management of their internal affairs by the States. Nevertheless, the highest Federal court has just passed upon the qualifications of an aspi rant for the office of governor of Nebraska.

The case arose upon a provision in the State constitution to the effect that the governor should be a citizen of the United States. The respondent claimed to be a naturalized citizen of the United States, and to have been duly elected governor. The Supreme Court of the State decided against him,' on the ground that he had never become a citizen. Upon writ of error the Supreme Court of the United States decided for the respondent, reversing the decision of the State court. Its jurisdiction is founded upon the fact that here was a decision of a State court adverse to a right claimed under the laws of the United States.

It may be doubted whether the court has not assumed a jurisdiction which Congress did not give it, and, indeed, could not give it. The right to be governor of a State is not a privilege of a citizen of the United States as such, and is essentially outside the sphere of Federal concern. Nor is it made a Federal question by a State law requiring that the governor shall be a citizen of the United States. The phrase "citizen of the United States," as used in the State constitution, is merely a mode of expression. The State might have imposed the same qualifications in other terms, and confessedly there would have been no question for the Federal courts. Surely Federal jurisdiction depends upon substance rather than form, and cannot be made to hang upon the phrase which the legislature uses. Suppose a State imposes a penalty for selling liquor without a license from the United States, and the State court has found that the defendant had no such license. Is he entitled to have his case reviewed by the Federal courts? When a State adopts a Federal law, or when it legislates in terms of Federal rights or privi leges or status, it there makes the law its own. The law is none the less a State law because it is expressed in terms of Federal law. It is submitted that the decision of the court would have been sounder if it had been to the effect that where a question arises under a United States law which comes into the case only because brought in by a State law founded upon it, there the question does not involve the laws of the United States. Mr. Justice Field dissents, upon the ground set forth above, and points out that Missouri v. Andriano, 138 U. S. 496, the only authority which the majority cite, contained only a dictum on this subject.

EXTENT OF LEGISLATIVE POWER UNDER THE DOCTRINE OF THE GRANGER CASES. - The Supreme Court of the United States has again affirmed the doctrine of the Granger cases. The actual decision 2 is that a law of New York prescribing a maximum rate of charges for grain elevators in the city of Buffalo is valid. The case is, indeed, almost an exact repetition of Munn v. Illinois, and, as in that case, there is a strong dissent denying the general right of the Legislature to regulate a purely private business, though "clothed with a public interest." There is only one respect in which the case really adds anything to what has gone before, and that is the interpretation which Mr. Justice Blatchford, writing the opinion of the court, puts upon the decision of 2 Budd v. State of New York, 12 Sup. Ct. Rep. 648.

148 N. W. Rep. 739.

8 94 U. S. 113.

the case of Chicago etc. R. R. Co. v. Minnesota, 134 U. S. 418. He says, speaking of that case: "That was a very different case from the one under the Statute of New York in question here; for in this instance the rate of charges is fixed directly by the Legislature. What was said in

the opinion in 134 U. S. as to the question of the reasonableness of the rate of charge being one for judicial investigation, had no reference to a case where the rates are prescribed directly by the Legislature." It is evident from this language that the learned Justice considers that the case of Chicago, etc. R. R. Co. v. Minnesota decided merely that the Legislature could not authorize a commission to settle finally maximum rates for railroad charges which should not be examinable in the courts on the point of reasonableness, and that it did not decide that the Legislature itself had not the power so to establish rates. With all due deference, it is difficult to see how this explanation is arrived at. There was certainly in that case an attempt by the Legislature at least that was the interpretation put upon the Statute by the State court, and adopted by the Supreme Court to clothe the commission with absolute power finally and conclusively to establish railroad rates. If the Legislature itself possessed such power, and could delegate it to a commission, it seems difficult to say that it did not do so. And as there was no intimation in the decision of the case that anything turned on the power to delegate, which seemed to have been admitted, -the conclusion seems irresistible that the court must have held that the Legislature did not itself have this final power over rates which it could delegate. And this, without question, was what the minority of the court thought the decision to be. This point, however, the court in the present case intimates to be still open; for the opinion says: "In the cases before us the records do not show that the charges fixed by the Statute are unreasonable, or that property has been taken without due process of law, or that there has been any denial of the equal protection of the laws, even if under any circumstances we could determine that the maximum rate fixed by the Legislature was unreasonable."

Judge Blatchford also adverts to the fact that in the Minnesota case the Act of the Legislature was passed under a constitution "which provided that all corporations, being common carriers, shall be bound to carry on 'equal and reasonable terms.' It would seem that this circumstance was immaterial. In the absence of such constitutional provision, it is conceded that the Legislature has power to regulate railroad charges, under its general police power. Now, all regulations made in the exercise of this legislative power are subject to the restriction that they be reasonable and proper for the purpose in view. Courts have frequently pronounced such laws invalid upon the sole ground that they were unreasonable.1 And there would seem to be no reason why a law establishing railroad rates should not be subject to the same test as any other police regulation. Indeed, there can hardly be any branch of legislation which requires such close scrutiny from the courts on the score of reasonableness. Of course it is not meant by this that the court is to determine upon the validity of such a law according to its own notion of what is reasonable. It was determined by the Granger cases that it is primarily for the Legislature to say what rates shall be reasonable, and the court has no right nor power to substitute its own opinion for

1 See Toledo Co. v. Jacksonville, 66 Ill. 37; Ohio Co. v. Lackey, 78 Ill. 55.

that of the Legislature. But the court has the right and duty here, as in all other cases of police regulations, to examine the determination of the Legislature, and to declare it invalid if it goes beyond the limits of rationality. When it was held that the Legislature had the power to establish reasonable rates for railroad charges, it did not follow that it had power to fix any rate it pleased, reasonable or beyond the bounds of reason. And the question whether or not the Legislature had exceeded its power still remained for the court. It was supposed heretofore that the Minnesota case had established this very point. But the dictum in Budd v. State of New York, quoted above, at least throws doubt upon the subject.

RECENT CASES.

AGENCY-NEGLIGENCE OF VICE-PRINCIPAL. A foreman in charge of laborers removing the roof of a railroad company's building is the vice-principal of the company, and not a fellow-servant of the laborers. Sullivan v. Hannibal & St. J. Ry. Co., 17 Š. W. Rep. 748 (Mo.).

BILLS AND NOTES CO-MAKER AS SURETY RATIFICATION OF MATERIAL ALTERATION. — Defendant, as surety for one T., signed a note as co-maker, payable to plaintiff. Afterwards, without the knowledge of defendant, one M. signed the note as an additional surety. Defendant heard subsequently of this alteration in the note, and assented to it, but received no new consideration for his assent. Held, in an action on the note, that this assent was a valid ratification, and bound him. Owens v. Tague et al., 29 N. E. Rep. 784 (Ind.).

There is very little authority on this point. In favor of the principal case are 13 Iowa 567 and 21 Ill. 128 (semble); cf. also Brandt on Suretyship, § 384. But it is hard to see how the court reconcile this case with their previous language in Henry v. Heeb, 114 Ind. 275, where it was said that a forged signature on a note purporting to bind one H. as surety, could not be effectually ratified without a new consideration; cf. Daniels on Negot. Inst., §§ 1351, 1352 a. And on principle the case cannot be supported. The alteration in the note by adding a new party, being material, was a real and not a personal defence; it made the note void. In default of an implied agency, or of an estoppel, none of the original parties could revive his liability without a new valid contract.

Defence of breach

BILLS AND NOTES - FAILURE OF CONSIDERATION NOTICE. of warranty is of no avail against indorsee for value of a negotiable note, before due, who knew that the consideration for which the note was given was a jack, warranted to be a sure foal-getter, but having no knowledge until after transfer that the warranty failed. Rublee v. Davis, 51 N. W. Rep. 135 (Neb.).

BILLS AND NOTES-STATUTE OF LIMITATIONS. S. made a note payable on demand to K., or order, dated Oct. 9, 1879. K. indorsed the note to the N. Bank as collateral security, and later it was indorsed to the plaintiff with K.'s consent as collateral for a debt due by K. to the plaintiff. S., the maker, not knowing of the transfer of the note by K., paid the note to K. by instalments, beginning in 1885 and ending in 1889. Plaintiff notified S. that he was the holder of the note, and S. pleaded the Statute of Limitations. The plaintiff relied on a payment in November, 1885, which K. had turned over to him, to defeat the plea. Held, an acknowledgment to a third party is not sufficient to take a debt out of the Statute. Here, as the defendant did not suppose that K. was the plaintiff's agent to receive this payment (as in fact he was not), the payment to K. was not an acknowledgment which would take the case out of the Statute. The Stamford, S., and B. Banking Co., Ld., v. Smith, 92 L. T. 273 [Ct. of App. (Eng.)]

This decision seems to be inconsistent with the general English rule on the subject as laid down in Byles on Bills (14th ed.), p. 372. The learned author there refers to several cases in which an acknowledgment, or part payment of the debt by the obligor

to some party to the paper other than the holder, has been held to take the bill or note out of the Statute. In Clark v. Hooper, 10 Bing. 480, Chief Justice Tindal said that the effect of part payment to third persons (by reason of obligor's mistake as to who was his creditor), was as much an acknowledgment of the debt as if the debtor had written a letter saying that he would pay any one who could prove himself the rightful payee.

CIVIL SERVICE EXAMINATIONS - PROFESSIONAL EXPERTS. — The board of visiting physicians of a hospital are professional experts, and not employees, and are not, therefore, within the scope of a law requiring the latter to submit to competitive examination prior to appointment. Commonwealth v. Fetter, 23 Atl. Rep. 568 (Pa.). CONSTITUTIONAL LAW

FOURTEENTH AMENDMENT COVENANT PREJUDICIAL

TO CHINESE. A covenant in a deed not to convey or lease land to a Chinaman is void, as contrary to the public policy of the Government, in contravention of its treaty with China, and in violation of the Fourteenth Amendment of the Constitution, and is not enforceable in equity. Gandolfo v. Hartman, 49 Fed. Rep. 181 (Cal.).

That such a contract is contrary to the principles of the Constitution and to sound public policy, and that it should not be enforced by a court of equity, may be admitted. But while recognizing the correctness of the decision, we cannot accede to the reasoning of the learned judge. He considers this a violation of the Fourteenth Amendment, and says: “Any result inhibited by the Constitution can no more be accomplished by contract of individual citizens than by legislation, and the courts should no more enforce the one than the other." We cannot agree that the Fourteenth Amendment was aimed at individuals. See Civil Rights Cases, 109 U. S. 3. Nor do we see how the treaty with China helps the case. The true reason for the decision, and the one that undoubtedly weighed with the court, is that the contract is so opposed to public policy that equity should refuse specific performance.

CONSTITUTIONAL LAW REPEAL BY SUBSEQUENT STATUTE. — Defendant was convicted of murder in the first degree, and sentenced in 1888. In 1891 a law was passed providing that executions should take place in the State's prison. Held, that the statute was ex post facto with regard to defendant, as applying a higher degree of punishment, and that as the law was intended to apply to all cases of murder, past as well as future, it was wholly unconstitutional and void, and the old law was still in force. People v. McNulty, 28 Pac. Rep. 816 (Cal.).

This case is the first one to hold that the old law was not repealed under such circumstances. The result reached is desirable, but it may be doubted how far the case will be followed.

MUNICIPAL TAX ON TUG

CONSTITUTIONAL LAW-INTERSTATE COMMERCE BOATS. A city ordinance of Chicago prohibits the employment of tug-boats in the river and harbor except when licensed by the city. Held, that this ordinance is not invalid, although the tug-boats are also licensed by the United States for the coasting trade, and although they are engaged in towing vessels themselves engaged in interstate commerce. The court say that the tugs are mainly used on the river, within the corporate limits of Chicago; that the navigation of the river has been improved by the city at its own expense; and that the license fee should be considered in the light of a toll for the use of the river in its improved condition. Harmon v. City of Chicago, 29 N. E. Rep. 732 (Ill.).

CONSTITUTIONAL LAW - POLICE POWER - MONOPOLIES. A city ordinance gave the plaintiff the exclusive right to remove from the city all such dead animals as should not be removed by the owner in person, or by his immediate servant, within twelve hours after the death thereof. Held, a valid exercise of the police power, and the defendant will be restrained from removing any such animals. Nat. Fertilizer Co. v. Lambert, 48 Fed. Rep. 458 (Cal.).

CONSTITUTIONAL LAW - UNITED STATES SUPREME COURT FOLLOWING STATE DECISIONS TERRITORY BECOMING A STATE. When pending an appeal from a Territorial court to the United States Supreme Court upon a question of local law, the Territory is admitted as a State, and the State Supreme Court thereof, in another case, reaches an opposite conclusion upon the same question, the latter decision will be followed by the Supreme Court of the United States. Stutsman County, Dak. v. Wallace, 12 Sup. Ct. Rep. 227.

CORPORATIONS — CITIZENSHIP OF.-A corporation chartered by the State of Missouri was afterwards chartered by Arkansas. Held, the corporation may still be considered as a citizen of Missouri, and when sued by a citizen of Arkansas in the State

courts may have the suit removed to the Federal courts. Stephens v. St. Louis & S. F. R. Co., 47 Fed. Rep. 530 (Ark.).

CONTRACTS-PUBLIC POLICY RESTRAINT OF TRADE. Certain stenographers, being only a small proportion of those engaged in the business in Chicago, formed an association to promote uniform rates. The members were allowed to cut prices against outsiders, but not among themselves. Held, in an action by one member against another for underbidding him, that the agreement was in restraint of trade and void. More v. Bennett, 29 N. E. Rep. 889 (Ill.).

The court distinguishes an agreement by the vendor of the good-will of a business not to interfere with his vendee by competition, which is enforceable as being in partial restraint of trade only, from all contracts, like the one above, which tend to stifle competition in general, no matter how limited their actual scope.

CORPORATIONS- BANKS LIABILITY OF DIRECTORS. -The director of a bank whose services are gratuitous and whose duty it is to pass upon the transactions of the bank, does not owe to the creditors of the bank such care as a reasonable man exercises in the conduct of his own business, but is amenable only for fraud or for such negligence as amounts to fraud. Sweutzel v. Penn. Bank, 23 Atl. Rep. 405 (Pa.). CORPORATIONS CONSOLIDATION FOREIGN AND DOMESTIC CORPORATIONS ORGANIZATION TAX. Laws 1869, c. 917, provide for the consolidation of corporations. Laws 1886, c. 431, require the payment of an organization tax from corporations incorporated under the laws of New York. The appellant was composed of domestic and foreign corporations consolidated under the first-mentioned laws. Held, that this was not a new incorporation under the laws of New York which would require the payment of the organization tax. People v. New York C. & St. L. R. Co., 29 N. E. Rep. 959 (N. Y.).

While agreeing that the consolidation of domestic corporations under laws of 1869 would be a new incorporation, the court relied on the fact that here the consolidation was by foreign and domestic corporations. To effect the consolidation, the New York Statute alone would not be sufficient; it could be done only by the consent of all the States which had chartered the corporations proposing to consolidate. The new corporation then, arising from the consolidation, would not have been "incorporated by or under any general or special law of this State," within laws of 1886, c. 147.

CRIMINAL LAW — ATTEMPT TO COMMIT FELONY. In a prosecution for an attempt to commit larceny, it appeared that the prisoners had put their hands into the pockets of certain persons, but there was no evidence that said persons had any property which the prisoners could have stolen. Held, it is not necessary, in an indictment for an attempt to commit a felony, to prove that the attempt would have succeeded if the attempt had not been frustrated; i. e., to prove that larceny was possible here. Reg. v. Ring, 92 L. T. 296 [Cr. Cas. Res. (Eng.)].

This case overrules the former English doctrine as laid down in Reg. v. Collins, 9 Cox C. C. 497. The rule in Reg. v. Ring is that laid down in the Massachusetts case of Com. v. M' Donald, 5 Cush. 365.

ELECTRICITY PRODUCTION OF, A MANUFACTURE.-A company engaged in producing electricity and supplying the same to its customers for lighting purposes is exempt from taxation under a New York statute which applies to "manufacturing corporations." People ex rel. Brush Electric Illuminating Co. v. Wemple, Comptroller, 29 N. E. Rep. 1002 (N. Y.).

See a dictum in accord in 22 Atl. Rep. 840, where the decision, turning on the construction of special Pennsylvania Statutes, went the other way. The same general line of argument might eventually lead the courts to say that tapping an electric wire was common law larceny.

EMINENT DOMAIN DAMAGES. Where a railroad company, having the power of eminent domain, enters upon land without the consent of the landowner, and without complying with the law regulating the exercise of such power, and constructs a railroad track thereon, held, that the value of the improvements thus put by the company on the land cannot be included in estimating the damage sustained by the landowner, in proceedings subsequently instituted under such law by the company in its legal successor, having similar power, to condemn the land, or an easement therein, to the company's use; and this, whether the company has been ousted from the former possession or not. Jacksonville, T. & K. W. Ry. Co. v. Adams, 10 So. Rep. 465 (Fla.).

The principle of this case, which is one of first impression in Florida, is affirmed in Mississippi, Michigan, Iowa, Illinois, Minnesota, Wisconsin, Oregon, Pennsylvania, and Alabama. The few cases which hold the contrary proceed upon a strict application of the rule of the common law, established when railroads were unknown, that