insurance policy shall contain any provision for settlement for less than the amounts insured on the face of the policy, plus dividends and less indebtedness and premiums, a policy cannot contain the prohibited provisions, though issued on the industrial plan in small amounts and for weekly or bi-weekly premiums.-First Texas State Ins. Co. v. Smalley, Tex., 228 S. W. 550.

31. Regular Army.-The term "regular army," as used in an insurance certificate providing 40 per cent, only of claim should be paid if insured should engage in any of the following occupations, viz., railway switchman, soldier in regular army in time of war, etc., meant a soldier in the regular army of any country, the term "regular army" not being construable with reference to the congressional classification of the military organizations of the United States.-Huntington v. Fraternal Reserve Ass'n of Oshkosh, Wis., 181 N. W. 819.

32. Robbery in Locked Vault.-An insurance policy covering loss by robbery of money and securities within the safe or vault insured, by compelling, under threat of personal violence, an officer of the assured to unlock the safe or vault, covers a robbery committed by taking securities from an unlocked safe, which was within a locked vault, where the robbers compelled the cashier to open the vault, although the loss could not have been covered, if the vault had also been unlocked.-Mer Rouge State Bank v. Employers' Liability Assur. Co., U. S. C. C. A., 270 Fed. 567.

33. Intoxicating Liquors-Court Cannot Say 2.75 Per Cent. Liquor is Intoxicating.-The court cannot say as a matter of law that beverages containing not more than 2.75 per cent. alcohol by weight, or less, is intoxicating, and therefore cannot hold that the Walker Act of New York, permitting the sale of such beverages, violates the Eighteenth Amendment to the Constitution.-Ex parte Finegan, U. S. D. C., 270 Fed. 665.

34. Medicinal Purposes.-Defendant could not be convicted of manufacturing spirituous liquor with more than 1 per cent. alcohol under the Dean Law, if he manufactured the liquor for medicinal purposes, notwithstanding his failure to secure a permit from the comptroller of public accounts or to comply with the other conditions specified in sections 7-11, since such failure did not make him guilty of manufacturing liquor for an improper purpose.-Burciago v. State, Tex., 228 S. W. 563.

a

35. State Law.-Court did not err, in prosecution for violation of the prohibition law, in charging the penalty under the state law, instead of the punishment as prescribed in the Volstead Act of Congress.-Reece v. State, Tex., 228 S. W. 562.

36. Joint Adventures-Right of Action.

Complaint alleging contract between plaintiff and defendant, whereby defendant agreed to. pay plaintiff one-half of any commission which might be paid to it by a certain corporation for negotiating the purchase of steamships by such corporation, that plaintiff and defendant thereafter procured the purchase of three steamships by such corporation, that such corporation paid the defendant 5 per cent. of the purchase price as commission, and that defendant refused to pay plaintiff one-half thereof, held to show a joint adventure, entitling plaintiff to an accounting, and not merely a contract of employment.-Kraemer v. World-Wide Trading Co., N. Y., 187 N. Y. S. 18.

37. Landlord and Tenant-Covenant Against Assignment of Lease.-A covenant against assignment or sub-letting of a lease without the written consent of the lessor is not breached by an assignment by operation of law in the event of the bankruptcy of the lessee.-In Prudential Lithograph Co., U. S. C. C. A., 270 Fed. 469.

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38. Order of City Department.-Assignee of lease providing that the tenant at her own expense should fully satisfy all muincipal and United States regulations, laws, and ordinances affecting the demised premises, who was notified of an order of the department of water supply, gas, and electricity of the city of New York, requiring the removal of violations in elec

trical equipment in the building, and who was in occupation of the premises and at all times advised of the repairs being made by the lessors to comply with the order, and who did not object, became liable to the lessors for the expense incurred by them in removing the violations specified in the order, but the lessee, who never received notice of the order or the removal of the violations, is not liable for such expense. United States Trust Co. v. Blake, N. Y., 187 N. Y. S. 7.

39. Libel and Slander-Release From Liability. Request by ex-employee held to release employer from liability on account of information furnished.-Burdett v. Hines, Miss., 87 So. 470.

.40. Life Estates-Improvements.-While as a general rule a life tenant is not entitled to compensation from the remaindermen for the enhancement of the property by his improvements, a life tenant, or one holding under him, who was in possession of the property with a bona fide belief he owned the fee, can recover for improvements thereon which enhanced the value of the remainder.-Harriett v. Harriett, N. C., 106 S. E. 221.

41. Limitation of Actions-Laches May Be Invoked Against Government.-Where the bar of limitations under Act March 3, 1891 (Comp. St. § 4992), would be effective against a suit to cancel patents to coal lands, unles the equitable principle suspending the running of limitations in case of fraud until discovery of the fraud be applied, the doctrine of laches in discovering the fraud, which is an inherent ingredient of such equitable principle, may be invoked against the United States.-United States v. Diamond Coal & Coke Co., U. S. S. C., 41 Sup. Ct. 335.

42. Malicious Prosecution-Liability of Witness.-In an action for malicious prosecution brought against a mother and her son, where it appeared that the prosecution against plaintiff for fraudulently obtaining money from the son was instituted by the mother, and there was no evidence that the son aided or encouraged her to begin the prosecution, though he was present when she threatened plaintiff with prosecution, and though he testified as a witness when duly summoned, a judgment against the son must be set aside.-McNamara v. Pabst, Md., 112 Atl. 812.

43. Master and Servant-Course of Employment.-Cleaner employed by manufacturing company at its mill, also a member of the volunteer fire department of the city receiving from the organization a salary of $65 a year, permitted by his employing company to leave his work for a fire without loss of pay, held not to have suffered an injury arising out of and in the course of his employment to entitle him to compensation under the Compensation Act, when answering fire alarm.-White v. Eastern Mfg. Co., Me., 112 Atl. 841.

44.--Injury While Demonstrating Ability.An applicant for employment, who was requested by the proposed employer to demonstrate his ability to operate a machine before being employed, and who was injured while preparing the machine for operation, had not yet become an employee, and is not entitled to compensation under the Workmen's Compensation Law.-Lederson v. Cassidy & Dorfman, N. Y., 187 N. Y. S. 50.

45. Interstate Commerce. The plaintiff's intestate, an engineer, was taking a number of empty cars from a point on a spur line to a yard on the main line in the same state, where they were to be put upon a siding and used where convenience required. They had no present destination. It is held that the deceased was not employed in "interstate commerce" and was not within the provisions of the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665).-Kraemer v. Chicago & N. W. Ry. Co., Minn., 181 N. W. 847.

46. Res Ipsa Loquitur.-In an action under the federal Employers' Liability Act (U. S. Comp. St. $8 8657-8665) for injuries to a railroad's employee from a cave-in, the doctrine of res ipsa loquitur has no application because of the relation of master and servant between the parties and the fact that the circumstances and the accident in no wise excluded all defen

sive inferences.-See v. Chicago, B. & Q. R. Co., Mo., 228 S. W. 518.

47.-Safe Vehicles.-A packing company employed a transfer company to convey its employees to and from their work, and directed and controlled the transportation. Held that, having assumed the responsibility of the transportation of its employees, the company owed them the duty to provide vehicles that were reasonably safe, and the obligation to see that the drivers should exercise reasonable care in operating them.-Phillips v. Armour & Co., Kan., 196 Pac. 245.

48. Mortgages-Constructive Notice. Under a deed of trust covering land divided into lots, and providing that the mortgagor might sell lots by warranty deed, and that the trustee would execute quitclaim deeds on deposit of $50 for each lot, one to whom the trustee conveyed under power of sale on default was not charged with constructive notice of the equities of those who had purchased lots on contract, and who had neither a deed nor a bond for title on record. Shehane v. Greer, Ga., 106 S. E. 83.

49. Municipal Corporations-Claims of Materialmen.-Interest on claims of materialmen, who furnished material for work on the Boston Public Library, held to run as against the contractor's surety from filing of their intervening petitions, and not from filing of their sworn statements of claim with the trustees of the library.-Otis Elevator Co. v. Long, Mass., 130 N. E. 265.

50. Pier Site District.-The bonds issued by the state pier site district incorporated under Sp. Laws 1919, c. 117, which includes the cities of Portland and South Portland, are not debts of the city of South Portland, within the meaning of Const. Amend. 34, limiting the indebtedness of the city to 5 per cent. of its valuation, though such bonds are to be paid in part by taxes levied on the property within the city, since the district is a municipal corporation distinct from the city.-Hamilton v. Portland State Pier Site Dist., Me.. 112 Atl. 836.

51.- Waste Steam.-Where a municipality, after devoting waste steam from its water and lighting plant to the heating of municipal buildings, discovered that there was a surplus, it might contract to supply private individuals with steam, although, of course, if a deficiency occurred, it could not be held liable, and such an agreement is not objectionable as ultra vires, but amounts to no more than the sale of an otherwise waste product.-N. E. Burkitt Motor Co. v. City of Stuart, Iowa, 181 N. W. 762.

52. Negligence-Licensees.-Boys bathing in a river below defendant's dam, where defendant owned the bed and banks of the stream, had no higher standing than that of licensee, where, at most, defendant passively acquiesced in such conduct by the boys.-Prondecka v. Turners Falls Power & Electric Co., Mass., 130 N. E. 386.

53. Parent and Child-Employment of Minor. -In an action by a father for injuries to his minor son, under and by reason of employment by defendant of the son in dangerous work without plaintiff's consent, an oral charge that, if it was brought home to plaintiff's knowledge that his son was working for defendant, and he did nothing, he thereby assented to the employment. held proper.-Allen v. Alger-Sullivan Lumber Co., Ala., 87 So. 442.

54. Physicians and Surgeons-No Relation of Master and Servant Between.-The relation of master and servant cannot exist between physicians and surgeons who are not X-ray specialists themselves and the X-ray specialist or roentgenologist whom they employ to assist them in the treatment and diagnosis of diseases, even though the X-ray specialist works at a hospital in the X-ray department established by the physicians and surgeons for such work.-Runyan v. Goodrum, Ark., 223 S. W. 397.

55. Railroads-Negligence.-A railroad is not liable for injuries to a pedestrian who, in seeking to cross tracks at a plank crossing, left the provided cement sidewalk on account of darkness and fog, stepped onto a triangular piece of ground belonging to the railroad and covered with cinders, and walked across it un

til he reached a stone retaining wall, the top of which was at the level of the cinder covered lot, and fell 15 feet into the bed of a creek, sustaining serious injuries. Hildebrand v. Hines, Pa., 112 Atl. 875.

56. Reformation of Instruments-Mistake in Deed. A purchaser of land who has knowledge of a mistake in the deed of his grantor, and of the true intent and design thereof, is not a bona fide purchaser for value, and stands in no better position than the original parties. The deed may be reformed as to him.-Stickley v. Thorn, W. Va., 106 S. E. 240.

57. Religious Societies-Mortgage of Realty. -Under Religious Corporations Law, § 5, the trustees of a religious corporation having a congregational form of government have no power to initiate proceedings to mortgage the real property of the corporation, without the consent of the members given by a majority vote at a meeting, or in some manner in accordance with legally adopted by-laws.-In re Beth Israel of Bronsville, N. Y., 187 N. Y. S. 36.

58. Removal of Causes-A State is Not a "Citizen."-In a controversy between a state and a citizen of another state, the federal court does not acquire jurisdiction to compel removal from the state court on the ground of diversity of citizenship, under U. S. Comp. St. § 1010, since a state is not a citizen.-People v. City of St. Louis, Ill., 130 N. E. 366.

59. Sales-Condition Precedent.-A provision of a contract of sale requiring the buyer to furnish the seller a bank guaranty was not performed by arranging with a bank to guarantee payment of a draft by the seller for the purchase price without actually furnishing the guaranty contracted for.-Newton v. Chemcraft Co., Ga., 106 S. E. 194.

60. Temporary Embargo.-Purchaser's request to withhold shipment of lumber because of temporary embargo held not to justify immediate cancellation.-Tallahatchie Lumber Co. v. Cecil Lumber Co., Miss., 87 So. 449.

61. Seamen-Measure of Damages. - Where seaman received injuries through accident, without fault of the ship, all he could recover, under a claim that employer had failed to furnish him with reasonably good medical attention by refusing to land at a certain port, was for the additional pain or suffering and injury that resulted from defendant's failure to furnish reasonable medical attendance.-Falk Thurlow, N. Y., 187 N. Y. S. 57.

V.

62. Telegraphs and Telephones-License Tax. -Where a telegraph company, whose franchise to use the streets of a city subjected it to further regulations, licensing, and taxation, paida license tax from 1903 to 1914, an allegation, in a suit to collect the tax for subsequent years, that the tax was paid through mistake and inadvertence of its clerical force, is not a sufficient explanation, without more.-Postal Telegraph-Cable Co. v. City of Fremont, U. S. S. C.. 41 Sup. 279.

63. War-Constructive Service.-That defendants were domiciled in Germany and Austria, and. owing to war between those countries and the United States, it was impossible to carry out the provisions of Chancery Act, § 12, as to constructive service by reason of noncommunication between the countries, will not affect the validity of a decree based on constructive service, for the presumption of notice is not rebuttable.-Chapman v. Northern Trust, Ill., 129 N. E. 836.

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64. Wills-Undue Influence.-Testator dispose of his estate according to his own judgment, if mentally capable of making a will and the will is not the product of undue influence. and the law will not render it nugatory because it disappoints entirely reasonable expectations of relatives.-Watson v. Young Women's Christian Assn., Md.. 112 Atl. 616.

65. Undue Influence. The fact that a brother of testator procured the attorney to write the will, procured the attesting witnesses, and excluded all persons from the room while the will was being written is not alone sufficient testimony of undue influence, fraud, or coercion on the part of the brother of the testator-Ward v. Ward, Miss., 87 So. 153.

Central Law Journal.

St. Louis, Mo., June 17, 1921.

RECALL OF JUDICIAL DECISION HELD TO BE UNCONSTITUTIONAL.

The Supreme Court of Colorado has rendered popular government a great service when it showed the inherent vice in a constitutional amendment adopted by the people of that state and certain other western states, providing for the recall of judicial

cisions. This so-called reform was at once the most dangerous and fantastical, as well as the most enticing and insidious, of all the radical changes which were a part of the great wave of reform of constitutional restrictions and limitations which swept over the country during the administrations. of Roosevelt, Taft and Wilson, until it was stopped by the World War which broke out in 1914.

This radical movement, so far as it concerned the great mass of voters, was a protest against the intrenchment of wealth and corporate privilege behind the Constitution. The indignation of the people was fanned into flame by ultra conservative decisions. of the Supreme Court, such as that in the Income Tax cases. Many new political parties and class alignments were the outgrowth of this intense activity of the poplar mind and feeling. The Progressive Party was the most conservative and the Non-Partisan League probably the most radical, of such parties. The Socialist Party took on new life and carried elections in many parts of the country. I. W. W. ism lifted its menacing head and sought to sink its poisonous fangs into the body politic. The popular mind was seething with impatience and new reforms were hailed with wild acclaim and discussed on farms and in factories and on street corners and at crossroads. It looked for a time after the close of the war that this era of radical change would be resumed, but economic changes

brought about by the war and the pressing needs of world recuperation and rehabilitation have had a sobering effect upon the people and a healthful reaction has set in which will no doubt make permanent all the good and get rid of all the bad that was in the program of the era of radicalism which has been ended, at least temporarily.

There can be no doubt, that, despite the unfortunate endorsement of Roosevelt, which, it is said he afterwards regretted and modified, no reform adopted during this period was more dangerous to the public welfare than the recall of judicial decisions. The recall of judges is conservatism itself compared with the ultimate effect upon our form of government of such a political device as the recall of judicial decisions. To transfer to the hustings, the intricate, delicate and difficult problems that arise out of the conflicts of human existence as well as the construction and application of laws and their adjustment to other laws and to the superior restrictions of federal and state constitutions is the height of political folly.

It is in the steadier and clearer light of the present period of calm reflection that the Supreme Court of Colorado is able to reach and render two decisions which a few years ago would have raised a storm of indignation all over the country. These decisions make it clear how impossible it is, from the standpoint of the Federal constitution, for a state statute to take away from nisi prius courts the power to pass on constitutional questions or to refer decisions on such questions to the people for decision. People v. Max (No. 9823, April 4, 1921), and People v. Western Union Tel. Co. (No. 9522, April 4, 1921).

The Telegraph Company Case involved the simple question of whether a nisi prius court could be prohibited from hearing and determining a Federal constitutional question. The case involved the enforcement of "The Anti-Coercion Act" of Colorado, prohibiting an employer from making it a

it. That right so given, can neither be taken away nor that duty abrogated by the State of Colorado, by constitutional provision or otherwise, and any attempt to do so is null and void. Such pretended constitutional inhibition is no part of the constitution of the State of Colorado, and the judge's oath binding him to the support and enforcement of that instrument has no relation to such void provisions."

The Max case, decided on the same day, extended the principle of the Telegraph Company Case to decisions invalidating acts of the legislature because contrary to the State Constitution. This result was reached by reliance on the familiar principle that where a separation of valid and invalid provisions of a statute cannot be made the whole act must be pronounced void. On this point the Court said:

"It is inconceivable that the people of Colorado would ever have enacted this law had they realized that in no event could it ever be applied further than to their own constitution, or that they would ever have considered the advisability of taking from their own courts the power to construe their own constitution had they realized that while the constitution of the United States stands they were impotent to deprive those same courts of power to construe that charter. The rule as to the divisibility of a constitutional provision, a portion of which is held void, is the same as that applied to a statute under similar conditions."

The Court also held the Amendment even as applying to cases involving the State Constitution to be contrary to the "due process" clause of the Federal Constitution. On this point the Court made the following observation:

"If an unconstitutional statute, creating a crime unknown to the common law, may be passed by the legislature; if a citizen may be put upon trial thereunder; if the trial court may be prohibited from hearing his plea that the statute violates the constitutional guaranties of his state; if, when this court has so held, that statute may be re-enacted by a bare majority of those voting thereon and the severest penalties be thereupon inflicted; then law has become a phantom and justice a dream, and constitu

tional guaranties of the sacredness of life, liberty and property,

"a tale

Told by an idiot, full of sound and fury,
Signifying nothing."

"It follows from what has hereinbefore been said that all those provisions of amended Sec. 1, of Art. VI of our state constitution which purport to furnish the plan and machinery for the nullification of the decisions of this court holding state laws, and city charters contrary to the state constitution are null and void and are not subject to the prohibition that they shall not be binding until sixty days after the date of their filing, but stand on the same footing as other decisions of this court."

These two decisions will be hailed by the bar of all the states as establishing effective bulwarks against an attack upon the judiciary more serious and menacing than any ever before made in the history of jurisprudence. They stand on a plane with Lord Coke's defiance of King James' interference with justice in the Seventeenth Century. The judges of the Supreme Court of Colorado, as well as the lawyers who as amici curiae assisted the Court in reaching a decision (among whom we notice the name of our good friend, Hon. T. J. O'Donnell of Denver), deserve the praise and gratitude of the profession everywhere for having rendered a distinct service to the cause of American jurisprudence.

NOTES OF IMPORTANT DECISIONS

THE MODERN TEST OF NAVIGABILITY. -The old test of navigability, the ebbing and flowing of the tide, shows the narrow provinciality of the common law. Because the Englishman knew in his experience of no other rivers which were navigable, in which the tide did not ebb and flow, therefore all rivers were navigable only when the tide appeared at regular intervals. The American test of navigability has gone through several experimental stages. It is not determined by the mode of conducting its commerce nor the difficulties of navigation, but whether "it is capable in its natural state of being used for purposes of commerce no matter in what mode such commerce may be conducted." The Montello, 20 Wall. 430.