N OTWITHSTANDING the depression in stocks caused by the long expected Minnesota Rate Case decision, it is rather difficult to perceive any sound basis. therefor. Probably the greatest apprehension arises from the uncertainty as to the construction of the decision, and the new application of the "rule of reason," for while the court upholds the power of the states to regulate intrastate rates even though they may indirectly affect interstate commerce, in the absence of federal action, it is held that the rates must not be confiscatory. This, of course, implies that in the last analysis each case must stand on its own bottom, which is undoubtedly the reason for withholding a decision on the rate cases from states other than Minnesota.

Power of States to Regulate.

A

FTER stating that the states cannot directly burden or regulate interstate commerce, Mr. Justice Hughes, delivering the opinion of the court, outlines the scope of the state power in the absence of federal legislation. "Within these limitations," says Justice Hughes, "there necessarily remains to the states, until Congress acts, a wide range for the permissible exercise of power appropriate to their territorial jurisdiction, although interstate commerce may be affected. It extends to those matters of a local nature as to which it is impossible to derive from the constitutional grant an intention that

they should go uncontrolled pending federal intervention. Thus there are certain subjects, having the most obvious and direct relation to interstate commerce, which, nevertheless, with the acquiescence of Congress, have been controlled by state legislation from the foundation of the government, because of the necessity that they should not remain unregulated, and that their regulation should be adapted to varying local exigencies; hence the absence of regulation by Congress in such matters has not imported that there should be no restriction, but rather that the states should continue to supply the needed rules until Congress should decide to supersede them."

This power, the court decides, extends to the fixing of reasonable intrastate rates. Holding that the indirect effect on interstate commerce caused by fixing rates up to the border of the state, thereby necessitating a readjustment of interstate rates to meet competition, was not objectionable, the court said:

"To say that this power exists, but that it may be exercised only in prescribing rates that are on an equal or higher basis than those that are fixed by the carrier for interstate transportation is to maintain the power in name while denying it in fact. It is to assert that the exercise. of the legislative judgment in determining what shall be the carrier's charge for the intrastate service is itself subject to the carrier's will. But this state-wide authority controls the carrier and is not controlled by it, and the idea that the power of the state to fix reasonable rates for its internal traffic is limited by the mere action of the carrier in laying an interstate rate to places across the state's border is foreign to our jurisprudence."

The decision that the state thus had power to deal with intrastate rates, in the absence of federal action, necessitated, of course, a decision whether Congress had, by the Interstate Commerce Act, occupied the field and displaced the state's power.

Effect of Interstate Commerce Act.

TH

commerce.

HE Interstate Commerce Act, the Supreme Court decides in the Minnesota Rate Case, does not amount to such congressional action as precludes state regulation of intrastate rates, indirectly affecting interstate For, says the court through Mr. Justice Hughes, "having regard to the terms of the federal statute, the familiar range of state action at the time it was enacted, the continued exercise of state authority in the same manner and to the same extent after its enactment, and the decisions of this court recognizing and upholding this authority, we find no foundation for the proposition that the act to regulate commerce contemplated interference therewith. Congress did not undertake to say that the intrastate rates of interstate carriers should be reasonable or to invest its administrative agency with authority to determine their reasonableness. Neither by the original act, nor by its amendment, did Congress seek to establish a unified control over interstate and intrastate rates; it did not set up a standard for intrastate rates or prescribe, or authorize the commission to prescribe, either maximum or minimum rates for intrastate traffic. It cannot be supposed that Congress sought to accomplish by indirection that which it expressly disclaimed, or attempted to override the accustomed authority of the states with

out the provision of a substitute. On the contrary, the fixing of reasonable rates for intrastate transportation was left where it had been found that is, with the states and the agencies created by the states to deal with that subject."

This portion of the decision is probably fairly satisfactory to the railroads, for a central control of these rates would undoubtedly eliminate the disastrous effects claimed to be caused by the necessity for readjustment and reducing of interstate rates to meet competition. This phase of the decision will undoubtedly lead to additional congressional legislation.

Reasonableness of Rates.

WHI

HILE the decision in the Minnesota Rate Case that the rates must be reasonable, i. e., not confiscatory, is, of course, hornbook law, the basis laid down for the valuation of railroad property to determine whether the fixed rates will yield a fair return on the investment may be rather difficult of execution. The holding of the court that the property should not be given an increased value "over the amount invested in it and beyond the value of similar property owned by others, solely by reason of the fact that it is used in the public service" is highly satisfactory, because the public should not be charged with what it has given away and because, as Justice Hughes points out, "it involves an appreciation of the returns from rates (when rates themselves are in dispute)." The decision of the court that the valuation should not extend "beyond the fair average of the normal market value of land in the vicinity having a similar character," would seem to fix a guide to valuation which it will be rather difficult to follow, and rate experts will be more and more in demand. It would seem that following out this rule would be "to indulge in mere speculation," as the court says of any attempt to estimate what would be the actual cost of acquiring the right of way if the railroad were not there. Altogether the case can be deemed of legal value only for its holding that the states may still make reasonable rates on intrastate shipments, and that the "physical" and not the "railroad" value must govern in determining the reasonableness of rates.

Impeachment of Judges.

W

HETHER a judge may be impeached for acts not criminal committed before his elevation to office is a nice point which is likely to present itself in the case of a New York Justice of the Supreme Court, whose pre-election conduct is now the subject of investigation. The alleged acts consist in requiring a retainer as a consideration for procuring political favors. Unlike the constitution of most states, that of New York does not specify the grounds for impeachment of an officer, and this would seem to be a material factor. In an early discussion of trial by impeachment Professor Theodore W. Dwight asserted that unless a crime is specifically named in the constitution, impeachments can only be instituted for statutory crimes. 6 Am. L. Reg. N. S. 269. This rule does not seem to have been followed under the New York constitution, for soon after the publication of Professor Dwight's article Judge Barnard was impeached in that state for granting, contrary to law, an ex parte order

enjoining a railroad company to close its books against the transfer of certain stock; malconduct and corrupt conduct in granting injunction orders and appointing receivers; and indecorous and indecent remarks and conduct while on the bench. See 6 Alb. L. J. 67, 79, 130. So that, taking it for granted that the commission of a crime is not essential to impeachment, the question arises whether acts committed before taking office are ground for impeachment. Acts committed during a previous term of office have been held grounds for impeachment in several cases. Examples of such instances are given in State v. Hill, 37 Neb. 88, wherein it was said: "Judge Barnard was impeached in the state of New York during his second term, for acts committed in his previous term of office. His plea that he was not liable to impeachment for offenses occurring in the first term was overruled. Precisely the same question was raised in the impeachment proceedings against Judge Hubbell of Wisconsin, and on the trial of Governor Butler of this state, and in each of which the ruling was the same as in the Barnard case. There was good reason for overruling the plea to the jurisdiction in the three cases just mentioned. Each respondent was a civil officer at the time he was impeached, and had been such uninterruptedly since the alleged misdemeanors in office were committed. The fact that the offense occurred in the previous term was immaterial. The object of impeachment is to remove a corrupt or unworthy officer." These cases, however, would seem to be authority only in the case of misconduct in office, and it would seem clear that acts not criminal, though demonstrating that a person is unfit for office, are not ground for impeachment where they were not committed during a term of office.

Foreign Juries.

HE granting of an application for a foreign jury in the case of indicted labor leaders in Passaic county, New Jersey, brings to light a method of procedure seldom resorted to. The procedure is not, however, a new one. Chief Justice Kent in Stryker v. Turnbull, 1 Cai. (N. Y.) 103, granted an application for a foreign jury in a civil case, and in New Jersey a foreign jury was summoned in the early case of Bell v. Van Riper, 3 N. J. L. 510. Summoning of a foreign jury in a criminal case on the application of the state was held to have been error in the recent case of Richards v. Com., 107 Va. 881. Other instances of summoning foreign juries may be found in the reports, though the practice is apparently seldom resorted to. Just what advantage is to be obtained by summoning a foreign jury, instead of ordering a change of venue, is not apparent.

"New" Federal Judicial Code.

F

EDERAL judges are commonly referring to it as "the new Judicial Code." But in Cayce v. Southern R. Co., 195 Fed. 786, 788, Judge Newman speaks of it as "the New Judicial Code." It can hardly be of any consequence that a judge capitalizes the "N" in "new," for undoubtedly after it ceases to be new-within a year or two probably-the courts will cease to call it new. But in Puget Sound Sheet Metal Works v. Great Northern R. Co., 195 Fed. 350, a capitalized

"New" has got into the headnote, although it is printed simply "new" in the judge's opinion. Section 296 of the Code itself provides that "This Act may be designated and cited as "The Judicial Code."" We are confident that no one will cite it with the word "the" capitalized, and we do not think it was good taste for the Committee on Revision to let it go that way. But "New" in the headnotes will, we suppose, be perpetuated in the digests. By and by the same or another headnoter will purposely or by inadvertence drop the word "new" entirely, and some lawyers in future generations will be misled to think that there was once a "Judicial Code" and afterward a "New" one; somewhat as in New York state there was a "Code of Procedure" which was superseded by the "Code of Civil Procedure," the former being thenceforth frequently referred to as the "Old" Code. Suppose that sometime or other Congress should desire to enact another "Judicial Code" instead of further amending the present one. Why, "New Judicial Code" would be an excellent distinguishing title for it. But But digest paragraphs referring to it and contiguous paragraphs referring to the present one as "New" would not fadge. We venture to predict that, as a result of abolishing "Circuit" courts and conferring their jurisdiction on "District" courts, federal judges will be compelled, many years from now, occasionally to remind practitioners that the "District" court described in textbooks and digests at one time was a different court from what it afterward became under the same name. Do not increase the confusion by introducing the fiction of a "New" Judicial Code.

Avoiding New Trial for Inadequacy of Damages.

T HE practice of ordering a new trial in a personal injury case unless the plaintiff stipulates for a reduction of the verdict is so often exercised that no one would question the right to pursue this course, and logically it would seem that the power to order a new trial for the inadequacy of the damages unless the defendant stipulates for an increase of damages should also exist. The exact point has recently been presented for decision and ruled in favor of the existence of the power, and by many it has been assumed that the question has never previously been adjudicated. This is not the fact, however. The Supreme Court of Pennsylvania had such a case before it in Bradwell v. Pittsburgh, etc., R. Co., 139 Pa. St. 404, wherein the trial judge ordered "that if the defendant company, within thirty days from this date, shall pay the plaintiff four hundred dollars, with costs of this case, then new trial is refused; otherwise new trial will be granted." The amount being tendered, the plaintiff refused the same, and judgment was entered on the verdict for six and one-fourth cents. Holding that the trial court had no power to order as it did, the Supreme Court said that the plaintiff "was entitled, as matter of right, to have the jury pass fairly on the question of damages, and by their verdict award him such sum as, under the evidence, he was entitled to." The same view was taken in Grand Rapids v. Coit, 149 Mich. 668, 113 N. W. 362, which was not, however, a personal injury case, but an eminent domain proceeding, wherein the trial judge entered an order for a new trial unless the condemnor would stipulate for an increase of damages. Holding this to be error, the court, speaking through

Justice Ostrander, said: "The practice of refusing a new trial if the owner of the verdict will remit the recovery to an amount which the evidence, in the judgment of the trial court, will support, is one of long standing. In cases where the evidence affords a standard or rule for calculating the sum which should be awarded, the practice, whether the verdict is excessive or is inadequate, is open to no objection. Where the award depends upon conflicting testimony, and especially where the allowance to be made rests, of necessity, in the sound judgment of the jury, this asserted and admitted power of the courts is sparingly exercised. In any case the one in whose favor the verdict is rendered is given the option to remit or submit the issue to another jury. The general rule is that, when a trial court determines that the damages awarded upon conflicting evidence are inadequate, a new trial will be granted, and that the court cannot render judgment for an amount greater than the verdict; nor can a new trial be refused on condition that the defendant pay a sum fixed by the court." Of course where the proper rule of damages can be ascertained and the exact amount of inadequacy is apparent, such a stipulation may properly be required and received. Carr v. Miner, 42 Ill. 179. But even in such a case, as the Supreme Court of Illinois said in the case last cited, "the practice is one that should be sparingly indulged, and should never be adopted except in clear cases."

Extradition Treaties.

THE HE decision of the United States Supreme Court that the fact that Italy refuses to permit the extradition of its citizens is not operative as a ground for refusing extradition to Italy of a citizen of the United States, in other words that the executive department, and not the judicial, has exclusive power to abrogate treaties, was not unexpected, and seems to be sound. The attitude of the federal government on treaty matters, however, seems to be subject to well-founded criticism. Just why concessions should be made to foreign governments who are not willing to make like concessions, is rather difficult of understanding. This government seems to be less shrewd in business deals than its citizens, and a general revision of treaties would not be amiss. Foreigners have in the past been given rights by treaties which have not been accorded to our citizens abroad, and which, even if accorded, were such that they would be of little or no value to us. The California situation presents a striking illustration of this point. According to the view previously expressed in these columns California may not restrict the holding of lands by Japanese, and yet the rights accorded to American citizens in return therefor are of little value. Conditions here and in Japan are Japan are so different that the comparative value of concessions is entirely out of proportion. The recent developments along the line of treaty restrictions and interstate commerce power certainly furnish much ammunition for champions of state rights.

the facts in the case. Such laws would be particularly

beneficial to the poor man seeking compensation from large corporations for injuries. Under the present system the poor man has little chance against the experts of the corporation."

Such a law might not be subject to the constitutional objections urged against a statute providing for the appointment of experts by the court. The Michigan statute providing for the appointment of experts by the court was, it will be remembered, declared unconstitutional, the court saying: "The power of selecting and appointing witnesses who shall, after appointment, acquaint themselves with the matter in controversy, and testify concerning the same, is in no sense a judicial act, and if exercised by the court in accordance with the mandate of section 3, would entirely change the character of criminal procedure, and would seriously endanger, if not absolutely destroy, those safeguards which our constitution has so carefully enacted for the protection of the accused. The most cursory examination of section 3 will disclose its vice. The court is directed to appoint one or more suitable, disinterested persons to investigate and testify. This appointment is to be made without notice to either the prosecuting attorney or the accused. The reasons which impel the court to make the selection are not of record and can never be known. The names of the selected experts cannot be indorsed upon the indictment by the prosecuting attorney as required by law, for he himself is as ignorant of their identity as is the accused. The right of one accused of crime to know in advance the names of the witnesses who will testify against him and to examine into their character, means of knowledge, etc., in order that he may properly prepare his defense, is a right as ancient as our criminal jurisprudence. The court is commanded to make known to the jury the fact of the appointment, and that his appointees have been found by him to be suitable and disinterested. The section then provides that other experts may be sworn by either prosecution or defense. This is an idle provision, for in the face of the certificate of character, fitness, and ability given to the court experts by the court, experts summoned by either side would receive but scant consideration at the hands of the jury; their testimony would be swept aside in a breath. Juries are most anxious to ascertain the opinion of the court as to the guilt or innocence of the accused, and, ordinarily, more than willing to adopt that opinion as their own." People v. Dickerson, 164 Mich. 148. It might be said with some force that the statute which Senator Kenyon proposes is subject to the same objections. However that may be, it would seem that the remedy suggested would not be very efficacious, for the usual objection to medical experts is that on an identical hypothetical question experts on opposite sides will give opposite opinions, which would not be at all affected by the appointment of a medical referee to "see that they (experts) confine themselves to the facts of the case." The Michigan statute which was declared unconstitutional

Torts of Infants.

AN Ohio attorney has been seriously upbraided by the

so.

press of that state for bringing an action against a fourteen-year-old boy for $15,000 damages for destroying an eye of another boy while at play. One paper confidently asserts that "the chances are the courts will throw the case out when it is reached." We wonder if this is Strange as it may seem, the courts have frequently had before them actions against infants for injuries caused while at play, and the courts and juries have not been slow in holding children to account, even in the case of young infants. Chancellor Kent's statement that "infants are liable in actions arising ex delicto, whether founded on positive wrongs, as trespass or assault, or constructive torts of frauds," 2 Kent's Com. 241, has frequently been approved. An infant was held liable for destroying shrubbery in Hutching v. Engel, 17 Wis. 230, though he was but six years of age. A jury awarded a verdict of $2500 against a boy of ten years of age for shooting another in O'Brien v. Loomis, 43 Mo. App. 29, which was, however, set aside on appeal from errors on the trial. A judgment for $1800, for injuries caused by shooting, against a boy thirteen years of age, was upheld in Horton v. Wylie, 115 Wis. 505. Likewise a judgment for $180, for assault by shooting an arrow, against a boy twelve years of age, was sustained in Bullock v. Babcock, 3 Wend. 391. An infant fourteen years of age was held liable for frightening a horse by shooting off a firecracker on the Fourth of July, in Conklin v. Thompson, 29 Barb. (N. Y.) 218. A verdict of $1000 against a boy twelve years of age for injuries by shooting was sustained in Conway v. Reed, 66 Mo. 346. A similar verdict for assault against a boy thirteen years of age was sustained in Peterson v. Haffner, 59 Ind. 130. These illustrate the idea that to the judges, attorneys, and jurymen in practically every jurisdiction it has not been thought unjust to make an infant pay for his wrongful acts. Of course there are limits beyond which the courts should not go. It was said in Briese v. Maechtle, 146 Wis. 89, which was an action for injuries unintentionally inflicted while playing tag at recess: "Calling back to the mind for a moment the old school yard at recess, its shouts, its laughter, and its confusion, the sudden dash of boys here and there, the game of marbles in one place, hopscotch in another, and crack the whip in another, its boys darting here and there playing tag or prison goal and intent on catching or escaping from their fellows, can any man truthfully say as he recalls the scene that the ten-year-old defendant in the present case was doing anything more or less than healthy boys of his age have done from time immemorial and will continue to do as long as the race retains its activity and love of innocent sport? It seems to us that this question can receive but one answer, and that in the negative. The injury here was serious and deplorable, but the severity of it does not affect the character of the act which caused it, so far as the question of negligence is concerned. If there may be liability for this injury, then it seems that there may be liability for the multitude of trivial injuries which are accidentally inflicted

by children on each other in the course of their lawful games. This would open up a new and vast field of personal injury ligitation."

With reference to the ethical side of the question there is not much in the statement that a judgment so recovered starts the defendant infant in life with a great handicap. His handicap is not nearly so great as that of the boy whom he has deprived of a leg, an arm, or an eye, for while the circumstances of the defendant may be such that he may at some time pay the judgment without any inconvenience, the injured member of the plaintiff can never be replaced.

Law and Theology.

THE HE Roman Catholic Archbishop of Dublin, speaking as Chancellor of the National University of Ireland in an address delivered in University College, Dublin, recently, referred more especially to the faculty of law in the university, and said that there was a special reason why he himself as an ecclesiastic should take an exceptional interest in that faculty, since the studies of law and of ecclesiasticism came into the very closest relation. The layman, said the Archbishop, had common law and equity, and the ecclesiastic had canon law, and incorporated with it was the civil law, which was common to both. Apropos of this incident the London Law Times observes that the close relationship between the studies of law and theology may, perhaps, be best realized when it is remembered that the early ecclesiastical Chancellors contributed to the jurisprudence of the former Court of Chancery, which bears the name of Equity in England, from the canon law itself many of the principles which lie deepest in its structure, while the Roman law, more fertile than the canon law in rules applicable to secular disputes, was not seldom resorted to by a later generation of Chancery judges amid whose recorded dicta we find entire texts from the Corpus Juris Civilis embedded with their terms unaltered. The great influence of the church in the formation of the system of English jurisprudence is evident. It has been the received opinion that the supply of men in early times for the legal profession came very generally from the church, and the name of the clerk being in old times attached to almost every legal office below the grade of serjeant, seems to confirm this idea. In the eleventh century mention is made of certain of the English priesthood who had acquired great fame as jurisconsults, and Sir William Dugdale states that up to the time of the conquest there were few lawyers in England who were not clerks in holy orders. Lord Campbell, writing of Ralph de Hingham, Chief Justice of England in 1278, says: "Without the clerical tonsure he became a candidate for business at the bar, but, such was the belief that the characters causidicus and clericus must be united, that to further his success he was obliged to take orders, and he was made a Canon of St. Paul's." Lives of the Chief Justices, vol. 1, p. 72. Among the Canons of St. Paul's in the reign of Henry III were as many as ten of the judges at Westminster Hall. Dugdale, Orig. c.

It was not till the middle of the thirteenth century that Westminster Hall saw the last of the Cleri Causidici, while of course, till the period of the Reformation, the holding of the Great Seal by an ecclesiastic was the prac

tice. The appointment to the Lord Chancellorship of Sir Thomas More, a layman, while by no means without precedent, was, nevertheless, an unusual incident.

Probation and Jurisdiction.

WE

HETHER or not the jurisdiction of the court is at an end where a prisoner, released on probation, is rearrested, and, after confinement for a few days in jail, is again released, so that he cannot thereafter be again arrested and imprisoned on subsequent violations of the conditions of his release, is discussed in the case of People v. Dudley, (Mich.) 138 N. W. 1044. Holding that the power to again imprison the offender continued, the court said: "As we understand counsel for the respondent, they claim that the court, because of what occurred on or about April 13, 1911, revoked and terminated the probationary term of respondent, and that, under the statute, it only remained for the court to proceed to sentence, and that because it permitted the probation officer to hold the respondent in jail a few days, it thereby exhausted its authority to pronounce sentence. It might be well to ascertain what power the court had, under this statute, and what authority was actually given to the officer by the court in this instance. The statute provides that, before passing sentence, the court may place the respondent in the custody and under the supervision of the probation officer, 'under such terms and conditions as it may require.' The record discloses that, when respondent was placed in charge of the probation officer, such officer was then and there instructed by the court to take respondent into custody at any time thereafter that the respondent violated the conditions of his probation and such officer was further instructed to report to the court the fact of respondent's commitment. The record shows that the respondent violated the conditions of his probation, and was taken into custody by the officer in exact accord with the instructions of the court. The officer also, as he was required to do, reported the fact of respondent's commitment to the court. It also appears that it was the opinion of the probation officer that if respondent 'was kept in jail a few days, and then given another chance, that he would perhaps be able to keep the conditions of his parole in the future, and he (the officer) was informed by the court that he might take such course.' We find nothing here to indicate that the court revoked and terminated the probation. Certainly the probation officer could not terminate it. Under the scheme or plan of this statute the respondent was all of the time in charge and custody of the probation officer; and unless we are to hold that such officer has the power to revoke and terminate such probation, it cannot be held that anything which the officer did amounted to such revocation. We do not think that the officer had such plenary power, nor do we think that he attempted to exercise it. He was simply obeying the order of the court made in the first instance. Nor do we think that there was any action of the court in April that indicated that it revoked and terminated the probation. We are not prepared to hold that, under the humane provisions of this statute, the court dealing with such a case may not continue, modify, and even extend the period of probation in the hope that the respondent may sufficiently reform, so that in the