assume that" "farm drainage" is, in Illinois, "a public purpose to accomplish which the State may, by appropriate agencies (in this case a combination of owners of wet lands) exert the general powers it possesses for the common good?" Are cattle guard cases in point? Are public crossing cases in point? Are general expressions relied on in the State Supreme Court, in cases holding a railroad company liable in tort for injuries resulting from a tortious obstructing of the natural channel of a water course or slough in point? See R. R. Co. v. Horan, 131 Ill., 288, and R. Co. v. Thillman, 143 Ill., 127. Then what is left of the State decisions? Besides, how can State decisions control the meaning and application of the Fourtenth Amendment within the limits of the State?

The majority of the Supreme Court of the United States appear to say, in substance: "So far as our jurisdiction is concerned, we do not care what the State Supreme Court said about the case, but, so far as the merits of the case are concerned, we are bound by what the State Supreme Court said." (See the opening paragraphs of the dissent of Mr. Justice Brewer in C., B. & Q. R. Co. v. Chicago, 166 U. S., 226, 259.) What do the concurring Justices mean when, speaking by Mr. Justice Holmes, they say: "I suppose it to be plain, as my Brother Brewer says, that if an expense is thrown upon the railroad unlawfully, its property is taken for public use without due compensation"? Does Mr. Justice Brewer really say that? The trouble with the whole case appears to lie in the assumption that the right of the owners, as such, of these wet lands in Bristol township, Kendall county, to drain water into Rob Roy creek is just the same kind of a right as the right of a citizen, as such, to travel up and down a public street, or a public, navigable stream. It seems very clear that the Railroad Company was entitled to compensation, to be paid by the owners of the lands to

be benefited by the system of drainage proposed. The decision appears to sanction one of the very things the Fourteenth Amendment forbids, a State legal fiat turning an enterprise, inherently individual in its nature, into a governmental enterprise. It may be doubted whether the decision ought to be accepted as final, based as it is upon a debatable, to say the least, but not debated, assumption, and even at that upon a practically five to four vote. See In re Tuthill, 49 L. R. A., 711, N. Y., and notes; Mound City Land Stock Co. v. Miller, 60 L. R. A., 190, Mo., and note.3

2. DUE PROCESS OF LAW AS APPLIED TO INFORMING A CORPORATION THAT IT HAS BEEN SUED. In Nelson v. C., B. & Q. R. Co., 225 Ill., 197, 80 N. E. Rep. 109, Hand J., the State Supreme Court decided that that part of paragraph 5 of the Practice Act which permits. a plaintiff to give a defendant corporation notice of suit "by publication and mail in like manner and with like effect as is provided in Sections 12 and 13 of" the Chancery Act, is consistent with the due process of law enjoined by Article II, Section 2, of the State Constitution, when such form and mode of procedure for giving notice is used by a plaintiff in an action to obtain a

After the foregoing was written and in type, the report of West Chicago Street Railroad v. Illinois, 26 Sup. Ct. Rep., 518, appeared, wherein the Supreme Court of the United States, by a five to four vote, affirmed the decision of the State Supreme Court in 214 Ill., 9, sustaining an ordinance of the council of Chicago directing the Street Railroad Company to lower a tunnel under the Chicago River, making no provision for compensation. The ordinance had a close shave, for it is stated that Mr. Justice Holmes concurs in the judgment upon the authority of Chicago, B. & Q. R. Co. t. People. It is extremely difficult, for the writer at least, to appreciate the line of reasoning by which a judge could concur in the C., B. & Q. case, and dissent in the West Chicago Street Railroad case. The decision in the latter case seems clearly right, and the decision in the former just as clearly wrong. The failure of Mr. Justice Brewer to carry any of his associates with him in the C., B. & Q. case, what is the true explanation of it?

a [2 Ill. Law Rev., 109, June, 1907.]

personal judgment for money against a railroad corporation organized under the laws of the State, and the action is filed in a Court of a county through or into which the railroad runs, the principal office of the corporation being in a different county. See paragraph 2 of the Practice Art. The Court does not consider, expressly at least, the application of the Full Faith and Credit Section, and the Fourteenth Amendment, of the Federal Constitution, though it must be admitted that, at least since the adoption of the Fourteenth Amendment, July 28, 1868, the ultimate tribunal on the question decided in this case is the Supreme Court of the United States. Pennoyer v. Neff, 95 U. S., 714, 733. As against a nonresident, who is, and stays, off the soil of the State, no form and mode of procedure for giving notice of suit, whether by "personal service" or by "constructive service," can give a Court of the State authority to entertain a proceeding for a personal judgment. Pennoyer v. Neff, supra; Sirdar Singh v. Faridkote, 1894, A. C., 670. The form and mode of giving notice by publication and mail (See Bickerdike v. Allen, 157 Ill., 95, cited by the Court), prescribed by Sections 12 and 13 of the Chancery Act do look loose for use in a personal action ex contractu or ex delicto, and the permissible administration of the Act obviously may be very loose. But perhaps it may be said fairly, that such looseness, real or only apparent, is for the Legislature, not the Courts, to deal with. It should be noticed, however, that the question before the Illinois Court was national in its character, that the true rule on the subject of notice of suit to people on the soil of a State, so far as the irreducible minimum required by due process of law goes, must be capable of substantially uniform and just application throughout the United States, and that the Illinois Court deals with the question from an exclusively State point of view, seemingly

as if there were no such thing as a Constitution of the United States. The opinion of the Illinois Court proceeds upon the theory, not necessary to support the result reached, three Illinois cases being cited in its support, Bimelen v. Dawson, 4 Scam., 536; Welch v. Sykes, 3 Gilm. 197, 201; Smith v. Smith, 17 Ill., 482, that it is possible for a State Court to have jurisdiction sufficient to support a judgment enforceable in and by the State where rendered, but not sufficient to support a judgment enforceable, as of right, in and by any other State. The soundness of that theory remains to be proved, however, whenever the question properly arises. How can civil proceedings in a State Court be "judicial proceedings," unless every other State must give them "full faith and credit," or, as the Act of Congress of 1790 (R. S. U. S., Sec. 905) says, "such faith and credit as they have by law or usage in the Courts of the State from which they are taken?" See "The Doctrine of Haddock v. Haddock," 1 Ill. Law Rev., 219, 229 [ante p. 153]. As respects State criminal proceedings, see Huntington v. Attrill, 146 U. S., 657; Wisconsin v. Pelican Ins. Co., 127 U. S., 265, and note on this case, 1 Ill. Law Rev., 239 [ante p. 179].

3. DOES LEGISLATIVE POWER EXIST TO CONFIRM AND LEGALIZE A MAJORITY PLAN OF REORGANIZATION ON INSOLVENCY? - The decree of the federal Circuit Court, Grosscup, J., confirming and legalizing against non-assenting creditors a plan for the reorganization of certain Chicago street railroad corporations, entered before, and without contemplating any judicial sale to get rid of liens, was reversed by the Circuit Court of Appeals, Brewer, Justice, Seaman and Baker, Circuit Judges, Saturday, September 7, 1907. The decree rested upon the proposition that a Court of Equity, bound by the existing

a [2 Ill. Law Rev., 189, October, 1907.]

laws of Illinois concerning street railroad corporations, has the power to compel creditors of such corporations, when insolvent, to give up the lien of their securities in favor of men ready to advance money needed to reconstruct the roads, to rehabilitate the properties, as it is called, and also to exchange their securities for new ones of less face value, thus parting with the right to put into force existing legal remedies to produce the money due on the old securities; in fine, to submit to a shave, whether they liked it or not.

Laying these Chicago street railroad corporations to one side, anyone acquainted with the history of the reorganization of insolvent public service corporations in this country, through the instrumentality of foreclosure and other creditors' suits, probably will have to agree with Judge Grosscup to this extent, namely: power to deal with persons financially interested in such reorganizations, without and against their consent, ought to reside somewhere.

If such power does reside anywhere, it must be in the Legislature, State or National. Does it reside in either?

The case of Canada Southern Railway Company v. Gebhard, 109 U. S., 527, is an interesting one and a very suggestive one upon this question. Chief Justice Waite there says that a Canadian Legislative Act confirming and legalizing a plan of a majority of the creditors for the reorganization of an insolvent railroad company is a species of Bankrupt Act, and "is no more than is done in bankruptcy, when a composition agreement with the bankrupt debtor, if assented to by the required number of creditors, is made binding upon the non-assenting minority" (pp. 535-536). On that view, perhaps Congress, under its delegated power "to establish uniform laws on the subject of bankruptcies throughout the United States," may have adequate power by a general law to