome one with a great statesman's view of international law and
with a great statesman's power of gaining acceptance for new con
ceptions and new obligations. It was against reason, therefore,
8 J*
MICHIGAN LAW REVIEW
that the Grotian tradition should have continued to dominate the

science of international law.
In the third place, the improvement of communications and the
growth of international commerce and exchange so intensified the
intercourse between nations that their war-relations became com
paratively an insignificant part of the whole. This growth of inter
course demanded a corresponding growth in the international law
of peacea growth which, had it been adequate, would have ren
dered the law of war comparatively insignificant. But it was not
adequate ; there was a growth of law indeed, and much of the 1n
creased intercourse was regulated by Convention; but the law of
peace lagged far behind the requirements it should have fulfilled,
and the growth of interests and opinion which it should have re
flected.
This last-mentioned shortcoming was the more remarkable in
that the nineteenth century added to custom and reason as sources
of international law, the method of international "legislation" by
Conferences of States. This began at the Congress of Vienna and
developed fitfully until Hague Conferences devoted themselves ex
clusively to the work of codifying and creating law to govern inter
national relations. This method of legislation latterly became the
most important source of international law ; it was certainly the most
spectacular, and had it produced good results, it might have added
enormously to the legal value and to the moral authority of inter
national law.
It might have been expected that this method of "legislation"
would have produced attempts to deal by general rules with the great
problems that absorbed the energies and attention of the whole
world during the nineteenth century. There was material enough
for law : the extraordinary development of colonisation in uncivil
ised parts of the world, the growing international solidarity of eco
nomic interests, the increasing cost and destructiveness of war, and
the consequent increasing importance of preventing its outbreak,
were all matters that seemed to demand the creation of rules. And
in fact attempts were made to deal with them by Conference Legis
lation. The problems of colonisation produced some declarations
about the slave trade, and much later some discussion of native
rights and some regulation of colonial traffic in arms and liquor.
The problems of commerce produced rules about the common rights
THE LAWS OF WAR
845
of the Society of States over international rivers and inter-oceanic

canalsthough in the development of these rules Conference Leg
islation played a smaller part than might have been expected. The
problem of war produced some rules of doubtful value about re
course to mediation, and some machinery established at the Hague
to secure the peaceful settlement of disputes.
But the principles underlying these rules were never worked out
by the Conferences that enunciated them ; they were left to develop
by the slow growth of customor not to develop, as the case might
be. It was the Grotian tradition that really dominated the use of
Conference Legislation. As against the meagre and spasmodic
treatment just indicated of the great problems of peaceful inter
course, the method of Conference Legislation was used to codify,
confirm and amend drastically and repeatedly the laws of war on
sea and land. The following list of Conference Conventions on the
laws of war may be compared with the sparse "peace" results above
referred to
1856. Declaration of Paris on Maritime Law in time of war.
1864. Declaration of St. Petersburg forbidding the use of certain
arms.
1868. Geneva Convention for the protection of the sick and
wounded.
1868. Geneva Convention:Additional Articles.
19o6. Geneva Convention:Amendment and extension.
1899. "Peace" Conference at the Hague: one Convention dealt
with the peaceful settlement of international disputes ;
two Conventions and three Declarations dealt with the
Law of War.
19o7. Second "Peace" Conference at the Hague: two Conven
tions dealt with the Law of Peace, eleven Conventions
and one Declaration dealt with the Laws of War on
Land and Sea.
19o9. Declaration of London on the Laws of War at Sea.
It is perhaps worth while to inquire why the method of Confer
ence Legislation was applied with so much more persistence and
thoroughness and apparent success to the law of war than to the
infinitely more important problems of the law of peace.
Westlake explains the amelioration of the laws of war by the
operation of two moral forces. "The cause of this rapid career of
846
MICHIGAN LAW REVIEW
improvement," he writes, "must be something more than the re

newed belief in a commonwealth of mankind which has been men
tioned above as marking our time. * * * Along with the renewal
of that belief there has come a remarkable development of the senti
ment of pity, of an enthusiasm of humanity which has caused a
wider and keener sympathy with suffering than has perhaps ever
before been known" (Collected Papers, pp. 278-9).
Now it may be remarked that both these moral forces might have
found their expression in the improvement of the law of peace
quite as logically as in that of the law of war. "A renewed belief
in the commonwealth of mankind" and an "enthusiasm of human
ity" might both have led to legislation for the better treatment of
native races or to international legislation for the improvement of
labour conditions, or to laws for the prevention of war. Indeed, it
is remarkable that they did not. For there were other moral forces
at work in the nineteenth century tending in the same direction.
There was, for example, the wave of philanthropic feeling which
swept England on the subject of the slave trade. And there was a
widespread and persistent desire, springing from the renewed be
lief in the commonwealth of mankind and attested by the repeated
recourse to settlement of international disputes by arbitration and
by the calling of the Hague Conferences, to improve international
law for its own sake, to regulate international relations on the basis
of justice, and to build up a legal system which would replace force
by law as the final arbiter of nations.
But all these forces were swept into the improvement of the laws
of war. When they touched any concrete problem of international
peace relations they led usually to the enunciation of some broad
general principle ; but this principle was not worked out into a com
prehensive and practical system of law. Take, for example, the
treatment of native races. In Annex 15 of the Treaty of Vienna
there was a general declaration against the slave trade, which was
condemned then as now by the conscience of the civilised world,
and during the nineteenth century the same moral forces led to the
abolition of slavery in various parts of the world. Not until the
Berlin and Brussels Acts, however, was the principle of the Vienna
Declaration even discussed internationally again. And then it led
to some international Conventions, the inadequacy of which has
been illustrated by the whole of subsequent African history. This
848
MICHIGAN LAW RSVIEW
est to other states. Had the system of Conference Legislation been

used as it might have been used, it would have so developed the
rudimentary principle of 1856 that third parties would have been
given not only an absolute right, but even a duty, to meditate and
to enforce consideration and delay before any individual state threw
international society into confusion by declaring war. Surely the
prevention of war was as true an international interest as the pre
vention of abuse during war, and surely it was one which called as
urgently for agreed regulation by Conference Legislation. Yet it
is only after the Great War that those principles have been embod
ied in the Covenant of the League of Nations which should have
logically developed from what was recognized and enshrined in a
treaty sixty years ago.
Had international law developed as it is above suggested that it
might have done, it is conceivable that the Great War might have
been averted; it is even conceivable that the League of Nations
might have come about by evolution instead of revolution. The
failure of international law is due to many a powerful cause; no
law can outstrip the moral standards of the mass of those who are
subject to it. But, in part at least, it is due to the failure of the
statesmen and jurists of the last century to use the moral forces of
their day for the development of international law along the lines
of true progress ; and this in turn, it has been argued, is due to their
preoccupation with the laws of war. It is for the statesmen and
jurists of our day to bear this lesson continually in mind, and to
apply it in the use they make of the new international machinery of
the League.
M1ch1gan
Law
Rev1ew
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ASSOCIATE EDITORS
Henry M. Bates
Edson R. Sunderland
E. C. Goddard
Joseph H. Drake
John B. Wa1te
Louls A. Parker, of Iowa
Edwin B. Stason, of Iowa
NOTE AND COMMENT
Publ1c Ut1lity Valuat1ons and Rates.In comparing the reports of

the public utility commissions with the decisions of the courts on questions
of valuation of public utilities, nothing is more striking than thisthat as
time goes on the commissions are growingly impatient of the cost of repro
duction theory, while the courts still insist there is no inflexible method of
fixing value, but continue to prefer largely figures as to supposed reproduc
tion cost. This attitude of the commissions is remarkable in view of the
fact that every finding may be carried to the courts for review and possible
reversal. The Illinois Commission reluctantly obeyed the direct orders of
the Supreme Court to consider cost of reproduction, but refuses to treat
that as the only basis. Re Springfield Consol. Ry. Co., P. U. R. 192o E. 474,
48o. The Interstate Commerce Commission ruled that it was practically
impossible for it to find such value in the appraisal of lands of railroads as
ordered by Congress in 1912. But the Supreme Court said it must do so
because Congress had ordered it. U. S. v. Interstate Com. Com., 252 U. S.
178. This was taken by many as an approval by the Supreme Court of the
850
MICHIGAN LAW REVIEW
Cost of Reproduction as the base of value, but that question was not in
volved.
The North Dakota Commission believes that wherever possible in cases
involving a rate basis original cost data should be considered in finding
present value, but finds the facts as to original cost not usually available.
Fargo v. Union Light Co., P. U. R. 192o A 764. It therefore falls back on
the broad generalizations of Smyth v. Ames, 169 U. S. 466. Those generaliza
tions were doubtless wise in 1898, but in 1921, valuation should be on a much
more definite basis. The Vermont Commission regarded estimated cost of
reproduction new as defective, even if allowance be made for depreciation,
first, because based on abnormally high costs of labor and materials, and sec
ond, because security holders should be entitled to a reasonable return upon
investment. Therefore effort should be made to determine actual cost. Re
Colonial Power & L. Co., P. U. R. 192o A 215. However, original cost alone,
even if known, cannot be taken as a proper basis, says the Commission in
Milne v. Montpelier & Barre L. & P. Co., P. U. R. 192o E 558. This is the
attitude of many courts. It does not seem logical to the Michigan Commis
sion that the customers of a public utility should be required to pay a higher
rate merely to enable a utility, without the expenditure of a single dollar
towards an increase of its capital investment, to profit from a high level of
prices. Holland v.,Maguire, P. U. R. 192o B 149. It might be added that
it is very logical to ask the users to pay the utility a return on capital that is
invested at present high prices in order to furnish proper service, even though
prices later may fall to a far lower level. The Tennessee Commission based
rates upon a fair and adequate return upon the capital which had been in
vested in the property. Where the books did not show this, it was determined
by cost of reproduction at the dates of installation, i. e., by the historical, and
not the present, cost of reproduction. Re Receivers Memphis St. R. Co.,
P. U. R. 192o C 277. Fortunately in this case the books furnished reliable
information as to actual cost in most instances. To the same effect is Re
Roanoke Waterworks Co., (Va.), P. U. R. 192o C 745, quoting the opinion
of Hon. Chas. E. Hughes in the Brooklyn Borough Gas Co. Case, P. U. R.
1918 F 335, an opinion that has been more often approved in recent cases
before the Commissions than the decision of any court. It is quoted in nearly
all the Commission cases herein referred to, e. g., by the Utah Commission
in Re Utah Gas and Coke Co., P. U. R. 192o C 854, holding that there can
not be a disturbing of valuations theretofore fixed every time a change occurs
in unit prices. See also Re Southern Pac. Co., (Nev.), P. U. R. 192o F 725,
775, and Re Douglas Co. L. & W. Co., (Oreg.), P. U. R. 192o E 667, 674.
showing the effect of the cost of reproduction method in placing public
utilities on the plane of private speculative enterprises. Preference for the
original cost method, if a single test is to be applied, is expressed by the
New Hampshire Commission in Concord G. L. Co. referred to in P. U. R.
Mar. 3, 1921, vi.
In Maires v. Flatbush Co., P. U. R. 192o E 93o, the New York Commis
sion, First District, gives a long and careful discussion of bases of rate
NOTE AND COMMENT
851
regulation, especially as affected "in the present juncture of universal up

heaval." It points out that "value" of property as a rate base is not "value"
as applied to private property, and denies the deductions made from the
decisions as to the reproduction cost. That basis was resorted to because
actual expenditures could not be determined, or had not been prudently
made. It was a mere "rule of convenience", and "original cost of property
as a controlling factor in a rate base has been approved" by certain New
York courts. The advantages of the "Actual Cost" method under the uni
form system of accounts are pointed out, and the trend of decisions by regu
latory commissions in favor of giving controlling weight to that method is
dwelt upon, with many citations. The Commission for the Second District
also approves, especially under the New York statute, the capital actually
invested as the basis of return. Re Sea Cliff, etc. Gas Co., P. U. R. 1921
A 211.
In Re York County Water Co., P. U. R. 1921 A 439, the Maine Com
mission claims that a very substantial number of commissions now believe
that "the money actually invested in an honest and prudent manner" is "a
better basis for the ascertainment of fair value" than "an attempt to apply
the reproduction less depreciation theory", which in many instances results
"in ridiculous exaggerations of actual or probable conditions". This idea
was further elaborated and insisted upon by the same Commission in Re
Lewiston Gas L. Co., P. U. R. 1921 A 561, 571. In Rc La Porte Gas & E.
Co., (Ind.), P. U. R. 192o F 586, 594-8, the Commission objected to giving
much weight to cost of reproduction at present abnormal prices, the weight
to vary with the degree of departure from normal cost, the greater the
departure the less the weight. Many of the mental processes in fixing going
value are described as "whimsical adventure in an unblazed forest of specu
lation." In Re La Porte Gas & E. Co., (Ind.), P. U. R. 1921 A 824, 843,
859, the Commission regards with concern, as inconsistent, unsound, un
economic, and inequitable, the New Jersey case of Elizabethtown Gas L. Co.
v. Pub. Utility Comm., 111 Atl. 729, post. See also Rc Central Union Tel.
Co., (Ind.), P. U. R. 1921 B 813, 825. Present cost investment was used as
a base on the facts of the case in Re Houghton County Traction Co.,
(Mich.), P. U. R. 1o2o E 35o, was regarded as worthy of serious considera
tion in Re Chesapeake & Potomac Tel. Co., (Va.), P. U. R. 192o F 49, 88, rec
ognizing the wide disagreement between courts and commissions, and was con
sidered the most equitable basis in Re Chesapeake & Potomac Tel. Co., (W.
Va.), P. U. R. 1921 B 97, 1o8. The Illinois Commission, while compelled
under the decision of the Supreme Court to consider cost of reproduction,
refused to base a value on that without a showing of original cost. The
Supreme Court has taken a similar stand, flatly refusing to take cost of re
production as the sole basis of value. State Pub. Utilities Com. v. Springfield
G. & E. Co., (III.), 125 N. E. 891. An interesting history of the cost of re
production method, at first advocated by the public and repudiated by the
utilities, now insisted upon by the utilities and decried by the public, is found
in Re St. Joseph Ry. L. H. & P. Co., (Mo.), P. U. R. 192o A 5421 In
852
MICHIGAN LAW REVIEW
Whitehead v. Niagara Falls G. & E. Co., P. U. R. 192o C 265, the New York
Commission, Second District, refused to add to the investment actually made
an increase based on advanced costs of present day construction.
It must be admitted, however, that there is very little in recent decisions
of the courts to show any considerable judicial trend in this same direction,
though present conditions often compel the courts to restrict severely the
use of cost of reproduction. In Consolidated Gas Co. v. Newton, 267 Fed.
231, Learned Hand, J., does not hesitate to take the burr in his firm grasp.
He scorns the statement that cost of reproduction and original cost are each
elements to be considered, as meaning nothing unless that the two are to be
averaged, which no one will support. He seems right about this, but he does
not shrink from the full acceptance of cost of reproduction as a rate base,
with a continued, but not quite continuous, reappraisal of plants, and rising
and falling of rates. That present value is hard to prove is no answer. He
is prepared to allow the "fallen dollar", by which "the company gains noth
ing, the customers lose nothing."
In Elizabethtown Gas L. Co. v. Pub. Util. Com., 11 1 Atl. 729, Justice
Swayze, quoting Lincoln Gas & E. Co. v. Lincoln, 25o U. S. 256, plants the
New Jersey court squarely for allowing present values, and considers that
the dollar has depreciated one half, while interest rates have practically
doubled. Does he approve doubling the fair value, and then doubling the
rate on this doubled base value? The decision is cited with approval in St.
Joseph R. L. H. & P. Co. v. Pub. Serv. Com., 268 Fed. 267, which disap
proved the method of valuation adopted by the Commission relying on orig
inal cost when obtainable. But see the severe criticisms by the Indiana Com
mission in Re La Porte Gas & E. Co., P. U. R. 1921 A 824, 250-26o. In
Houston Elec. Co. v. Houston, 265 Fed. 36o, the court disapproved confining
the plaintiff to the cost basis, and the Michigan court in Detroit v. Michigan
R. Co., 177 N. W. 306, approved the cost of reproduction less depreciation
method of appraisal for rate purposes. The actual cost was shown to be
$7,299,148, and estimates of present value were $8,ooo,ooo, $1o,913,191 and
$12,974,937 ! There was a record of over two thousand pages. Valuation
methods with such results at such cost leave something to be desired. In
Kings County L. Co. v. Lewis, 18o N. Y. Suppl. 57o, the New York Supreme
Court, New York County, refused to agree with the contention of the utility
for cost of reproduction, or of the city for actual original cost, as the proper
basis, or to admit that there could be any hard and fast rule. To the same
effect is People v. Pub. Serv. Comm., 186 N. Y. Suppl. 177. But in Winona
v. Wisconsin-Minnesota L. & P. Co., (Fed.), P. U. R. 1921 A 146, the court
flatly holds a rate ordinance must be considered with reference to present
day, and not pre-war values.
The conclusion of this review of recent cases is that the Commissions,
working at first hand with the practical problems of valuation generally lean
more and more decidedly toward fixing valueso-calledof public utilities
on prudent investment, largely, and in not a few cases wholly. The courts,
on the other hand, still wallow in the uncertainties of the rule, which is
NOTE AND COMMENT
853
scarcely a rule at all, of Smyth v. Ames, making value a question of judg

ment. In the cases, judgments continue to vary as widely as ever. The
courts are probably too firmly committed to a consideration of various ele
ments to expect them to adopt the definite rule of fixing base values on pru
dent investment. Whether legislatures will step in here, and whether a legis
lative act making prudent investment the basis would be held to be consti
tutional is for the future to reveal. For a fuller discussion of these methods
of valuation see 15 M1ch. L. Rev. 2o5.
E. C. G.
Due Process of Law 1n Procedure. There are two classes of cases
which may arise under the "due process" provisions of the 5th and 14th
Amendments of the United States Constitution, so far as rules of procedure
are concerned. One embraces cases of new remedial processes which may
be criticized as too radical. The other consists of cases of old processes
which may be criticized as obsolete and out of harmony with prevailing con
ceptions of justice. Due process may thus be said to fill the wide space be
tween those innovations which carry us so far away from established meth
ods as to remove the safeguards which are deemed essential to the protection
of person and property, and those ancient remedies which enlightened modern
opinion condemns as barbarous.
Most of the cases which have come before the courts belong to the first
class, and in dealing with them the problem has been how to determine the
point at which departure from settled usage becomes so great as to under
mine what are considered the fundamental principles of judicial procedure.
Certainly the procedure in England at the time of the emigration cannot be
"fastened upon the American jurisprudence like a straight-jacket only to be
unloosed by constitutional amendment". Twining v. New Jersey, 211 U. S.
78, 1o1.
But the cases falling into the second class are much less numerous. It
has been said that a process is due process of law if it can show the sanction
of settled usage both in England and this country. Hurtado v. California,
11o U. S. 516. It would seem reasonable, however, to assume that the settled
usage might become so remote in point of time and so out of harmony with
contemporary ideas, as to cease to enjoy the quality of due process.
This argument was made in Micdreich v. Lauenstein, 232 U. S. 236,
against the ancient rule that a sheriff's return cannot be falsified in the action
in which it is made, and that a party not served with process, who is thereby
deprived of his day in court, may nevertheless lose his property by judicial
sale on a default judgment based on a false return, without being allowed
to show that he was never in fact served. It appeared, however, that this
rule of the ancient common law was still currently adhered to in a number
of American states, and the Supreme Court of the United States felt itself
unable to say that the rule was inconsistent with the due process clause of
the 14th Amendment.
A more striking case of the same type has just come before the Supreme
Court. In Ownbey v. John Pierpont Morgan, et ok, U. S. Sup. Ct., April
r
'
854
MICHIGAN LAW REVIEW
11, 1921, No. oo, an action was commenced by attachment in Delaware against
a non-resident. The defendant attempted to appear, but was refused the
right to do so unless he put in special bail to the amount of the value of the
property held under the attachment. This was the statutory rule in Dela
ware, and the defendant, who was unable to put in the special bail, attacked
the rule as operating to deprive him of property without due process of law.
It appeared that this harsh rule was derived from the Custom of London
in foreign attachment, and had been brought over to America by the colonists,
and that in Delaware it could show statutory continuity down to the present
time. The court cites a number of cases from other seaboard states where
the Custom of London also obtained a foothold, but an investigation of the
statutory history of the rule in those states seems to indicate that in every
one of them the rule long since succumbed to the progress of enlightened
civilization and passed over the Styx into the shadowy land of legal tradition
where the ghosts of ancient laws wander restlessly forever. Sodom was
thought worthy of being saved if but ten righteous men could be found
there, and it is possible that our constitution should be equally charitable to
ward any medieval custom which could show the endorsement of even a
single modern jurisdiction. But the court took a rather cheerless view of
the purpose of the constitution, saying that, "However desirable it is that
the old forms of procedure be improved with the progress of time, it cannot
rightly be said that the Fourteenth Amendment furnishes a universal and
self-executing remedy. Its function is negative, not affirmative, and it carries
no mandate for particular measures of reform." This sounds like the ex
clusion from the purview of the constitution of practically all cases of out
grown processes, and would probably justify the current use of trial by
battle. But the court may not have intended to take such broad ground
against rising standards of justice. Its decision is probably correct, but its
reasons seem to accord too high a degree of respectability to the lingering
relics of a ruder age.
E. R. S.
Prof1ts from Sale of Cap1tal Assets as Income: Taxable Under
S1xteenth Amendment.The Supreme Court of the United States has taken
another step in clearing up the legal concept of income. In four cases,
decided March 28, 1921, the troublesome problem of whether or not profits
arising from the sale of capital assets shall be considered as income for the
purposes of the Income Tax was settled. - These cases all arose under the
Income Tax act of 1916, as amended in 1917, 39 Stat., ch. 463, p. 756, 4o Stat.,
ch. 63, p. 30o, and were all suits to recover taxes assessed, and paid under
protest. All involved the question of the constitutionality of the assessment
under the 16th Amendment, the contention of the taxpayer in each case being
that the fund taxed was not "income" within the meaning of the Amend
ment. In Merchants' Loan & Trust Co. v. Smietanka, the plaintiff was
trustee under a will of property, the net income of which was to be paid to
the testator's widow for life, and after her death, to the children until each
NOTE AND COMMENT
855
should become twenty-five years of age, when each was to receive his share
of the trust fund. Stock dividends and accretions of selling values, under
the will, were to be considered as principal, and not income, and the trustee
was given full dominion over the estate. Certain stock, worth $561,7o8 on
March 1, 1913, the effective date of the Amendment, was sold in 1917 for
$1,28o,9o6.64, and the difference was taxed as income. The Supreme Court
held that it was taxable, although it was not in a course of dealing with
stocks, but a mere isolated sale. In Eldorado Coal Co. v. Mager, the plain
tiff corporation sold its plant for cash in 191 7, distributing the cash among
the stockholders, the corporation not being dissolved, because of unsettled
liabilities outstanding. Adding to the market value of March 1, 1913, the cost
of additions, and subtracting the depreciation, the appreciation in value after
that date was some $6,ooo, on which assessment was made, and the tax paid.
It was held that this was taxable, as in Merchant's Loan & Trust Co. v.
Smietanka. In Goodrich v. Edwards, the plaintiff bought stock in 1912 for
$5oo, which was worth $695 on March 1, 1913, and sold it in 1916 for $13,931.22. He was taxed on the difference between the value on March 1, 1913,
and the selling price, and the Court sustained the tax. He also exchanged
stock in 1912 for other stock then worth $291,6oo. On March 1, 1913, it had
gone down to $148,ooo and he sold it in 1916 for $269,ooo. He was taxed on
the difference between the value of March 1, 1913, and the selling value, but
the Court held that the Income Tax covered only actual gains, and here was
a loss. In Walsh v. Brewster, the plaintiff, who occasionally bought and sold
stocks to change his investments, bought some stock in 19o9 which fell in
value by March I, 1913. He sold it for what he paid for it, and the Court
held that there having been no actual gain, there was nothing to tax. He
also had bought some stock in 19o2 for $231,3oo, the value of which on March
1, 1913, was $164,48o, and sold it in 1916 for $276,15o. He was taxed on the
difference between the value on March I, 1913, and the selling price. The
lower court held that it was, in any event, a conversion of capital assets,
and not taxable income, but the Supreme Court held that the actual gain to
the seller was income; i. e., the difference, here, between the purchase price
and selling price.
The Court in these cases followed its own dictum in Eisner v. Macomber,
252 U. S. 189, 2o7, where it gave a definition of income, saying "Income may
be defined as a gain derived from capital, from labor, or from both com
bined, provided it be understood to include profit gained through sale or
conversion of capital assets." That profit from the sale of capital assets was
taxable as income was specifically held under the corporation excise tax of
19o9. Hays v. Gauley Mountain Coal Co., 247 U. S. 189. The Court felt
bound by the interpretation of income given in the cases under the excise
tax, although it is arguable that the word "income" might have a broader
meaning under a corporation excise tax than under an income tax calculated
to apply to private individuals as well as to corporations. As Justice Holmes
says in Towne v. Eisner, 245 U. S. 418, "A word is not a crystal, transparent
and unchanged, it is the skin of a living thought and may vary greatly in
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MICHIGAN LAW REVIEW
color and content according to the circumstances and the time in which it
is used." It seems clear that the Court would decide that what was income
for the tax-collector is not income for a life tenant under a trust. See
Jordan v. Jordan, 192 Mass. 337; Thayer v. Burr, 2o1 N. Y. 155; and see
Tax Commissioner v. Putnam, 227 Mass. 522, at page 529.
Cray v. Darlington, 15 Wall. 63, was a case which came up under the
income tax of 1867. The act provided for levying annually a tax on gains,
profits and income for the year derived from any source, and provided that
in estimating the gains and profits, there should be included gains realized
within the year preceding the collection of the tax. The plaintiff exchanged
some notes for United States bonds in 1865, and sold them in 1869, at a profit,
and paid the tax on this profit, under protest. He was allowed to recover
the amount paid, because the increase in value developed over a series of
years, and so, according to the Act, could not be considered as income for
any one year. According to the terms of that Act, it was perhaps, not
necessary to decide that increase of capital assets, converted into cash, was
not income, but the court in that case, nevertheless, took the view that such
conversion could not be considered as income. The lower court, in Walsh
v. Brewster,Brewster v. Walsh, 268 Fed. 2o7took the view that the mean
ing of income in the 16th Amendment was no broader than in the Act of
1867. Similarity in wording would indicate that Congress at least had that
act in mind.
Pollock v. Farmers' Loan and Trust Co., 158 U. S. 6o1, decided that
taxes on income from real or personal property were direct taxes; as being
in reality the same as a tax on the source itself. Other sorts of income, such
as salaries, were considered to be subject only to an excise tax, to which the
rule of uniformity applies. The 16th Amendment did not give Congress
power to lay any new kind of tax, but simply removed the necessity of
apportionment, and considering the source from which income is derived.
Uniformity is still necessary, where applicable. Brushaber v. Union Pacific
Rd. Co., 24o U. S. 1, 17-19. In Towne v. Eisner, 245 U. S. 418, Justice Holmes
gave the opinion of the court, holding that under the 16th Amendment "stock
dividends" were not taxable as income, since the shareholder continued to
have the same interest in the capital assets of the corporation that he had
before. In Eisner v. Macomber, 252, U. S. 189, under an act of Congress
making stock dividends taxable, it was held that they could not be considered
as income, the court saying that Congress cannot by any definition it may
adopt conclude the matter, since it cannot alter the Constitution. The court
said that it was essential to distinguish between what is and what is not
income, as the term is used in the 16th Amendment, and apply the distinction
with regard to substance, and not form. Justice Holmes dissented here,
reiterating that, soundly considered, stock dividends were not income, but
said that the 16th Amendment was broad enough to cover it, so that it could
be made income under the Amendment. Hence, the problem, according to
the court, is simply to ascertain just what the term "income" legally defined
can include.
NOTE AND COMMENT
857
It was decided in Lynch v. Turrish, 247 U. S. 221, that where a corpora

tion sells out to another corporation, and distributes the proceeds among
stockholders, if the value on the effective date of the Amendment, is the
same as the value when liquidated, after the date, there is no taxable income,
even though the stockholders get double the value of their stock. On the
other hand, in Lynch v. Hornby, 247 U. S. 339, where the corporation de
clared a dividend on surplus earnings, all of which had accrued before March
1, 1913, the dividend declared after that date was taxable, even though made
up of capital assets, for the dividends were, to the individual, a tangible re
turn on his stock. And if this dividend were made up partly of stock in an
other corporation, under the same circumstances, it is taxable ; Peabody v.
Eisner, 247 U. S. 347. See Southern Pacific Co. v. Lowe, 247 U. S. 33o, 335,
where it was assumed that the meaning of "income" was the same as in the
corporation tax of 19o9.
Had there been no corporation excise tax, it seems doubtful if the Su
preme Court would have included this liquidated increment of value in capital
assets under income. That it may be desirable to tax it as income, so as to
save it from the necessity of apportionment, is, of course, of no interest
to the court. And there can be no problem of double taxation, if one pays
taxes on dividends, and then again pays taxes on profits from the sale of
the same stock, perhaps increased in value simply because it regularly paid
dividends. The court simply wants to find what is income in the commonly
accepted meaning of that term; yet what is commonly accepted as income is
itself a well-nigh impossible thing to define. Although the court must find
an act constitutional if by any reasonable meaning given to it, it can, yet in
the very nature of the problem, it must differentiate clearly between what
is and what is not income.
The court dealt in a high-handed manner with Gray v. Darlington, in
distinguishing it. The distinction made in Hays v. Gaulcy Mountain Coal
Co. was followed, where it was said that the Act of 1867 did not apply to
such sales of stock unless the whole transaction was made within the year
in which the tax was sought to be collected; but the two Acts are much
alike, save that in the Act of 1916, the tax is levied on income "received" in
the year, while in the Act of 1867, it is on income "derived." Inasmuch as
there can be no income at all until the act of conversion, it would seem that
it is both "derived" and "received" at that time, so the Acts can hardly be
distinguished on that ground. In the Darlington case, the court let in profits
from sales in the course of trade and commerce, although the transactions
did not begin and end during the year, but did not let in a sale from an iso
lated transaction. It would seem that it considered that such profit was not
income, and so the court in the principal cases is virtually overruling Gray
v. Darlington, in calling such profit "income." It hardly seems that the Act
of 1916 is different enough in its wording from the Act of 1867 to warrant
saying that Congress has made that income which was not income under the
former Act, in accordance with the reasoning of Justice Holmes in his dis
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senting opinion in Eisner v. Macomber, supra, so as to drag it in under the

Sixteenth Amendment. It seems, rather, that the Supreme Court has, in a
doubtful situation, redefined income, and has thus made a distinct advance
in the legal interpretation of the term. If the law as it stands works unjustly,
it is up to Congress to change it.
G. D. C.
Negl1gence of Dr1ver Not Imputed to Guest.With the decision of the
Wisconsin court in Reiter v. Grober, et al., (Wis., 1921), 181 N. W. 739,
there fell the last stronghold of the doctrine which imputed the negligence
of the driver of a vehicle to a guest riding with him. The first American
state to adopt the doctrine first enunciated in Thorogood v. Bryan, 8 C. B.
115, was the last to throw it overboard.
To impute the negligence of one person to another the relation between
them must be one invoking the principles of agency, or the parties must be
co-operating in a common or joint enterprise, or the relation between the
parties must have been such that the person to whom the negligence is im
puted must have had the legal right to control the action of the person actu
ally negligent. I Shearman & Redf1eld, Law of Negl1gence, [6th Ed.], Sec.
65a, et seq.
In Thorogood v. Bryan (supra), an English court first held that a pas
senger in a public vehicle, though having no control over the driver, must be
held to be so identified with the vehicle as to be chargeable with any negli
gence on the part of the driver which contributed to an injury inflicted upon
such passenger by the negligence of a third party. This was but an attempted
extended application of the old Roman doctrine of identification, and has been
practically unanimously refused and denied in the United States. Little v.
Hackett, 116 U. S. 366, 29 L. Ed. 652. In England, too, it was early recog
nized that the Thorogodd decision rested "upon reasons inconclusive and un
satisfactory" and the case was over-ruled in The Bernina, 12 Prob. Div. 58,
13 App. Cas. 1.
While the doctrine was thus met with opposition upon all sides when
applied to public conveyances, a remnant of it remained, when the Wisconsin
court in Houfe v. Fulton, 29 Wis. 296, 9 Am. Rep. 568, and in Priedeaux v.
Mineral Point, 43 Wis. 513, 28 Am. Rep. 558, adopted it in the case of pas
sengers riding in private vehicles. This new theory, attacked when first
enunciated and since as "resting upon no sound legal basis either as to
agency or identity", Reiter v. Grober (supra), was repudiated by most courts,
yet followed for a time in Montana and Nebraska. Whiltaker v. Helena,
14 Mont. 124, 35 Pac. 9o4; Omaha, etc., R. Co. v. Talbot, 48 Neb. 627, 67 N.
W. 569. But Montana repudiated the doctrine in 19o8 in Sherris v. Northern
Pac. R. Co., 55 Mont. 189, 175 Pac. 269, and Nebraska dropped even earlier
in Loso v. Lancaster County, 77 Neb. 466, where the court pointed out that
the doctrine of imputed negligence cannot be logically applied unless there is
some privity between driver and guest. Wisconsin stood by the principle
for which it had become sponsor for more than fifty years, following the
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MICHIGAN LAW REVIEW
Thus it has been held in one case which says that the negligence of the
driver is imputed to the guest where both are engaged in a joint enterprise,
in which the transportation is a factor, that to establish a joint adventure
"the passenger must have either express or implied right to direct the move
ment of the vehicle used." Robison v. Oregon-Washington R. & Nav. Co.,
go Ore. 49o, 176 Pac. 594.
The repudiation of the doctrine of imputed negligence, it must be under
stood, does not excuse the passenger or guest from exercising any care.
If he does not exercise such care as a reasonably prudent man would exer
cise under the circumstances he cannot recover for injuries occasioned there
by. Brommer v. Pa. R. Co., 179 Fed. 577, 1o3 C. C. A. 135. For a discussion
of the meaning of "due care" see 19 M1ch. L. Rev. 433. In the principal
Wisconsin case the guest was being sued, and the court finding him guilty
of no active contributory negligence, absolved him from blame, even though
he happened in this case to be a part owner of the machine driven by the
negligent driver. In the earlier Wisconsin cases the court had imputed the
driver's negligence to the guest on the theory of agency; and if such agency
view was really sound, the conclusion would be almost inevitable in the prin
cipal case that the guest was liable. When the agency theory was thus really
put to the test, the court had to upset some of its earlier doctrine. Most
generally cases involving the contributory negligence of the guest are those
in which a guest sues a third person whose negligence, the guest alleges,
caused the injuries sued upon, and the third party interposes the contribu
tory negligence of driver and guest.
A guest has been precluded from recovery where the negligent driver oper
ated the vehicle at excessive speed at the suggestion and direction of the
guest who wanted to arrive at a depot in time to meet a train, Langley v.
Southern Ry. Co., 113 S. C. 45, 1o1 S. E. 286; where the guest continued to
ride with full knowledge of the fact that there were no lights on a car which
was being driven on unfamiliar roads, Rebillard v. Railroad Co., 216 Fed. 5o3;
and where the guest remained in the machine with full knowledge of the
fact that the driver was so intoxicated as to be unable to operate the ma
chine properly. Lynn v. Goodwin, (Cal., 1915), 148 Pac. 927.
All these are really examples of independent negligence on the part of
the guest. The old doctrine of imputed negligence must now be regarded as
thoroughly exploded.
H. A. A.
The Newberry Case.Senator Newberry of Michigan and sixteen others
were convicted in the United States District Court on the charge that they
"unlawfully and feloniously did conspire, combine, confederate, and agree
together to commit the offense [in the Newberry indictment] on his part
of wilfully violating the act of Congress approved June 25, 191o, as amended,
by giving, contributing, expending, and using and by causing to be given,
contributed, expended and used in procuring his nomination and election at
said primary and general elections, a greater sum than the laws of Michigan
862
MICHIGAN LAW REVIEW

templated a campaign requiring the expenditure of money beyond the
statutory limit even though Mr. Newberry, the candidate, had not,
and it was not contemplated that he should have, any part in causing
or procuring such expenditure beyond his mere standing voluntarily
as a candidate and participating in the campaign with knowledge that
moneys contributed and expended by others without his participation
were to be expended. * * *
"A reading of the entire Act makes it plain that Congress did not
intend to limit spontaneous contributions of money by others than a
candidate, nor expenditures of such money except as he should par
ticipate therein. * * * Spontaneous expenditures by others being with
out the scope of the prohibition, neither he nor anybody else can be
held criminally responsible for merely abetting such expenditures.
"It follows that one's entry upon a candidacy for nomination and
election as a Senator with knowledge that such candidacy will come
to naught unless supported by expenditure of money beyond the speci
fied limit, is not within the inhibition of the Act unless it is contem
plated that the candidate shall have a part in procuring the excessive
expenditures beyond the effect of his mere candidacy in evoking spon
taneous contributions and expenditures by his supporters ; and that his
remaining in the field and participating in the ordinary activities fur
nish in a general sense the 'occasion' for the expenditure is not to
be regarded as a 'causing' by the candidate of such expenditure within the meaning of the statute."
The Court's conclusion on the interpretation of the Corrupt Practices '

Act and the propriety of the charge to the jury are of course interesting and
important, but by far the most vital part of the case is that dealing with the
power of Congress to legislate regarding primary elections of candidates for
the National Legislature. In many of the cases involving constitutional ques
tions decided by a divided court the differences are due to varying views as
to economic and social policies and theories. As to these one may agree or
disagree, but it is pretty difficult to say with assurance that either position is wrong. The Newberry case, however, turns on a question which is purely
one of construction of the Constitution, and it is believed that one is war
ranted in saying, with all deference, that the majority conclusion is unsound.
By the Constitution it is provided : "All legislative Power herein granted
shall be vested in a Congress of the United States, which shall consist of a
Senate and House of Representatives" (Art. I, Sec. 1) ; "The Times, Places
and Manner of holding Elections for Senators and Representatives, shall be
prescribed in each State by the Legislature thereof ; but the Congress may at
any time by Law make or alter such Regulations, except as to the Places for
chusing Senators" (Art. I, Sec. 4) ; "The Congress shall have power * * *
to make all Laws which shall be necessary^ and proper for carrying into Ex
ecution the foregoing Powers, and all other Powers vested by this Constitu
tion in the Government of the United States, or in any Department or Offi-
864
MICHIGAN LAW REVIEW
feel almost warranted in saying that it was absurd to contend that the sec
tion was anything other than as above stated. It is the States, not the Fed
eral Government, that get their power from that section.
The inherent reasonableness of the view of the minority is apparent when
it is realized that in truth in a large percentage of the states it is the pri
mary election, not the general election, that determines who the officers
shall be. The decision of the majority means that in those states Congress
is virtually helpless in the control of the selection of its own members. To
be sure seats may be denied, but at best that is an uncertain remedy, and
so far as punishment is concerned there can be noneat least so far as Con
gress is concernedexcept in such denial of a seat.
866
MICHIGAN LAW REVIEW
indifference to the vital issues at stake in August, 1918," and give us confi
dence in their ability successfully to meet "pending and coming issues."
BrokerVendor's Knowledge of H1s Instrumental1ty not Necessary.
The plaintiff, a real estate broker sought to recover certain commissions
from the defendant, claimed to be due the plaintiff for obtaining and furnish
ing a tenant for the defendant. The. trial court refused an instruction to the
effect that if the owner at the time of the sale did not know of the broker's
instrumentality in procuring the purchaser, the broker could not recover.
Held, there was no error. McCready v. Nicholson (Mich., 1921), 182 N. W. 54.
The Michigan Court in the first opportunity it has had to pass on this
question rejects the Minnesota doctrine that "to entitle the broker to a com
mission where there is no exclusive agency, it must appear that the owner
knew, or ought to have known from the circumstances that the broker was
instrumental in inducing the purchaser to enter into the contract," Quist v.
Goodfellow, 99 Minn. 5o9, and follows the great weight of authority that a
broker is entitled to a commission on a sale of real estate if he is the pro
curing cause of the sale, and "it is wholly unimportant whether the vendor
knew that his purchaser was sent by the broker or not. It is sufficient
if that was the fact, and he was not misled by the agent," Adams v. Decker,
34 Ill. App. 17; Lloyd v. Matthews, 51 N. Y. 124. For complete citation of
cases see 8 L. R. A. (N. S.) 153, Note, and 9 Ann. Cas. 431, Note. The test
as laid down by the Michigan Court : "Was the broker the procuring cause of
the sale or lease?" seems sufficient in itself to settle the question. If he was,
it seems immaterial whether the vendor knew of it or not. The broker ren
dered a service and should receive his pay. Of course it is an easy thing for
a real estate agent to conceive that he is the procuring cause of a sale of
real estateespecially of valuable real estatebut at the same time a good
many vendors seem not at all unwilling to accept the services of a real estate
man's advertising, and then having secured a buyer, slip out without much
more than a "Thank You." The Minnesota rule protects the vendor as
against the real estate man by insisting on publicity, and causes the broker
to put in his appearance before the sale, rather than, as has often happened,
some days later. This seems to be a difficulty which should be left to a
jury to be dealt with as a question of fact, viz., to ascertain whether the
broker was the procuring cause of the sale; and not a question to be deter
mined by reference to a standard set up by law. For a discussion as to pro
curing cause see 44 L. R. A. 321, Note.
Const1tut1onal LawImpa1rment of ContractsArb1trat1on Law.
The Arbitration Law (Laws of New York. 192o, Chap. 275), providing for
arbitration when agreed upon in the contract between the parties held con
stitutional. It strengthens rather than impairs the obligation of a contract,
and therefore does not violate Article I, Sec. 1o, ch. 1 of the Federal Con
stitution relating to impairment of contracts. Berkovitz, et al. v. Arbib &
Houlberg, Inc., (N. Y., 1921), 13o N. E. 288.
A statute may not be declared unconstitutional for giving an additional
867
remedy, or enlarging or making more efficient an existing remedy for the

enforcement of a contract. National Surety Co. v. Architectural Decorating
Co., 226 U. S. 276. For other cases to the same effect see 17 L. R. A. (N. S.)
779. In the principal case the remedy was not enlarged, but the statute made
available two remedies when formerly there was but one on the contract.
There was in the contract an agreement to arbitrate, but until the passage
of the law in question, it was unenforceable. The only remedy before the
law was an action for a breach, but after the law there was the additional
remedy upon the agreement to arbitrate. Thus the law provided a remedy
for the enforcement of an agreement to arbitrate which was unenforceable
under the existing law when made. It would seem clear that the mere addi
tion of a second remedy would strengthen or at least not impair the obliga
tions of a contract so as to be unconstitutional. That authority as well as
reason support the principal case, see Gross v. U. S. Mortgage Co., 1o8 U. S477 ; Ewell v. Daggs, 1o8 U. S. 143, and other cases 12 Corpus Jur1s, 1o7o,
note 86. By this law the court is not deprived of jurisdiction, but the time
and manner of its exercise are adapted to the convention of the parties re
stricting the media of proof, and if after the decision of the arbitrator the
parties refuse to accept it, then the court will carry out the enforcement of
the decision according to the contract.
Const1tut1onal LawMonopol1esBaseball Club 1s not Engaged 1n
"Trade" or "Commerce." The Baltimore Club of the disbanded Federal
League brought an action for damages under the Sherman Anti-Trust Act
against the National and American Leagues and the members of the Na
tional Commission. It claimed that because of the reserve clause in the base
ball players' contracts under the National Agreement the Federal League was
unable to secure suitable players which caused its dissolution, and the plain
tiff being without competition ceased to operate. Plaintiff asserted that the
disbandment of the Federal League with the resulting interference with its
interstate "trade" and "commerce" and the consequent injury was due to the
acts of the defendants done in violation of the Sherman Anti-Trust Act.
Held, the business of giving exhibitions of baseball games for profit is not
trade or commerce and the reserve clause in baseball players' contracts was
only indirect and incidental in its effect on the interstate commerce of a club
outside the National Agreement, so that it does not amount to a violation
of the Sherman Anti-Trust Act. National League of Professional Baseball
Clubs, et al. v. Federal Baseball Club of Baltimore, Inc., 269 Fed. 681.
The court, in arriving at this conclusion, held that the act complained of
must affect directly and not merely in an indirect or incidental manner the
interstate commerce, for the Sherman Act to be applicable. Loewe v. Lawlor,
2o8 U. S. 274; Northern Securities Co. v. United States, 193 U. S. 197- It
then found that the reserve clause was intended only to protect the rights
of the clubs operating under the agreement to retain their players, and so
had only an indirect effect upon the plaintiff, and therefore was not prohib
ited by the law. The decision of the case placed upon this ground is cor
868
MICHIGAN LAW REVIEW
rect but the dictum that a baseball club is not engaged in "trade" or "com
merce" seems inconsistent with cases previously decided. In arriving at the
dictum that such a club is not engaged in "trade" or "commerce," the court
relied upon Metropolitan Opera Co. V. Hammerstein, 147 N. Y. Supp. 535;
In re Oriental Society, Bankrupt, 1o4 Fed. 975; American Baseball Club of
Chicago v. Chase, 149 N. Y. Supp. 6. These cases dwell upon the fact that
baseball or theatrical performances are not trade or commerce, but are sport
or amusement. In these cases either the performances were almost always
to be given in the same state or else the court failed to notice any distinction.
The court in the principal case notes that the transmission of books and in
structions by a correspondence school into several states with replies there
to, was interstate commerce. International Text-Book Co. v. Pigg, 217 U. S.
91. See also as within the law Marienelti v. United Booking Offices, 227 Fed.
165, where an actor's brokerage firm made contracts that actors were to per
form at certain specified playhouses, and only at such, within the various
states in a certain section of the country. A correspondence school can con
duct lessons by mail in its home city, or even throughout the State and it is
not engaged in interstate commerce. It might as a mere incident occasionally
send a sample lesson outside the state, and yet not be so engaged, as here
the interstate feature would be only incidental. But when the lessons are
continually sent without the state, and replies received therefrom, and the
interstate practice becomes so important as to be an "essential," not a mere
"incidental" element, then the school is engaged in interstate commerce.
International Text-Book Co. v. Pigg (supra), so holds. The fact of mon
opoly was unquestioned in the principal case, and the court based their dictum
upon the fact that there was no "trade" or "commerce." To continue the
interest and make a large professional ball club a financial success, it is
necessary that there be a league. And to be a league, it is necessary that
half the games be played away from home on the opponents' fields, these
fields of the opposing clubs being located in from two to seven different
states from that of the home of the team, according to the League. There
fore, does it not seem that when a baseball player signs to play not only at
the home grounds, but on the fields of the other league members as well,
in view of the decision last cited, and in spite of what the court found, the
contract has the interstate feature as such an "essential" element as to come
within the Sherman Anti-Trust Act? As was said in Butler Bros. Shoe Co.
v. U. S. Rubber Co., 84 C. C. A. and cited in Text-Book Co. v. Pigg (supra)
when holding contracts themselves which were concerned with interstate bus
iness as interstate commerce, "All interstate commerce is not sales of goods.
Importation into one state from another is the indispensable element, the
test of interstate commerce; and every negotiation, contract, trade and deal
ing between citizens of different states which contemplates and causes such
importation, whether it be of goods, persons or information is a transaction
of interstate commerce." It is only reasonable that the players' contracts
contemplated that they be transported around the different states to the
various cities of the league. The interstate travel of the ball players is so
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and further that the regulation is of a temporary duration only. It may be

added that if the landlord desires the house for his own use he can get it
under the rent legislation, and it is difficult to sympathize with landlords
for the loss of the right to let houses remain empty, rather than to accept
reasonable returns from the property. Widespread objection to the rent
decisions has been made, particularly in the dissenting opinions on the
ground of danger of possible extensions of the decisions. Do they really
mean, however, that shoelaces and chewing-gum are now subject to regula
tion or that even rentals may be regulated in future under any and all con
ditions? The Supreme Court has tried hard to say that it does not, that
there really is some significance to the phrase "business clothed with a pub
lic interest." It is said that the regulation is justified because housing is a
necessary of life, and a shortage exists. Such conditions obviously have not
always existed nor will they always exist. Is the court entirely helpless when
the legislature says that they do exist? Courts declare limitations of policy
in other cases, and clearly can do so here. An outstanding feature of the
recent decisions is the defection of Mr. Justice McKenna who rendered the
dissenting opinions. "If such power exist what is its limit," he asks, "and
what its consequences? * * * The wonder comes to us, what will the country
do with its new freedom?" No better answer can be made than that which
the Justice himself has already given in German Alliance Insur. Co. v. tevAs,
supra. "But it is said that the reasoning of the opinion has the broad reach
of subjecting to regulation every act of human endeavor and the price of
every article of human use. We might without much concern leave our dis
cussion to take care of itself against such misunderstanding or deductions.
* * * Against that conservatism of the mind which puts to question every
new act of regulating legislation and regards the legislation as invalid or
dangerous until it has become familiar, governmentstate and national
has pressed on in the general welfare and our reports are full of cases
where in instance after instance the exercise of regulation was resisted and
yet sustained against attacks asserted to be justified by the Constitution of
the United States. The dread of the moment having passed, no one is now
heard to say that rights were restrained or their constitutional guarantees
impaired." See also 19 M1ch. L. Rev. 74.
Const1tut1onal LawStates and Federal GovernmentCo-Operat1on
1n War-T1me Leg1slat1on.Defendant was convicted for violation of a
Minnesota statute making it unlawful to interfere with, or discourage the
enlistment of men in the military or naval service of the United States or
the state, or to advocate non-participation in the carrying on of the war.
The case came before the Federal Supreme Court through proceedings in
error, after the Supreme Court of Minnesota had affirmed the conviction.
The federal question presented was whether or not the power of Congress
to legislate concerning the same subject-matter was exclusive. Held, stat
utes in aid of the federal legislation, and not in conflict therewith can stand,

and the Minnesota statute falls within the class. Gilbert v. Minnesota, (U. S.
S. Ct., Adv. Opinions, Jan. 15, 1921, p. 146).
The decision is featured by a strong dissent on the part of Mr. Justice
Brandeis chiefly on the ground that Congress has exclusive power to legis
late concerning the Army and Navy of the United States, and to declare
war. He concludes, therefore, that the field is closed to the states even in
the absence of federal legislation, and that here, in any event, the Federal
Espionage Law constituted such an entrance into the field as to preclude
state action. The majority of the court holds that technical considerations
and language cannot govern ; that state and national interests are so inter
woven in carrying on war as to give the former the power to render legis
lative aid. The decision seems sound. The principles governing the exclusiveness of federal power in particular cases have been worked out to some
extent in the fields of commerce and bankruptcy. It was early settled in
both that the grants to the Federal Government were not exclusive in all
cases, in the absence of federal action. Sturges v. Crowninshield, 4 Wheat.
122; Cooky v. Board of Wardens, 12 How. 299. The view sanctioned, was
that the grant without action is exclusive only where uniformity is required.
In the field of bankruptcy there seems to have been considerable doubt at
first as to whether any state legislation remained operative after the passage
of a federal act. 45 L. R. A. 177. The rule now seems settled, however, that
state laws may stand even though the federal act covers the same ground
if they do not conflict therewith, and are in aid of the general policy. Stellwagen v. Clum, 245 U. S. 6o5. A partial entrance into the field under the
power to regulate commerce does not put an end to state legislation where
there is no need for uniformity. Reid v. Colorado, 187 U. S. 137. The prin
ciple which should govern seems clear. Both state and federal governments
have no purpose but to promote welfare, and ordinarily what promotes the
welfare of one does so for the other. Where this ceases to be true, the
line should be drawn, and only there. A statute prohibiting the debasement
of the flag to trade uses, has been sustained on the ground that fostering a
feeling of patriotism toward the nation necessarily promotes the welfare of
the state. Halter v. Nebraska, 2o5 U. S. 34. But where uniformity is abso
lutely essential, state and national welfare in the narrow sense, cease to be
identical, and the former must of course yield. There the absence of any
legislation by Congress may well be made the basis for a presumption that
the paramount legislative policy is against it. Elsewhere, as in the principal
case, the power of the states should be checked only when there is a real
conflict, not a mere occupation of the same field.
Const1tut1onal LawVal1d1ty of Ord1nance to Prevent "Scalp1ng" of
Theatre T1ckets.A San Francisco ordinance makes it unlawful to engage
in the business of re-selling theatre tickets without a license, costing $3oo.oo
a month. Having been arrested for violating this ordinance, Dees sought
his release by a writ of habeas corpus, on the ground that the ordinance was
unconstitutional. Held, the ordinance as a revenue measure is unreasonable
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and oppressive; as an exercise of the police power it is an unwarranted in

terference with the liberty of citizens ; petitioner discharged. Ex parte Dees
(Cal., 192o), 194 Pac. 717.
In the principal case the license tax imposed was $3oo.oo a month, while
the gross income from the petitioner's business was but $6oo.oo a month.
The court rightfully held it oppressive, unreasonable and prohibitory, and,
being such, invalid. Moreover such a license tax for revenue was forbidden
by the Charter of San Francisco. It was properly recognized that the ordi
nance purporting to be a revenue measure was in fact an attempted exercise
of the police power. This was made clear not only by the excessive rate of
the license fee but also by reason of the ordinance making engaging in this
business alone, unlawful, unless with a license. The question really becomes
then, whether this ordinance was a proper exercise of the police power. That
the business of selling theatre tickets at a profit is no more immoral nor
injurious to the public welfare or convenience than is the sale of any article
of merchandise at a profit, is the opinion expressed in Ex parte Quarg, 149
Cal. 81. In every state in which the question has been before the courts,
statutes prohibiting the scalping of theatre tickets have been held unconstitu
tional, Ex parte Quarg, supra; People v. Steele, 231 Ill. 34o; People v. New
man, 18o N. Y. S. 892. Speculation in theatre tickets is considered a lawful
occupation and statutes prohibiting it, to violate the due process clause. On
the ground that the business is proper, neither immoral nor injurious to the
public, it was held in these cases to be an improper exercise of the police
power to prohibit or unreasonably regulate or interfere with such sales. To
do so is declared an unwarranted interference with the liberty of the citizen,
not based upon a reasonable consideration of the public health, morals, safe
ty, or welfare, nor of the cost of police supervision. In re Dees (Cal.), 189
Pac. 1o5o. Statutes forbidding railroad ticket scalping have been held valid in
nearly every state. Burdick v. People, 149 Ill. 6oo; Fry v. State, 63 Ind. 552.
New York alone has refused to recognize the validity of such a statute.
People v. Warden, 157 N. Y. 116. The distinction drawn between statutes
dealing with theatre and railroad tickets, is that the railroad is a business
affected with a public interest and the public welfare requires its regulation
by means of the police power, while a theatre is a private business not so
affecting the welfare of the public as to demand police regulation. People v.
Steele, supra. It is submitted that the theatre is a business clothed with a
public interest, coming within the requirements set out in Munn v. Illinois,
94 U. S. 113, as property used in a manner so as to make it of public conse
quence and affect the community at large. The moving picture theatre is
regulated under the police power by license and censorship, because it is a
fit subject for regulation. The courts must recognize the place of the modern
theatre and class it among those businesses which are affected with a public
interest and are subject to the police regulation.
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with reference to the usage. Whx1ston on Contracts, 66o. The party

seeking to establish the usage must show the other was aware of the usage
or that the usage was so well defined and so generally adopted by those in
the trade, that he ought to have known of it. Rostetter v. Reynolds, 16o Ind.
133 ; Black v. Ashley, 8o Mich. 9o. Whether the usage exists is a matter of
fact for the jury, as also is the question whether the parties have adopted
the usage. Chicago Co. v. Tilton, 87 III. 547 ; Scott v. Brown, 6o N. Y. S.
511. In the principal case the trade usage alleged by P complies with the
requirements of reasonableness and legality and was known to D. For nine
months D conformed to the usage. This was evidence of the usage as well
as of D's knowledge and intention of contracting subject to the usage. The
court and jury properly found that the usage existed, was adopted by the
parties and became a part of their contract.
Contracts"Informat1on" as the Cons1derat1on for a Contract.
Plaintiff told defendant's officials that he had acquired information which
would be of great value if used in the operation of defendant railroad.
Thereupon the officials agreed that if plaintiff would submit his proposition
and if the same was acted upon they would pay plaintiff 5% of the pro
ceeds. Plaintiff submitted his proposition, to-wit : "The selling of adver
tising space in railroad stations, cars, etc." Although the road had been
in operation several decades, this idea had never occurred to the defendant's
officials as a source of revenue. The idea was used and advertising space sold
with profit, but defendant refused to pay plaintiff his commissions. In an
action on the contract, held, the contract was fatally defective for want of
consideration. Masline v. N. Y., N. H. & H. R. Co. (Conn., 1921), 112
Atl. 639.
This is a case of first impression, though the applicable underlying prin
ciples are well settled. The court's decision is based on the theory that
when one offers "information" as consideration for a contract the informa
tion must consist of nothing less than new ideas, not known to the promisor
and not generally known to the world at large. But since selling advertis
ing space for profit is a well known commercial enterprise, the plaintiff had
proferred nothing more substantial than a "bare idea,-' valueless as consid
eration. As authority to substantiate its position the court cited Stein v.
Morris, 12o Va. 39o, and Bristol v. Equitable Life Assurance Society, 5 N. Y.
Supp. 131, but in each of these cases the plaintiff was seeking to protect an
idea as property against its use by one who, having fortuitously learned of
the idea, used it. No question of contract was involved and hence the de
cisions cannot properly be regarded as decisive of the facts of the principal
case. Considerable reliance was also placed upon synonyms given for "in
formation" in Murray's "New English Dictionary," namely "news" and "in
telligence." But synonyms are dangerous and must be used with caution.
A far more accurate definition is the one actually given for the word in the
same source, namely, "Information is that which one is told." Everyday
usage treats the term in this light, and non-technical terms in contracts should
MICHIGAN LAW REVIEW

to put the work in the condition the contract called for. Ashley v. Henahan,
supra. More often it is said that the defendant shall be allowed full com
pensation for all damages suffered. Aetna Iron & Steel Works v. Kossuth
County, 79 la. 4o. In many cases the quantum of allowance would be the
same. But in others, as in the principal case, where the expense of remedy
ing the breach is decidedly out of proportion to the good attained, the rule
of damages becomes vital. To apply the strict rule would be to admit the
doctrine of substantial performance in words but deny it in substance. For
full discussion see 2 W1ll1ston on Contracts, 842, and 24 L. R. A. (N. S.)
327EasementsExt1ngu1shment by Voluntary Destruct1on of Serv1ent
Tenement.In 1852 the owners of adjacent lots constructed thereon a threestory building having a common entrance, stairways, and landings as sole
means of access to the upper stories. 'Petitioner (for registration of land
title), who has derived title to one of the lots, now proposes to remove his
part of the building and rebuild without provision for continuing the exist
ing access to the respondent's part. Held, although respondent has an ease
ment through petitioner's building, gained by prescription-, the easement may
be extinguished by the voluntary destruction of the servient tenement. Union
Nat. Bank of Lowell v. Nesmith, (Mass., 1921), 13o N. E. 251.
It is well settled that destruction of the servient tenement without fault
of the owner extinguishes the easement. Shirley v. Crabb, 138 Ind. 2oo. That
voluntary destruction has the same effect appears rather startling. The ma
jority holding in the instant case is based on dicta in Hubbell v. Warren, 8
Allen 173, and Cotting v. City of Boston, 2o1 Mass 97, and the court's finding
as to the intentions of the parties, viz., that the right should remain only
so long as each party should desire to maintain his part of the building. It
may be doubted seriously if the parties intended any such speculation. Some
reasonable men, at least, would not care to leave the sole means of access
to two-thirds of a building to the pleasure of an. adjoining land owner. In
the principal case, perhaps, no great loss was suffered by the respondent be
cause of the age of the building, but the result would be the same apparently
if the building were newly constructed. If the court had found for the re
spondent in respect to the intended duration of the easement the somewhat
similar case of Adams v. Marshall, 138 Mass. 228, would indicate the likeli
hood of the respondent getting money damages rather than equitable pro
tection of his easement. Seemingly the best explanation of the case lies in
the settled hostility of the Massachusetts courts toward easements in struc
tures. McKenna v. Eaton, 182 Mass. 346; Walker v. Stetson, 162 Mass. 86;
Allen v. Evans, 161 Mass. 485.
EasementsScope ofR1ghts 1n Ice on M1ll-Pond.Defendant had a
right to flowage over the plaintiff's land. Plaintiff had been accustomed to
harvesting the ice forming thereon. The defendant with malice and with
the sole intent of preventing the plaintiff from harvesting the ice opened the
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MICHIGAN LAW REVIEW
of ejectment is likely to become the substitute for the suit in equity for
specific performance of agreements to convey, and that a big step toward
the enforcement of equitable rights in a court of law has been taken. The
cases cited by the court do not sustain its decision. While the result reached
in the principal case may be highly beneficial in securing a more solid legal
status to contract purchasers of land, in view of the fact that such owner
ship has become so wide-spread, yet in the absence of a declaration of the
state's policy by act of legislature the decision cannot but be regarded as
judicial legislation.
Elect1onsStatutes Requ1r1ng Elector to State Age Held Val1d.
Section 49o6 of the General Code of Oh1o requires an applicant for regis
tration as a qualified elector of a municipality to state his or her age in
years and months. The relator made application for registration, stating
that she was over 21 years of age, but refused to state her age in years and
months. Upon the refusal of the registrars to register her she brought this
application for a writ of mandamus to compel them to do so. She contends
that the section of the Code above referred to is unconstitutional, in that
it constitutes a denial or abridgement of the constitutional right of citizens
to vote conferred by Section 1, Article V of the Constitution of Ohio as
modified and controlled by the Nineteenth Amendment to the Constitution
of the United States. Held, that the section in question was constitutional,
and therefore the application for the writ was denied. State ex rel Klein v.
Hillenbrand (Ohio, 192o), 13o N. E. 29.
Due to the Nineteenth Amendment to the Federal Constitution and the
well known reluctance of woman to reveal her exact age the decision in the
instant case is interesting, although the law involved therein is so clear and
well settled that it seems startling that it could have been seriously ques
tioned. It is no doubt true as pointed out in Monroe et al v. Collins, 17 Ohio
St. 665, that statutes which entirely exclude certain persons from voting be
cause of race or color are unconstitutional. But it is equally true that the
Legislature may regulate the exercise of the right to vote and may pass stat
utes requiring proof of the right, consistent with the right itself. Wood v.
Baker, 38 Wis. 71; Edmonds v. Banbury, 28 Iowa 267; Capen v. Foster, 12
Pick (Mass.) 485; Cothren v. Lean, 9 Wis. 279; Southerland v. Norris, 74
Md. 326. The authority of the Legislature to enact registration laws was
sustained and the limits of that power were enunciated by the Ohio court
in Daggett v. Hudson, 43 Ohio St. 548. So long as the statutes do not add
any new qualification to the voter other than those required by the Constitu
tion, the statutes are constitutional. See Pope v. Williams, 93 Md. 59, af
firmed in 193 U. S. 621. In the instant case the statute did not unreasonably
or unnecessarily restrain, impair, or impede the exercise of the right to vote
conferred by Sec. I, Art. V of the Constitution of Ohio, but rather provided
a reasonable, uniform, and impartial method of regulating, facilitating, and
securing the exercise of this right, and of preventing its abuse. It is sub
mitted that if the registrars could not interrogate further than to ask the
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MICHIGAN LAW REVIEW
InsuranceDoes W1ndstorm Pol1cy Cover Loss of Horse Fr1ghtened

Into Fatal Injury by CycloneProx1mate Cause.D. insured P's prop
erty including horses from any loss or damage by windstorm, tornado, or
cyclone. During a violent windstorm P's horse, while in a barn, became
frightened, broke his halter, and was injured fatally. P. brought suit upon
the insurance policy. Held, the death of the horse was the proximate result
of the windstorm and so recovery may be had for the loss. Fidelity Ins. Co.
v. Anderson (Ind., 1921), 13o N. E. 419.
The only question in the case was whether the injury to the horse was
the proximate result of the windstorm, or whether the fright of the horse
was an efficient intervening cause which broke the chain of causation. While
the facts seem to be unique in the law of insurance it would seem that
the case may be fairly compared on principle to the question whether injury
from fright is the proximate result of an act of a wrongdoer when there
is no impact. Sutherland, Damages [4th Ed.] p. 77, et seq.; 34 Harv. L.
Rev. 26o; 17 M1ch. L. Rev. 4o7. Another group of analogous cases is to be
found where the beneficiaries of a life insurance policy excepting death by the
hand of the insured are allowed to recover where the deceased was insane
at the time he took his life. Travelers' Ins. Co. v. Mellick, 65 Fed. 178; Acc.
Ins. Co. v. Crandal, 12o U. S. 527; Eastabrook v. Union Ins. Co., 54 Me. 224.
The theory seems to be that the act of the insured in destroying himself
does not break the chain of causation and the injury is regarded as proxi
mately caused by the mental derangement and not by the act of the injured.
InsuranceStr1k1ng of Truck by Fall1ng of Scoop of Steam Shovel
1n Load1ng as a "Coll1s1on."Autotruck was struck by the falling onto it
from above of the scoop of a steam shovel with which the truck was being
loaded. Held, such striking is a "collision" within a policy insuring the
truck. Universal Service Co. et al. v. American Ins. Co., (Mich., 1921), 181
N. W. 1oo7.
The Century Dictionary defines collision as "The act of striking or dash
ing together of two bodies ; the meeting and mutual striking or clashing of
two or more moving bodies, or of a moving body with a stationary one."
The question of collision in an insurance cause arises only in marine and
automobile insurance. In marine insurance the English courts hold that
collision applies only to the coming together of two navigable vessels, and
does not apply to a case where a vessel runs into some stationary and perma
nent obstruction. See Hough v. Head, 54 L. J. Q. B. 294, and Chandler v.
Blogg, 1 Q. B. 32. In the United States it has been decided that there is no
collision within the meaning of that term where a vessel runs against some
sunken obstruction in the water. See Clive v. Western Assur. Co.. 1o1 Va.
496, and Burnham v. China Mut. Ins. Co., 189 Mass. 1oo. However, a vessel
need not be in motion at the time of collision. See The Moxey, 17 Fed. Cas.
94o, where the injured vessel was moored to the pier and was damaged by
the other vessel pushing her against the wharf ; Wright v. Brown, 4 Ind. 95,
where the injured vessel was moored to the wharf and was sunk by the vio-
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MICHIGAN LAW REVIEW
man, 223 Mass. 62. In the following cases the validity of the marriage was
upheld where one of the parties assumed a false name: Meyer v. Meyer,
7 Ohio Dec. 627; King v. Inltabitants of Burton on Trent, 3 M. & S. 537;
King v. Inhabitants of Billinghurst, 3 M. & S. 25o. In a note to the last case
are a number of decisions to the contrary, but these do not need to be con
sidered, for they rest on the peculiar terms of the Marriage Act of Eng
land. The strict rule has been somewhat relaxed in some jurisdictions either
by statute or by judicial decision. See Davis v. Davis, go N. J. Eq. 158;
Parsons v. Parsons, 68 Vt. 95 ; Gatto v. Gatto, 79 N. H. 177. The New York
courts especially are extremely liberal. See the leading case of Di Lorrenzo
v. Di Lorrenzo, 174 N. Y. 467; See also Robert v. Robert, 87 Misc. Rep. 629,
where there was a false representation as to financial conditions as in the
instant case and yet the court reached a contrary decision. In the instant
case the man the petitioner married was the human being she intended to
marry. The false representations concerned only the respondent's position
or circumstances in life. The fraud was not such as would prevent the party
entering into the marriage relation, or having entered into it, would preclude
the performance of the marital duties. Therefore, the court in the instant
case, in accordance with the strict rule followed in Massachusetts, properly
refused relief. See Day v. Day, 236 Mass. 362; and Trask v. Trask, 114 Me. 6o.
Master and ServantMaster's L1ab1l1ty for W1lful Torts of Serv
ant.Money had been sent to the plaintiff through the defendant telegraph
company. While the latter's messenger was delivering it to the plaintiff at
her home, he made an indecent proposal to her. Held, (two justices dissent
ing), the defendant is liable for the misconduct of its messenger. Buchanan
v. Western Union Telegraph Co., (So. Car., 192o), 1o6 S. E. 159.
Generally a master is liable for the wilful or malicious tort of his servant
only when the act is within the scope of his employment and in furtherance
of the master's business. Illinois Central Railroad v. Ross, 31 Ill. App. 17o.
These limitations on the master's liability are not recognized where he owes
a special duty of protection to the injured party. The duty may be founded
on contract * * * as between carrier and passenger, or innkeeper and guest.
Craker v. C. & N. W. Ry. Co., 36 Wis. 657; Birmingham Railway L. & P.
Co. v. Parker, 161 Ala. 248; Savannah P. & W. Ry. Co. v. Quo, 1o3 Ga. 125;
Clancy v. Barker 71 Neb. 83. The duty may be imposed for reasons of pub
lic policy, as in cases where the master entrusts the control of a dangerous
object or instrumentality to his servant. Railway v. Shields. 47 Ohio St. 387.
On similar considerations of policy, express companies and proprietors of
stores, shops and theatres have been held liable for the wilful torts of their
servants committed against those coming to their places of business as pa
trons, though the servant was not acting within the scope of his employ
ment nor in furtherance of his master's business. See Dickson v. Waldron,
135 Ind. 5o7; Rkhberger v. American Express Co., 73 Miss. 161; Brooks v.
Jennings County etc. Ass'n., 35 Ind. App. 221. Though the "ratio decidendi"
of the principal case is not definitely stated, it rests primarily on grounds of
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MICHIGAN LAW REVIEW
Mun1c1pal Corporat1onsImpl1ed Powers.The plaintiff was run into

and injured by an automobile ambulance owned by the defandant. The city
had statutory power to provide hospitals for contagious diseases, and hos
pitals for inhabitants who by misfortune or poverty might require relief ; but
no express power was conferred to operate ambulances. Held, that the city
was not liable for the accident, as the purchase and operation of the ambu
lance was ultra vires. Ducey v. Town of Webster, (Mass., 1921), 13o N. E.
53The powers of municipalities are special and are restricted to the public
purposes for which they are created. Akron v. McElligott, 166 Iowa 297;
In re Pryor, 55 Kan. 724. A municipal corporation's powers include those
that are necessarily or fairly implied in or incident to the powers expressly
granted. 1 D1llon, Mun1c1pal Corporat1ons [5th Ed.] 449. Erection of
halls for public meetings have been held to be within the implied powers of a
city. Bates v. Bassett, 6o Vt. 53o. Under a power to abate nuisances, a city
may provide an incinerator to consume garbage. Kilvington v. Superior, 83
Wis. 222. Under authority to keep streets in repair, a city can not operate
a quarry outside of the city limits. Donable v. Harrisonburg, 1o4 Va. 533;
see also Schneider v. City of Menasha, 118 Wis. 298. Generally speaking,
municipal authority is to be strictly construed, and all reasonable doubts as
to the existence of the power in a municipal corporation must be resolved
against it. Chicago Union Traction Co. v. Chicago, 199 Ill. 484; Meday v.
Borough of Rutherford, 65 N. J. L. 645; Minturn v. Larue, 23 How. 435.
The ambulance in the principal case was purchased for general use; the gen
eral tone of the court's opinion indicates that had it been purchased to be
used by paupers and contagious cases, its purchase might have been within
the implied powers of the city. If the dominating motive of the purchase had
been to care for the paupers, the incidental use of it for other purposes would
not have made the purchase invalid. In Wheelock v. City of Lowell, 196
Mass. 22o, it was held that the fact that a public building was occasionally
used for other than a public purpose, did not make the building any the less
public. After deciding that the purchase of the ambulance was ultra vires,
the court adopted the rule that a city is not liable for its ultra vires acts. This
rule is undoubtedly supported by the weight of authority but has been greatly
criticized; Jones, Negl1gence of Mun1c1pal Corporat1ons, 173, says that it,
in effect, punishes a third person, who is in no way responsible for the un
authorized act ; this phase of the problem is discussed in Salt Lake City v.
Hollister, 118 U. S. 256.
Negl1genceRes Ipsa Loqu1tur.Plaintiff, upon defendant's invitation
and under guidance of one of defendant's employees, was making a tour of
defendant's plant. While plaintiff was watching another employee label bot
tles of "Bevo," one of the bottles exploded, a piece of the glass striking and
cutting the end of plaintiff's nose. The wound healed quickly, but the shape
and appearance of plaintiff's nose was permanently ruined. She was a nine
teen-year-old girl. Plaintiff's case was based entirely upon the presumption
886
MICHIGAN LAW REVIEW
a physician attending a patient with a contagious or infectious disease to

exercise reasonable care to advise members of the family and others liable
to be exposed of the nature of the disease and the danger of exposure. Davis
v. Rodman (Ark., 1921), 227 S. W. 612.
A legal duty resting on the defendant to use care or skill is an essential
element of actionable negligence. Curtin v. Somerset, 14o Pa. St. 7o. The
leading effort to formulate this duty found in Heaven v. Pender, L. R. 11
Q. B. D. 5o3 (1883), is broad in its language. The court there said: "When
ever one person is by circumstances placed in such a position with regard
to another that everyone of ordinary sense who did think would at once rec
ognize that if he did not use ordinary care and skill in his own conduct with
regard to those circumstances he would cause danger of injury to the per
son or property of the other, a duty arises to use ordinary care and skill to
avoid such danger." Although the courts have often quoted this rule, they
have, in general, held that there are but two classes in which a legal
duty arises : 1st, anyone in the exercise of his own legal rights is
bound to use ordinary care not to injure others (Colchester v. Brooke, 7
Adolphus & Ellis N. S. 377) ; 2nd, anyone undertaking to do something for
another, whether by express contract or otherwise, must act with due care.
Black v. N. Y., N. H., and Hartford Ry. Co., 193 Mass. 448. Although the
principal case is within neither of these two well-established classes it in
volves a probably not unreasonable application of the general rule in hold
ing that a physician owes a legal duty not only to a patient or to one who
has employed him to care for someone else but to all members of the family
and others who are liable to be exposed to the disease. The only precedent
for this decision is the recently decided case of Skillings v. Allen, 143 Minn.
323, where it was held that a physician in telling plaintiff who had employed
him to care for his child sick with scarlet fever that there would be no
danger from contagion in taking the child home from the hospital while
peeling, was guilty of negligence. Although the court talks about the con
tractual duty of the defendant to the parents who had employed him, the
case is decided on the grounds of tort liability.
Publ1c Ut1l1t1esRatesPower to Contract Under Grant of Power
to F1x Rates.Certain Iowa cities passed ordinances conferring on appel
lants franchises to use the streets for twenty-five, (in one case twenty,)
years on condition that they should charge specified maximum rates. Ap
pellant companies sought injunctions to restrain these rates, which for the
purposes of the suits are admitted to be confiscatory. The District Court
held the rates fixed depended on contracts, which the municipalities had
power to make, and decreed enforcement of the ordinance rates. Upon ap
peal, held, that under the Iowa statutes there was no such power to fix con
tract rates. Southern Iouv Electric Co. v. Chariton, U. S. Sup. Ct., April
11, 1921.
These cases carry a step further the development of the law of rate fix
ing considered in 19 M1ch. L. Rev. 547, and other notes there referred to.
888
MICHIGAN LAW REVIEW
Quas1 Contracts Recovery for Work Performed Under M1stake.

Plaintiff was under contract with the postal authorities to transport the mails
between the post office and the defendant company's trains. The relations of
the plaintiff with the defendant were controlled by the postal regulations,
which provide that railroad companies shall place their mail cars at points
accessible to the mail messenger for wagon service, and that if the cars are
not so placed the company must receive mail from and deliver to the mes
senger at a point accessible to his wagon. Defendant placed its mail cars
at such a point that it was necessary to carry the mail across the station plat
form. Plaintiff did not believe it was his duty to do this work, but the
company's agent insisted that he should do it, and the plaintiff complied under
protest. Upon discovering that it was not his duty to do the work he brought
this action to recover for the labor performed. Held, that the plaintiff was
entitled to recover for the work performed. Grossbier v. Chicago, St. P., M.
& O. Ry. Co. (Wis., 1921), 181 N. W. 746.
The court adopts, and incorporates into its opinion, the language of Mr.
Justice Collin, in Miller v. Schloss, 218 N. Y. 4oo, as follows: "A quasi or
constructive contract rests upon the equitable principle that a person shall
not be allowed to enrich himself unjustly at the expense of another. In
truth 1t is not a contract or promise at all. It is an obligation which the law
creates." It seems clear in the principal case, that the company had been en
riched at the plaintiff's expense, and that the doctrine of unjust enrichment
was rightly applied. The fact that the plaintiff might have found out, by
proper inquiry, that it was not his duty to do the work, cannot bar his right
of recovery. Devine v. Edwards, 1o1 Ill. 138; Rutherford v. Mclvor, 21 Ala.
75o. See also Woodward on Quas1 Contracts, page 16. The agent of the
company insisted that the plaintiff was bound to do the work, and the work
having been performed in pursuance of the agent's demand, the company
is bound to recompense him. Accord: McClary v. The Michigan Central R.
R. Co., 1o2 Mich. 312. Contra: Johnson v. Boston & M. R. Co., 69 Vt. 521,
on the ground that the plaintiff was merely an officious volunteer. The case
of Blowers v. Southern Ry., 74 S. C. 221, is a similar case on the facts pre
sented, although in that case the work was not performed at the request of
the company. It was, however, done with the company's knowledge and ac
quiescence, and the court held that the plaintiff was entitled to recover for
the work performed. Columbus, H. V. & T. Ry. Co. v. Gaffney, 65 Ohio
St. 1o4, is hardly distinguishable, on the facts, from the Blowers case, but
there the plaintiff brought his action on the basis of an express contract.
The court held that there was no such contract and refused to allow a
recovery. While these cases are rather unusual on the facts, the principle
involved is one of common application which the courts have recognized
constantly in deciding cases of this general nature. Dame v. Woods, 73
N. H. 222; Highway Com'rs. v. Bloomington, 253 Ill 164; Hamby v. Collier,
136 Ga. 3o9.
89o
MICHIGAN LAW REVIEW
the discretion of the court may defeat the vendee's bill. See authorities col
lected in W1il1ston on Contracts, Vol. II, Sec. 791. In regard to the prin
cipal case, since the South Dakota court has not hitherto committed itself
to a policy of strict construction, this discretionary power might well have
been exercised in favor of the vendee. The sum forfeited was not large, it
is true, but he had acted in good faith, payment had been made in a form
reasonably common in business dealings, and there was no evidence of fluct
uating land value or other undue hardship on the vendor. The case may
well be contrasted with Compton v. Weber, (Ill., 1921), 129 N. E. 764, a re
cent Illinois case, in which a vendor to whom $3,ooo of a $25,ooo purchase
price had been paid, refused to accept a check in payment of the balance,
although that form of payment had been accepted for the prior installment,
and demanded legal tender at so late an hour that he well knew it could not
be procured. The Illinois court, although committed to the doctrine of
strict construction, refused to countenance what it termed "a sharp business
trick" by the vendor, especially since the latter had, by accepting a check for
the prior payment, led the vendee to believe that the same form of payment
would be accepted again. In the Illinois case the sum which would have
been forfeited was greater but on principle it would seem that the principal
case should reach the same result.
Statutory Construct1onU. S. Ma1l Box not a "Post Off1ce," "Branch
Post Off1ce," or "Post Off1ce Stat1on."A copy of a summons, complaint,
affidavits, and order for publication which had been sealed up in an envelope
directed to defendant, a foreign corporation, were deposited in a letter box
maintained by the United States government in an office building. A statute
authorized the order of publication for constructive service to direct a mail
ing at "a post office," "branch post office," or "post office station." Held, de
fendant's motion to vacate and set aside the judgment should be granted be
cause mailing the summons by placing it in a post office box did not comply
with the requirements of the statute. B. Berman, Inf. v. Amer. Fruit Distr.
Co. of Calif., (N. Y., 1921), 186 N. Y. Supp. 376.
By looking at the code as a whole, the court concluded that the Legisla
ture intended to allow the summons to be mailed only in the three sorts of
places named. The term "letter box" was known to the legislators since they
used it in a different connection as pointed out by the code itself in section
797. Consequently it seemed to the court that in the case of serving a sum
mons the legislative intent that it could not be placed in a mail box was very
clearly expressed. A similar method of statutory construction is found in
McArthur v. Moffett, 143 Wis. 564.
Tr1alInstruct1ons as to Damages.The jury returned a verdict of
$1,5oo,the amount sued for,where testimony had been introduced for but
$597-9o- The trial court instructed the jury that they should allow such
damages as the preponderance of the evidence showed the plaintiffs to have
sustained, not to exceed the sum of $1,5oo,the damages named in the com-
892
MICHICAN LAW REVIEW
lations should be distributed with the principal. Thurber v. Thurber, (R. L,

1921), 112 Atl. 2o9.
The distribution of the accumulated surplus necessarily depends upon
whether the estate of the life beneficiary is vested. Rhode Island Hospital
Trust Co. v. Noyes, 26 R. I. 323. As to vesting the case is clearly distin
guishable from cases where there is an absolute gift of income for support
until the principal fund is payable. Hanson v. Graham, 6 Ves. Jr. 239; In re
Hart's Trusts, 3 De G. & J. 195; Booth v. Booth, 4 Ves. Jr. 399; and from
cases where the whole income is expressly given, subject to discretion as to
time and terms of payment. Endicott v. Univ. of Va., 182 Mass. 156. But
see lasigi v. Shaw, 167 Mass 328. The fact that there was no provision made
for disposal of the surplus does not make it a gift of the entire income.
In re Sanderson's Trust, 3 K. & J. 497. But in view of the language used
in the will in the instant case, there is at least some basis for the guardian's
contention that the testatrix intended the whole income to go to the bene
ficiary. As to disposal of unexpended accumulations of income, the gen
eral rule is that "they follow the fate of the principal." Hanson v. Graham,
supra. If the principal fund or whole income has vested, the accumulations
go to the life beneficiary, and on his death to his executor or administrator.
Rhode Island Hospital Trust Co. v. Noyes, supra (see for collection of au
thorities) ; Bayard v. Atkins, 1o Pa. St. 15. But in In re Sanderson's Trust,
supra, where the gift of income was not vested, the court made a distinction
between surplus of income arising from personal estate and that arising out
of real estate, holding that the former went, on death of the life beneficiary,
with the principal fund, and the latter to the testator's heir at law. This dis
tinction does not appear to have been recognized in the instant case. Nor
was it noticed in Demeritt v. Young, 72 N. H. 2o2 (no authorities cited),
where the direction was to pay as much as might be "actually necessary for
comfort and support," the court holding that the unexpended accumulation
of income went to the remainderman. On the rights of the life tenant and
remainderman in dividends, see Perry, Trusts, Sees. 544, 545.
TrustsResult1ng Trust 1n Mortgage L1en on Payment to Redeem
from Foreclosure.The mortgagees had been awarded a judgment of fore
closure and the land had been sold to satisfy the judgment. The mortgagor
being unable to raise sufficient funds to redeem, the defendant furnished
19/28 of the necessary funds. The mortgagor redeemed. In an action by
the mortgagor to quiet title, the defendant cross-complained for an undivid
ed 19/28 interest in the land on the theory of a resulting trust arising from
his contribution to the redemption money. Held, that no resulting trust
arises, the doctrine not being applicable to the case at bar. Cochran v. Coch
ran. (Wash., 1921), 195 Pac. 224.
In so far as the court's decision rested upon the nature of the mortgage
as being merely a lien, it would seem that no valid distinction can be taken
between resulting trusts arising in lien or in title theory states. In Tobin v.
Tobiit, 139 Wis. 4o4, it was held in a lien theory state that where one uses
893
another's money to make a loan and takes the mortgage in his own name, a
resulting trust arises in favor of the one furnishing the money. A similar
result has been reached under the title theory. Tillman v. Murell, 12o Ala.
239. On the other hand, it has been decided that where A's money has been
used to pay off a second payment of a purchase money mortgage, no result
ing trust arises, even in a title theory state, and such a case has been distin
guished by the courts on the ground that a resulting trust must arise at the
time the purchase is made and cannot arise subsequently. Jacksonville Bank
v. Beasley, 159 Ill. 12o. But the distinction seems unsound since the facts of
legal importance are those which exist when the mortgage is discharged
rather than those which led to its creation. 2o Col. L. Rev. 1o3. If the facts
of the principal case are approached from the point of view of subrogation,
the conclusion reached would seem to be correct, since the facts fail to show
an agreement to reconvey or an interest in the payor liable to foreclosure;
Jones on Mortgages, [7th Ed.], No. 874, ct seq. Conceding that the debt is
the principal thing, it has been held that a mere volunteer who pays the debt
of another may require the debtor to ratify or repudiate the payment, in
which case he may sue in his own name or in a court of equity as equitable
assignee ; Crumlish Administrator v. Central Improvement Co., 38 W. Va.
39o. It is submitted that the doctrine of resulting trust should not require
a fee simple to support its creation. If the decision in the principal case can
be justified at all, it must be on the ground that the doctrine of resulting
trust had its origin under conditions which do not exist at the present time,
and therefore should be limited in every possible way. See 2o Harv. L. Rev.
555- At any rate it is clear that if a resulting trust did arise, it should be en
forced only as to 19/28 of the mortgage lien and not as to an undivided in
terest in the land itself since the redemption had not been by the payor's
money.
Workmen's Compensat1onInjury to Watchman Acc1dentally Shot
1s One Ar1s1ng Out of Employment.A night watchman, employed by a
company which furnished subscribers with protection against burglary, was
killed when he was accidentally shot by a police officer then in the pursuit of
burglars, though they had not entered the building which the watchman was
protecting. Held, (two justices dissenting,) that this was an injury "arising
out of employment." Heidemann v. American District Telegraph Co. et al.,
(N. Y., 1921), 13o N. E. 3o2.
In Workmen's Compensation cases there are almost invariably the ques
tions: (1) Did the injury result from an "accident"? (As to this see 19
M1ch. L. Rev. 638). (2) Was it received "in the course of employment"?
(3)Was it one "arising out of employment"? The answer to the second ques
tion really depends on whether the employee was acting within the scope of
his employment. See references infra. As to the third question the pre
vailing view makes the test one of causationwas there any casual connec
tion between the employment and the injury? See McNicol's Case, 215 Mass.
497; Dennis v. A. J. White & Co., [1917] A. C, 479; 12 M1ch. L. Rev. 614,
894
MICHIGAN LAW REVIEW
688; 14 M1ch. L. Rev. 525, 526; 15 M1ch. L. Rev. 92, 6o6; 16 M1ch. L. Rev.
179, 462; 17 M1ch. L. Rev. 195, 28o; 18 M1ch. L. Rev. 162; 19 M1ch. L. Rev.
232, 456, 458, 577, 669. That the injury in this case is within the law, seems
hardly questionable, since as the court so clearly points out, though the burg
lars did not enter the building which the deceased was protecting, yet his
very calling multiplied the chance that he would be near when danger came,
and in multiplying the chance, exposure to the risk was increased. He was
brought by the conditions of his work within the zone of special danger, and
the purpose of the law was to compensate for this, as the court said in Mal
ter of Leonbruno v. Champlain Silk Mills, 229 N. Y. 47o. In Chicago Dry
Kiln Co. v. Industrial Board, 276 Ill. 556, a night watchman was allowed to
recover under the Workmen's Compensation Law for injury received in a
fight with a trespasser. In Ohio Building Vault Co. v. Industrial Board, 277
Ill. 96, the death of a night watchman while on duty by being struck on the
head was prima facie evidence of assault and arose out of employment so
that there might be recovery.
W1llsConstruct1on of Repugnant ClausesIntent.A testator de
vised and bequeathed certain real and personal property to a woman, to be
used and enjoyed by her during her lifetime, with full powers of alienation
without limitation or restriction, and upon her decease without issue to revert
back to the estate of the testator. In a bill for a construction of the will,
held, (two justices dissenting), the devisee took an estate in fee, in spite of
the direction for disposition at her death. Gibson v. Gibson, (Mich., 1921),
181 N. W. 41.
In his dissenting opinion, Justice Sharpe cites two Michigan cases which
he regards as controlling,Robinson v. Finch, 116 Mich. 18o, and Cary v.
Tolcs, 21o Mich. 3o. In each of these cases a devise absolute in form was
held to be limited to a life estate by a subsequent provision for a gift over
on the death of the first taker without issue. The sole question is, of course,
which clause in the will shall control. No rule of construction is better set
tled than that the intention of the testator, as expressed in the will, shall
prevail. King v. Melling, 1 Vent. 231; Summit v. Yount, 1o9 Ind. 5o6; Lane
v. Vick, 3 How. 464. For this purpose the will must be considered as a
whole. Jackson v. Hoover, 26 Ind. 511. But when provisions of the will are
plainly repugnant, the testator's intent, the "pole star" of testamentary con
struction, has not enabled the courts to render decisions that can be easily
harmonized. As between two repugnant clauses, some courts have ruled that
the latter of the two should prevail on the theory that what the testator writes
last in his "last will." Sherrat v. Bentley, 2 M. & K., 149; Hamlin v. U. S.
Express Co., 1o7 Ill. 443; Hendershot v. Shields, 42 N. J. Eq. 317; Jarman,
W1lls, 6th Ed. 565. In deeds the prior clause controls. Cutler v. Tufts, 3
Pick. 272. This highly technical rule has been severely criticised, and is
never applied, it seems, except as a last resort. SchoulER, W1lls, par. 474.
See 18 M1ch. L. Rev. 785. The mere position of clauses or words should
not be conclusive as against the intention as manifested by the whole instru-
BOOK REVIEWS
Modern Democrac1es, by James Bryce (Viscount Bryce). New York, 1921.
The Macmillan Company. Vol. I, pp. xiv, 5o8; Vol. II, pp. vi, 676.
This is a book that every lawyer should read and every law student should
be required to read. It is the culminating work of a masterly mind that for
over fifty years has been studying governments, ancient and modern,1 and
meantime the writer has had the practical advantage of holding high and re
sponsible offices, including that of British Ambassador to the United States.
Viscount Bryce speaks plainly of American national, state and municipal
shortcomings in government, especially the last, but it is done in a kindly
vein. He is a friend of America and gives us credit for much.9
The immense value of this book to all thinking Americans is shown by
a few references to the wealth of information, political philosophy and warn
ings scattered throughout its 1117 pages. He says that the ultimate test of
democracy is what it "has accomplished or failed to accomplish, as compared
with other kinds of government, for the well being of each people."* He
points out that "The ancient world, having tried many experiments in free
government, relapsed wearily after their failure into an acceptance of mon
archy and turned its mind quite away from political questions" and not until
the sixteenth century was any persistent effort made to win political freedom.*
During the long intervening centuries when a rising occurred it was for good
government and not self government. "Men were tired of politics. Free
government had been tried and had to all appearance failed. Despotic mon
archies everywhere held the field." Bryce very pertinently asks, "Who can
say that what has happened once may not happen again?"* Until a few
years ago Asia had always been subject to kings or tribal chieftains, how
ever selfish or sluggish.8 The Grecian and Roman free institutions were due,
not to theories, but to resistance to lawless oppression by a privileged class.*
True the American Revolution was in the name of abstract principles and the
doctrine of man's natural rights* but the French Revolution was chiefly to
get rid of galling privileges and then for fourteen years a military dictator
was tolerated* In Germany a fifty-year contest for constitutional freedom
ceased when military success in 187o brought prosperity, even with oligarchic
rule.10 In fact popular government has generally been established to get rid
1 Vol. II, p. 122.
9Vol. II, pp. 154, 165.
Vol. I, p. 6. See also Vol. II, p. 358.
4 Vol. I, pp. 12, 27. See also Vol. II, p. 599.
Vol. I, p. 27. See also Vol. II, p. 600.
* Vol. I, pp. 24, 25.
'Vol. I, p. 26.
8 Vol. I, p. 33.
Vol. I, p. 37.
10 Vol. I, pp. 39, 40.
898
MICHIGAN LAW REVIEW
tion was from the republics of antiquity." But it has been subjected to un
foreseen strains and "The wonder is, not that the machinery creaks and
warps, but that it has stood the strain at all."" He points out that no Pres
ident, except Lincoln, has been a true orator." Speaking of the American
courts, he says, "They become what may be called the living voice of the
people, because they are in each State the guardians of that Constitution
through which the people have spoken and are still speaking till such time
as it pleases them to amend the fundamental instrument."" American law
yers will be pleased to read Viscount Bryce's statement that "legal education
is probably nowhere so thorough as in the United States."" He says, "The
leading State Universities of the West are a promising offspring of popular
government, repaying its parental care by diffusing a wider judgment and a
more enlightened zeal for progress than is to be found elsewhere in the mass
of citizens."" And again, "The number of men who have graduated in some
place of higher instruction is probably ten times as large (in proportion to
population) as in any part of Continental Europe, and much more than twice
as large as in Great Britain. These men have done much to leaven the vot
ing mass.""
The great service that democracy has rendered and is still rendering is
in preventing government from being conducted for the benefit of a class,
and this struggle is unending, "for Nature is always tending to throw Power
into the hands of the Few.""
The above are a few of the striking facts and conclusions with which this
work abounds. They have been collected during a long lifetime of experi
ence and study. Bryce himself says that his book is to furnish facts and
such explanations as may enable the readers to draw their own conclusions."
As he well says, "It is Facts that are needed : Facts, Facts, Facts."** His
whole book is a monument of and to legal research for factsa branch of
knowledge that hitherto has been too much neglected. And nowhere are
there richer mines of facts and opportunities for legal research than in the
study of the workings and changes in American national, state and municipal
governments. The future of democratic institutions throughout the world
will be profoundly affected by the success or failure of those institutions in
America, and the flood of light that can be thrown on the whole subject by
systematic legal research, directed by the great Universities, will go far
towards guiding the people towards correct conclusions.
_
Wn.UAM W. Cook.
New York C1ty.
"Vol. II, pp. 3, 165.
"Vol. II, pp. 25. 26*Vol. II, p. 67"Vol. II, p. 84.
Vol. II, p. 88.
"Vol. II, p. 97.
"Vol. II. p. 1'<>"Vol. II, p. 549"Preface, p. VIII.
"Vol. I, p. 1 2-
9oo
MICHIGAN LAW REVIEW
In the matter of analytical investigation the author has made more sub
stantial contributions. It is in this respect, indeed, that his treatise is most
valuable. The reader may be prejudiced at times by the author's habit of
introducing an analysis with the suggestion that writers on international law
are hopelessly confused in respect to the topic under discussion and that the
author will now proceed to set them right. It may be felt that analogies
with the principles of municipal law have been used too freely. The reader
will probably disagree with many of the conclusions, some of which may
even seem a bit fantastic. Throughout the treatise, however, the serious stu
dent will find essays in analysis which will repay careful study. Part I es
pecially contains excellent analytical work, including matter upon which
every young graduate student in international law might well be required
to sharpen his wits. An able lawyer, familiar with legal concepts and accus
tomed to accurate legal reasoning, has applied himself to the theories of in
ternational law advanced by the leading English and American writers. The
results are sometimes startling, usually suggestive, and frequently illumin
ating.
The treatise does not, unfortunately, bring the subject matter adequately
up to date. Some of the most valuable of recent monographs seem to have
been overlooked. The great mass of material to be found in the legislation,
orders, cases, and state papers of the recent war has received insufficient
attention. Possibly the omission was deliberate. The occasional reference
which the author makes to the events of the war would seem to indicate
that he is in no temper to appraise those events in scientific fashion. A few
of his reflections, indeed, read rather more like something from our recent
departments of propaganda.
The gravest defects in the treatise are due primarily, it would seem, to
the very limited categories of sources upon which the author has relied. Of
the periodicals, he makes frequent and somewhat promiscuous references to
the American Journal of International Law and to some of the leading Amer
ican law reviews, but almost no references of any significance to the many
excellent periodicals published abroad. Surprisingly little use is made of
arbitrations, treaties, state papers, cases, or other source materials. For all
that is indicated in the text or footnotes, such documentary collections as
Sturdza, Hertslet, the British and Foreign State Papers, and the monu
mental Martens collection may have been left practically untapped. Well
known monographs by Baldassarri, Catellani, Demorgny, Lammasch, Moulin,
Niemeyer, Politis, Strupp, Wehberg, and many others are either not cited
at all or cited only by author and title. There is practically no evidence in
the text indicating that such studies have contributed anything to the au
thor's conclusions. G. F. von Martens, Vattel, Bynkershoek, and others are
cited only in the English translations. Kluber, Bluntschli, Pradier-Fodere,
and Huber are cited only at second-hand. Calvo, Fiore, Holtzendorff, Liszt,
Nys, Bonfils, Despagnet, Heffter, F. de Martens, Moser, Piedelievre, Rivier,
and other authors of standard treatises are not cited at all. On the other
hand, there are 185 references to Hersey's elementary text-book and 285
BOOK REVIEWS
901
references to Halleck. It may be inferred that the work is based largely

upon what is available in fifteen or more of the better treatises and text
books, written in English.
A survey of the sources used provokes misgiving as to whether the
author was really prepared to write a treatise. Would it have been possible
to present his contributions along the line of critical analysis in a smaller
work on the theory of international law? Making due allowance for unfamiliarity with the continental literature, such a work could have been ad
mirably done. Many of the criticisms which are likely to be aimed at the
treatise could have been avoided.
As the work stands, it has a unique but somewhat restricted value. It
is unfortunate that it should have been prejudiced by the extravagant, not
to say ridiculous, claims which the publishers have made for it.
Edw1n D. D1ck1nson.
Outl1nes of H1stor1cal Jur1sprudence. By Sir Paul Vinogradoff, F.B.A.,
Fellow of the Russian Academy, Corpus Professor of Jurisprudence
in the University of Oxford. Volume I, Introduction, Tribal Law.
Oxford University Press, London, Edinburgh, Glasgow, New York,
Toronto, Melbourne, Capetown, Bombay. Humphrey Mil ford, 192o.
Pp. X, 428.
The title itself of this latest production of the leading English historian
of law seems in a way a challenge to our up-to-the-minute twentieth century
sociological jurisprudence which is the prevailing style, but Vinogradoff's
historical jurisprudence is a very different thing from that of Savigny, which
finally gave us a natural law with an historical content, or even from that
of the English comparative jurists of the nineteenth century, who apparently
assumed, "that all nations are constituted on the same lines and reproduce
the same characteristic features in their treatment of economic and social
problems." (Cf. p. 148). Vinogradoff would have the student of historical
jurisprudence "trace the life of juridical ideas in their action and reaction on
conditions"; that is, while "the order followed by legal history is chrono
logical, that followed by historical jurisprudence is, ideological." (p. 155) .
With this purpose in mind he gives in this first volume a careful re-ex
amination of the basic legal institutions of tribal society and promises a sec
ond volume treating the jurisprudence of the Greek City on the same plan.
In the execution of this he follows the lead of Maitland, whom he charac
terizes as the "most brilliant legal historian of modern England," in his scep
ticism as regards generalizations. On that much discussed question as to
whether primitive society was arranged on the matriarchal or the patriarchal
model, Vinogradoff says, "considering the immense variety of conditions in
ancient times, it is improbable that any exclusive theory will be true in all
cases." This is but one of the many instances which show that the author
has successfully steered clear of the difficulties and dangers of the ideo
logical method of presentation, which he himself admits, and has presented
9o2
MICHIGAN LAW REVIEW
in a new and clearer light the facts of primitive society "as he sees them
for the God of things as they are." Furthermore, his discussion of juridical
ideas as they act and react on their surroundings give to his work a socio
logical coloring that brings it into harmony with that of other twentieth
century jurists.
His attitude toward the subject of jurisprudence in general is shown in
the Introduction which constitutes about one-third of the present volume.
He would draw upon the subjects of logic, of psychology and of social sci
ence in order to coordinate and explain legal rules and to assert rights. The
data of ethics, he says, form a most important chapter of psychology, his
tory cannot be contrasted with the theoretical study of law because it pro
vides one of the essential elements of legal method while philosophy forms,
as it were, the atmosphere for all scientific studies. Following the plan sug
gested he discusses in his first chapters the relation of law to the several
subjects above mentioned and to political theory. The chapter on Law and
Logic shows by many instances taken from English Law the futility of the
common practice of our courts of always seeking definitions of law from
which to deduce conclusions rather than by proceeding inductively to deter
mine the rights of the parties under all the circumstances. He shows that
this mechanical jurisprudence of the courts frequently brings us to the most
irrelevant conclusions. He cites here also some of Ihering's brilliant and
caustic criticisms of the way our Teutonic brethren have by this process built
up their fantastic "jurisprudence of conceptions," but concludes that the
abuse of logic ought not to obscure the value of the method when properly
used. The syllogism still remains a valuable legal instrumentality but major
premises must from time to time undergo a process of revaluation. Here
it may be remarked that the statement that "utility, public interest, morality
and justice are constantly claiming their share in the thoughts of the law
yer" might well be compared with Justice Brewer's statement in Mueller v.
Oregon, to the effect that "we take judicial cognizance of matters of gen
eral knowledge," as showing that both the English jurisconsult and the
American jurist are affected by the sociological tendencies of their environ
ment. The same coloring is evident in the chapter on Law and Psychology.
As regards the question of criminal responsibility "society understands that
it has not a single force, accumulated and isolated in a single individual to
contend with, but that it stands face to face with a complexity of forces con
verging in an individual." Hence the necessity for an individualization of
the penalty. "The punishment is to fit the moral case of the criminal as the
drug has to fit the pathological case of the sick man." Furthermore, while
the author follows Kant in saying that the imperative of dutywhat Carlyle
calls the sense of the oughtnessis a category of the human mind, never
theless, he follows Durkheim in saying that it is the influence of society
which has penetrated us with the beliefs, religious, political and moral, which
govern our conduct.
In the chapter on Law and Social Science the author says that there is
an element of truth in each of the theories as to the nature of the State;
9<H
MICHIGAN LAW REVIEW
ject could not have been treated in smaller space and its importance justi
fied the most exhaustive treatment possible.
No other characteristic of the book is more marked than the charm and
brilliancy of its stylevivid, animating, thrilling in its word pictures. What
a superb special correspondent Senator Beveridge would have been ! For
this is not merely a lawyer's book. Although it deals with legal themes and
cases and the life of a man whose fame rests almost solely on the cloister
like atmosphere of a supreme court, the book is as interesting to a layman as
to a lawyer.
- As a panorama of American history of revolutionary days and the suc
ceeding generation, it is a genuine contribution to American history; as a
thrilling picture of the acts and cross-currents of the politics of the first gen
eration of American public life, it has no superior; as a faithful portrayal
of such men as Washington, Hamilton, Jefferson, Adams and a host of rev
olutionary characters, it will bear a sustained interest to every reader of
good books and historical subjects in America.
One of its most notable distinctions is the story of how Marshall formed
his opinions of the need of a strong central government during the dark
days at Valley Forge when a weak and powerless Continental Congress could
not supply America's freezing and starving troops with clothes and food.
Marshall served all through Valley Forge side by side with Washington and
the real John Marshall was formed then.
The finest chapter in the whole four volumes is that on the ratification
of the Federal Constitution by the Virginia convention. This chapter is a
distinct contribution to American history, no matter whatever else has been
written of the event.
The only criticism of the book that can be suggested, and it is not a fun
damental one, is that the trial of Aaron Burr is given too much space and
too elaborate a treatment. The subject does not justify either the space
given to Burr nor the partiality to him plainly shown by the author. The
trial of Burr was without question a notable event and the opinions of Mar
shall, who presided, on the law of treason, form an important chapter in the
development of that law ; but the life of John Marshall did not require any
vindication of the career of Aaron Burr, if indeed Burr is entitled to one,
and we say this without wishing to revive an ancient historical controversy.
The book abounds in fine and accurate pen pictures of Marshall the sol
dier, the man, the devoted husband to an invalid wife, the jolly comrade at
sessions of his club, the sportsman, and the just judge. We find Marshall
the man, much like other human beings, and the cloud-like cloak which has
so long enveloped the great personality with a grave and judicial austerity is
removed and we see a real man of flesh and blood, whom anyone would de
light to know and hold fellowship with.
Beveridge is markedly fair to Jefferson and the Democrats of that period.
Thus, he preserved the truth and the fairness of history that make historical
writing live long after the author is gone. - We feel that the author is him-
9o6
MICHIGAN LAW RHVIEW
interest in this feature of the work. There is a growing insistence in mod

ern law school teaching that leading cases be studied in the light of the
historical conditions that gave rise to them; and in this we have but another
evidence of the close and vital connection between law and history ; between
the development of a nation's jurisprudence and its general course of history.
Law is not something removed and apart from human life; it is the very
breath and vitality of the life of the state, and its development is but the
state's development. Society is constantly engaged in a struggle to express
its ideals in law. No man did so much to express American constitutional
ideals and Federal ideals in law, as did John Marshall.
As we read the book we are filled with admiration for the long, ex
haustive labor, the painstaking research that the author obviously put into
his work. It must have been a genuine labor of love ; nothing else could
have held the author to such .a laborious task.
No lawyer can afford to miss this great work ; every student of American
history will find it of particular value; every American should read it. The
entire American bar owes Senator Beveridge a debt of gratitude for his
life of John Marshall, and he who reads it will be a better American for
having done so.
Wayne C. W1ll1ams.
Denver, Colo.

Michigan Law Review

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This is a reproduction of a library book that was digitized

by Google as part of an ongoing effort to preserve the

ADMINISTRATIVE LAWAuthority to License Private Detectives.. 648

ADMIRALTY LAWRule of "Care, Cure, and Wages" as Applied to

ADVERTISEMENTSUse of Wall for, as Easement

ALIENATIONNew York Rule against Suspension of the Power of

ALIMONYAward of Specific Portion of Husband's Estate as

ANIMALSDamages by Trespassing Chicken

APPEAL AND ERRORAllowance of Costs for Brief Needlessly

ASSIGNMENTSInstruction to Debtor to Pay Debt to Third Person.. 552

ATTORNEY AND CLIENTAbsence of Counsel as Unavoidable Cas

Limitation of Amount of Liability

Instruction to Find Defendant Guilty in Criminal Case

EXECUTORS AND ADMINISTRATORSSuits by and against For

Infection of Wife by Husband with Venereal Disease

INTERNAL REVENUE (See also Income Tax)"Losses Incurred in

JUDGMENTSAbsence of Counsel as Unavoidable Casualty Excusing

LEASESHabendum Clause of Oil and Gas

LEVER ACTVoid for Indefiniteness

MAILSFreedom of Press and Use of

MARITIME LIENSPersonality of Ship

MINIMUM WAGEValid though no Provision in Act for Notice to

Master's Liability for Negligence of Physician Engaged to At

NEGOTIABLE INSTRUMENTSAcceptance of Check as Payment.. 666

OFFER AND ACCEPTANCE (See Contracts)

ORDINANCEAuthorizing Commissioner to Revoke License

PARENT AND CHILDAdoptionEffect of Re-adoption by Natural

PARTNERSHIPDuty to Keep Accounts

PATENTSRestrictions upon Sale and Use of Articles Protected by 274

PLURALITY OF ADVANTAGE AND DISADVANTAGE IN

RESTRAINTS ON ALIENATIONScope of Rule Against

RULE AGAINST PERPETUITIESScope of

RULE IN SHELLEY'S CASEApplication of

STATESEquality of, in International Law

Oral Agreement by Vendor to Sell other Property Subject to

TREASONDefinition of, in Federal Constitution no Limitation upon

TRIALDisqualification of Judge by Prejudice

TRIALSBringing Third Parties into Actions at Law

TRUST COMPANY IN MICHIGAN, THE (art.)

TRUSTSApplication of Doctrine of Cy pres

USES (See Future Estates)

CASES COMMENTED UPON

Boals v. Pennsylvania R. Co...

Calbrick v. Marysville Water &

Globe Furniture Co. v. Wright..

Illinois Steel Bridge Co. v. Wayland

Kelly & First State Bank v.

Throop v. Western Indemnity

Walls et al. v. Midland Carbon

CONSTITUTIONAL LAW IN 1919-192o*

MICHIGAN LAW REVIEW

M1scellaneous Nat1onal Powers

The validity and the effect of the Eighteenth Amendment3 was

CONSTITUTIONAL LAW IN 1919-192o

constitution cannot authorize a referendum to the electorate from the

MICHIGAN LAW REVIEW

the submission of a proposed amendment by Congress and its con

CONSTITUTIONAL LAW IN 1919-192o

to the rejection or ratification of an amendment. An earlier case9 on

MICHIGAN LAW REVIEW

"The Chief Justice, in a separate concurring opinion confined to the

CONSTITUTIONAL LAW IN 1919-192o

pose which it was intended to accomplish, the confusion will

MICHIGAN LAW REVIEW