ment. Some strong articles have appeared in the law periodicals, written by distinguished lawyers, holding that the initiative was certainly contrary to the United States Constitution, the argument being chiefly based upon the idea that the term "Republican form of government" meant that particular form of government existing in the various States at the time the constitution went into effect. It has been said that the idea of a representative form of government was distinct from that of a pure democracy in that, whereas the representatives of the people made and administered the law in the former case, in the latter case it was done by the people direct, and that our forefathers had this distinction expressly in mind. The question has just been decided by the Supreme Court of Oregon, in Kadderly v. City of Portland, 74 Pacific Rep. 710, in which the court upholds in every particular the amendment to the State constitution, adopting the initiative and referendum for the State of Oregon.

IN an article entitled "The Government's Liability for the Use of Patented Inventions" in the American Law Register for January, Charles C. Binney points out the hard lot, under certain circumstances, of the patentee whose invention has been used by the government. Although "the abstract right of the holder of letters patent from the United States, whether as original inventor or as assignee, to receive compensation for the use of the patented invention by the gov ernment itself, is thoroughly established," yet the law is far from satisfactory in regard to practical enforcement of that right. The right of suit is clear when an express or implied contract by the government can be shown; such contract can be enforced in the Court of Claims. But "no contract can be implied from the mere use of a patented device by government officers through ignorance, carlessness, or mistake, or without proper authority. So, too, where the government uses a mechanical device of any kind as the invention of a certain person, and under a contract with him, no contract can be

implied with a third party who asserts that the device used is really covered by his patent. Such a claim, if valid at all, is for an infringement and is not within the jurisdiction of the Court of Claims." "Infringement is a tort, and the United States, it is held, cannot be guilty of a tort, and hence cannot be liable on any such ground."

After reviewing the more important cases in which the government's liability has been passed on by the courts, Mr. Binney sums up his subject in the following words:

It is perfectly evident that neither the statutes which govern the Court of Claims, nor the rules as to appeals from that court, have been drawn with any reference to the peculiar nature of suits on patents. As the issues in regard to the scope and validity of the patent are precisely the same where the government is charged with having used a patented device under an implied contract, as in an ordinary infringement suit, there is no reason whatever for excluding any evidence from the consideration of the Appellate Court in the former class of cases, which would not be excluded in the latter class. There can hardly be a doubt that the exclusion of all expert testimony was due to a mere accident, the fact that when the rules were drawn the jurisdiction of the Court of Claims in patent cases was not taken into account. It is to be hoped that the rule will some day be amended, especially in view of the evident tendency to construe the scope of that jurisdiction rather broadly, and of the probable increase in the number of such patent suits. Certainly the parties to a suit. in the Court of Claims are entitled to as full a consideration of every feature of their case in the Appellate Court as are the parties to any other judicial proceeding.

As to the statutes regulating the jurisdiction of the Court of Claims, if they cannot be legitimately construed so as to give a patentee the same rights in the case of an infringement by the government that he would have as against a private infringer, then the spectacle is presented of a constitutional right, the existence of which the Supreme Court has repeatedly recognized, but which

cannot be asserted in any court, unless Congress can be persuaded to grant jurisdiction in any particular case. Such a state of affairs does not seem in accord with modern views as to the rights of the citizen.

To the Columbia Law Review for February Thaddeus D. Kenneson contributes some pertinent observations on "The New York Anti-Trust Act" (Chapter 690 of the Laws of 1899).

The conclusions which Mr. Kenneson reaches are these:

(1) The purpose of the statute in question is simply to make illegal and criminal such contracts, agreements, arrangements, combinations as had, previous to the statute, been dealt with by the common law, and treated by it as against public policy, and, therefore, non-enforcible by the courts.

(2) The contracts, agreements, arrangements or combinations declared by Section I of the statute to be against public policy, illegal and void, are all resolvable into contracts, agreements, arrangements or combinations in restraint of trade or commerce.

(3) The contract, agreement, arrangement or combination aimed at by Section I of this statute is a contract, agreement, arrangement or combination whereby the parties thereto by means of the contract, agreement, arrangement or combination voluntarily impose upon themselves a restraint which disables them from competing in some trade or industry with other parties to the same contract agreement, arrangements or combination.

The restraint in all the contracts, agreements, arrangements or combinations aimed at by this statute is a voluntary restraint. It is imposed by the contract, agreement, arrangement or combination itself. It is imposed upon parties to the contract, agreement, arrangement or combination and not upon persons not parties thereto, and it is self-imposed upon such parties by their entering into the contract, agreement, arrangement or combination.

AMBROSE TIGHE, discussing "The Theory and the Law of Waterworks Securities," in the Yale Law Review for February, says of the most recent cases dealing with "exclusive" franchise and municipal contract:

Together they settle the law for the pres ent in this fashion: If a city undertakes, by ordinance or resolution, to repudiate a contract with a private water company, the ordinance or resolution is a legislative act, and, if alleged to impair the obligations of the contract, the controversy is one for the Federal courts, and in the Federal courts the exclusive features of a franchise do not make it void, and an agreement to take water for a term of years is not necessarily beyond the city's powers, because in its making the city exercises its business and not its governmental functions.

WILLIAM MARTIN contributes to The Law Quarterly Review for January an interesting discussion of the subject of "Treasure Trove," in the course of which he says:

In June, 1903, Mr. Justice Farwell gave judgment in the case of the Attorney-General v. The Trustees of the British Museum (1903) 2 Ch. 598. He decided that certain gold ornaments, and other objects, which, turned up by the plough in Ireland, had reached the British Museum, were treasure trove. . . .

In the British Museum case, Mr. Justice Farwell chose for his definition of treasure trove that given in Chitty on The Prerogatives of the Crown, viz.

"Treasure trove, is where any gold or silver in coin, plate, or bullion, is found concealed in a house, or in the earth, or other private place, the owner thereof being unknown" (p. 152).

This is substantially Coke's definition, which runs:

"Treasure trove is when any gold or silver, in coin, plate or bullion hath been of ancient time hidden, wheresoever it be found, whereof no person can prove any property" (3 Inst. 132). . .

A scrutiny of the authorities makes it also clear that, for treasure trove to obtain, there

must have been neither an abandonment by the true owner, nor an accidental loss, conditions ordinarily expressed by the statement that the treasure must have been "hidden." . .

From the present-day point of view, and dealing with the matter from the aspect of the Crown, we may say that if the discovered treasure has not been hidden-whatever that may mean it is not specifically treasure

trove.

IN The Law Students' Helper for February Lindsey Russell, writing of "Solicitors or the Lower Branch of the Legal Profession in Great Britain," says:

In London in the profession next to the words "fee" we hear the word "brief" more frequently than any other. The solicitor briefs the barrister with the amount of the retainer and refresher marked on the back. Before determining the amount he is willing to allow he sometimes consults with the opposing solicitors. The barrister's clerk, who does the "huggling" accepts or regrets, it being infra dig. for the barrister to even discuss fees, and for his services in this respect and in looking up law, the clerk receives 12 per cent. or thereabouts of the fee. The barrister does not know the client and looks to the solicitor for payment of his fee though he is without remedy for its enforcement. Sometimes he consults with his client as to the junior and leader to employ, but usually a firm has one or two junior counsels to whom its business regularly goes and between whom there is an understanding, a species of contract not recognized legally or professionally, but when the question arises of employing leading counsel, and one is obtained in every case, the peculiar fitness of the barrister to that particular case is carefully considered. . . .

If a solicitor himself takes trouble to at

tend an appointment before a judge in chambers, he receives perhaps after waiting some time, a fee of 6s. 8d. If he instructs counsel to attend and is represented by a junior clerk, his fee is the same, and he receives several further fees for copies of documents and atten lances on counsel. The usual items in a bill are 3s. 6d., 6s. 8d., 13s. 4d., I guinea.

The price to be paid for services is fixed by law, every action subject to judicial appraisal, and the solicitor must deliver to client an itemized statement of what he has done and wait a month before he can compel payment.

Notwithstanding all of these restrictions. and red tape, solicitors and their clerks are adepts in the art of running up bills. They charge for each telephone message, for every letter written and at the completion of any work will manage to turn out an aggregate charge that would do credit or discredit to a New York lawyer, according to the client's point of view.

IN concluding an article, in The Law Magazine and Review for February, entitled "Roman Law in English Decisions," which is "a short historical account of the citation of Roman law texts in arguments and decis ions on points of English law," James Williams says:

In the United States, perhaps the most notable case was the great Rhode Island constitutional decision, Trevett v. Weeden (1786), the earliest in which a State law was held unconstitutional. There the Roman principles of mandatum were applied to the powers of a State Legislature. In general, except perhaps in the Louisiana Courts before the recent constitutional amendments in that State, the American judges seem less inclined than their English colleagues to cite Roman law authorities, though both Story and Kent, to mention no other names, were learned in the Roman system.

The

In United States ex rel. Turner v. Williams, 126 Federal Reporter 253, the exclusion of the English anarchist Turner from the United States under the Immigration Act of March 3, 1903 (32 Stat. 1214, U. S. Comp. St. Supp. 1903, p. 172), is reviewed. The court first holds that the determination of the board of special inquiry that Turner was an anarchist cannot be reviewed. contention was that the exclusion act was unconstitutional because it infringed Article I of the constitutional amendments providing that Congress shall make no law prohibiting the free exercise of religion, or abridging the freedom of speech. The court says that it is difficult to understand on what theory the exclusion of an alien anarchist is a prohibition of the free exercise of religion, and as to abridging speech, that applies only to the speech of persons in the United States, and has no bearing on the admission of aliens. Ekiu's Case, 142 U. S. 657. 12 Supreme Court Reporter 336, 35 L. Ed. 1146, is relied on as authority.

AUTOMOBILES. (USE OF HIGHWAYS-EXCESSIVE

SPEED-NEGLIGENCE.)

KENTUCKY COURT OF APPEALS.

In Shinkle . McCullogh, 77 Southwestern Reporter 196, the right of automobiles on public highways is discussed. The case was a damage suit arising from the frightening of plaintiff's horse by an automobile driven at high speed and emitting loud noises. The court says: "While automobiles are a lawful means of conveyance, and

have equal rights upon the public roads with horses and carriages, their use should be accompanied with that degree of prudence in management, and consideration for the rights of others which is consistent with their safety. If, as the jury found by the verdict, appellant knew, or could have known by the exercise of ordinary care, that the machine in his possession and under his control had so far excited appellee's horse as to render him dangerous and unmanageable, it was his duty to have stopped his automobile and taken such other steps for appellee's safety as ordinary prudence might suggest."

BAGGAGE.

(LOSS-NEGLIGENCE.)

NEW YORK SUPREME COURT.

Tewes sued the North German Lloyd Steamship Company for the loss of his baggage. The case is reported in 85 New York Supplement, page 994. A trunk was delivered to the company to be carried to Europe on a steamer on which plaintiff had engaged passage, but it was allowed to remain on the dock, and two days after the steamer sailed, was burned. Plaintiff's ticket contained a provision limiting the liability for loss of baggage to fifty dollars, unless the value in excess should be declared and freight paid thereon. This is held binding on the plaintiff, citing: Steers . Liverpool, N. Y. & P. S. Co., 57 N. Y. 1, 15 Am. Rep. 453; Zimmer 7. N. Y. C. & H. R. R. Co., 137 N. Y. 460, 33 Northeastern 642. But the court says that by the defendant's neglect it lost the benefit of this provision and made itself subject to the full liability of a common carrier. The loss is traced back from the immediate cause to the first cause, to wit: The negli-. gence or breach of contract in leaving the

trunk on the dock, instead of loading it on the steamer, and there was no clause in the contract making the limited liability cover the case of negligence. The court cites: Michaels v. N. Y. C. R. Co., 30 N. Y. 564, 86 Am. Dec. 415; Read v. Spaulding, 30 N. Y. 630, 86 Am. Dec. 426; Maghee v. Camden & A. R. Co., 45 N. Y. 514, 6 Am. Rep. 124: Condict v. Grand Trunk R. Co., 54 N. Y. 500; Rawson v. Holland, 59 N. Y. 611, 17 Am. Rep. 394; London & L. F. Ins. Co. v. Rome, W. & O. R. Co., 144 N. Y. 200, 39 Northeastern 79, 43 Am. St. Rep. 752.

BRIBERY.

(CITY OFFICER-SCOPE OF AUTHORITY -VALIDITY OF ORDINANCE.)

MISSOURI SUPREME COURT.

State v. Butler, 77 Southwestern Reporter 560, chronicles the successful appeal of the notorious Edward Butler from a conviction of an attempt to bribe a member of the Board of Health of St. Louis. The charter of St. Louis required all contracts to be let by the board of public improvements, and on this account an ordinance placing power in the Board of Health to contract for the removal of garbage, is held a nullity, and is also held not to affect the case because not signed by the mayor when Butler's attempt to bribe was made. It follows from this that the Board of Health had no power to let a contract for the removal of garbage, and Butler, in endeavoring to secure such a contract by the offer of a bribe, is in the position of one attempting to bribe an officer to do something which he has no power to do. This, the Supreme Court declares, is not a violation of Rev. St. 1899, Sections 2084, 2089, providing in substance, that every person who shall offer to give any money to any public officer of a city to influence his vote, ctc., on any question "which may by law be brought before him in his official capacity," shall be guilty of an attempt to bribe. "How," says the court, "can an officer be influenced to act when there is no law requiring him to do so and no power under the law authorizing him to act? It may be said that it was thought the power existed

and there should be a conviction of bribery or attempted bribery. So it may be said that a witness who swears falsely as to an immaterial matter. . . ought to be convicted of perjury because he thought it was material, but what court would for a moment hold that a defendant could be convicted for swearing falsely as to matters immaterial to the legitimate subject of inquiry?" In re Yee Gee, 85 Federal Reporter 145; State v. Howard, 137 Mo. 288, 38 Southwestern Reporter 908; Collins v. State, 25 Tex. Supp. 204; Gunning v. People, 59 Northeastern Reporter 494, 82 Am. St. Rep. 433; United States v. Boyer, 85 Federal Reporter 426; United States v. Gibson, 47 Federal Reporter 833; Commonwealth v. Reese, 29 Southwestern Reporter 352; Kitby v. State, 31 Atlantic Reporter 213; People v. Purley, 2 Cal. 564; Newman v. State, 23 Southeastern Reporter 831; Ruffin v. State, 38 Southwestern Reporter 169, are all cited in support of this doctrine, while a number of cases are distinguished or held inapplicable. Several minor decisions as to the construction of statutes and ordinances are made, among them that criminal statutes must be strictly construed, and that if there is a fair doubt concerning the existence of a charter power, it will be resolved against the city.

This case has been productive of wide criticism of the court, in part based on the view that the Board of Health would necessarily have to determine its power under the ordinance, and, therefore, pass on the question of its validity, so that the matter was one which would come before the members in their official capacity. This is the holding in State v. Ellis, 33 N. J. Law 103, discussed in the opinion. Another and more emphatic criticism is directed toward the holding that the fact that the ordinance had not been signed by the mayor when Butler's attempt to bribe was made, deprived the Board of Health at that time of any official cognizance of the awarding of the garbage conUnder this rule all that would be necessary to avoid criminal liability for brib

tract.