mise, or they constitute his apology and justification for selecting a bad one. Judge Cardozo overstates, I think, the force that a single precedent has had for common-law judges. The fiction that judges find and do not make the law had at least this advantage, that courts have not hesitated to leap over a fence consisting of but one case which did not commend itself to them. While they have not insisted on the series longissima rerum similiter indicatarum, it was always a course of decision, a weight of authority, that forced them to accept a rule they would otherwise have rejected, and the popular fancy of a judge in 1922 confronted with a single unreversed decision of 1422, or even of 1777, and helplessly succumbing to it, is not really borne out by the facts.

Judge Cardozo is inclined to limit the functions of the judge as a legislator to the "gaps in the law" which the "Free-law" school as well as Zitelman's book, has made famous. Only in the obvious silence of statute or precedent, should the judge follow the injunction. of the Swiss Civil Code and legislate, but then he should legislate consciously. However, determining the existence of a gap is itself the difficult task. A law which is the essence of reason has no gaps, and a law which makes no such profession may have none. Under the common-law writs, under the Roman legisaction, there were no gaps. The law concerned itself with facts that could be fitted into rather unyielding frames. There were no gaps, not because there were no cases in which injuries were left without remedy, but because the system did not pretend to do more than classify the injuries it would consent to remedy. And again a system that refuses to admit the existence of damnum absque iniuria has no gaps.

When the facts of Riggs v. Palmer 115 N. Y. 506 were presented to a New York court, was there a gap in the law? Should a legatee who murdered his testator take under the will? That question will be answered differently in exact accordance with the desire of the judge to assume legislative functions. If a judge decided that a gap existed, he would act as a legislator, that is, he would apply the sociological method; he would decide what public interest demanded and determine accordingly without troubling himself to construct a syllogism. But suppose he did not wish to legislate and did feel bound to construct a syllogism. He would have then to determine what his major premise should be. In this case at least three were open to him, one of which would have led to a result different from the others. Is it not obvious that he would --that he must-choose the premise which will secure what to him is a desirable result, and that the result will be desirable in accordance with his views of society?

That is, he is applying the sociological method quite as much as in the other case. He is doing so, even when he selects of three possible major premises the one he thinks most important without regard to its application in the particular case. For he has no criterion of importance in the abstract, and his only way of deciding

that question is to be convinced of the greater or smaller advantage which the inferences from conflicting premises will bring. However, if he will not recognize a gap, and selects his premise by its fancied intrinsic importance, he runs the danger of being unduly influenced by the accident of his own legal studies, and this is a greater danger than that of being influenced by the accident of one's own economic and social theories.

The judicial process, then, as presented by Judge Cardozo, may be said to consist in using history and sociology to select the principles of our reasoning and logic in applying it. Where history, that is, precedent, permits a choice, sociology will make it, and here logic will not help us, for it is the conclusion that consciously determines the premise. Logic, however, is of especial application to statutes, for our judges will scarcely have the hardihood of "le bon juge," Magnaud, who declared in his speech to the Chamber of Deputies: "The law cannot have wished an unjust result. Therefore, if an apparently unjust result follows, the words of the law must have a sense different from what they seem to have." Our courts have performed feats in this direction without so open an avowal; but a salutary change is noticeable and we are not likely to see repeated the methods by which statutes are wrested from their declared sense to secure a result opposite to what was intended.

Enough has been said to show that in the author's presentation the judicial process depends on the learning, humanity and philosophy of the judge. That is doubtless not a new doctrine. The book, however, makes clear that in a complicated age, rude integrity and formal logic will not suffice to carry the process to a desirable result. The learning must be great, the humanity finely tempered and broadly established, the philosophy acute. Judge Cardozo is himself an example that such qualities are ceasing to be rare in our judiciary.

Max Radin.

SPECULATION AND THE CHICAGO BOARD OF TRADE. By James E. Boyle. The Macmillan Company, New York, 1920. pp. xi, 277. Lawyers are called upon to become experts in every occupation, trade, and profession besides their own. A lawyer anxious to ascertain the complexities of the method of doing business in some field is at a greater disadvantage than the lawyer who is anxious to make himself for the purpose of a single case an expert physician, for it is common experience that the man trained in medicine can nearly always transmit his knowledge to one so intelligent as the lawyer, but that the business man cannot. This is particularly true of a matter so complicated as the conduct of transactions on the Chicago Board of Trade. While the purpose of this book is to explain and in a certain sense justify speculation there, in which respect it is interesting, readable and convincing, its particular value to the lawyer will be in presenting to him clearly the intrica

cies of business methods in wheat futures and the like. As such it might at some time be of very great assistance to a lawyer confronted with a problem of this sort. A. T. Wright.

Books Received

HANDBOOK OF PRACTICE UNDER THE CIVIL PRACTICE ACT OF NEW YORK. By Carlos G. Alden. Baker, Voorhis Co., New York City, New York, 1921. pp. vi, 340.

HISTORY OF THE SOUTHERN PACIFIC. By Stuart Daggett. Ronald Press Co., New York City, New York, 1922. pp. vi, 470.

INTERVENTION IN INTERNATIONAL LAW. By Ellery C. Stowell. John Byrne and Company, Washington, D. C., 1921. pp. viii, 558.

INTRODUCTION Ä L'ETUDE DU DROIT PENAL INTERNATIONAL. By H. Donnedius de Vabres. Librarie De la Société de Recueil Sirey, Paris, France, 1921. pp. 482.

A NEW CONSTITUTION FOR A NEW AMERICA. By William Macdonald. B. W. Huebsch, New York City, New York, 1921. Pp. 260.

THE SPIRIT OF THE COMMON LAW. By Roscoe Pound. Marshall Jones Co., Boston, Massachusetts, 1921. pp. xiv, 224.

World Peace or Principle of INTERNATIONAL LAW. By Fred H. Aldrich. Fred S. Drake, Detroit, Michigan, 1921. pp. 218.

California Law Review

VOL. X

JULY, 1922

Number 5

Judicial Review of Exceptions from the
Referendum'

U

NDER constitutions that permit the people of the states to

apply the referendum to acts of the legislature, the legislature may except from the power of the referendum laws enacted in case of "emergency," laws "necessary for the immediate preservation of the public peace, health, or safety," etc., and laws concerning such specific subjects as "appropriations," etc.; and certain specific subjects such as the regulation of "taxation or exemption," etc., are made always subject to the referendum. These provisions for exception are variously combined. "The vital question is, what tribunal is to determine whether a law does or does not fall under . . . [the given] classification?"2

Where the classification is specific, the answer has caused no difficulty, and in all cases coming before the courts they have not hesitated to review the legislative determination as, apparently, purely a question of law, irrespectively of their attitude toward the more general limitations. "Though it may deem an act which is an 'infringement of the right of home rule for municipalities' to be immediately necessary, the legislature is forbidden by the positive mandate of the constitution to give it immediate effect. Whether a given act is such an infringement is a judicial question." "The only reasonable conclusion is that such an appropriation is not for the 'usual current expenses of the state.' The said legislative declaration has no greater effect, and is no more binding upon the court, than if the legislature had declared that a

1 Cf. 7 A. L. R. 519-33 (1919).

2 Kadderly v. Portland (1903-4) 44 Ore. 118, 147, 74 Pac. 710, 75 Pac. 222. 3 Payne v. Graham (1919) 118 Me. 25, 107 Atl. 709.

certain measure is or is not constitutional. . . . The question before us is simply one of construction or interpretation of an act of the legislature and of a provision of the constitution, and that is a judicial question."4

But the distinction between the special and the general limitation is only a matter of degree ("most differences are, when nicely analyzed"), and this is, to some extent, the cause for the disagreement among the courts in their consideration of the more general limitations. In fact, courts at times consider together the two classes of limitations without noting any difference between them significant in this connection; and it has even been expressly urged that the same principle applies to both. This is the implication in all decisions favoring review in case of this more general limitation.

However, there has been much confusion among the courts of the several jurisdictions and even of the same jurisdiction where the more general limitations have been considered, with the result that at present in five jurisdictions the courts will review the legislative determination that a law is necessary for "the immediate preservation of the public peace, health, or safety," etc., in

4 McClure v. Nye (1913) 22 Cal. App. 248, 133 Pac. 1145, 1147. See also Oklahoma City v. Shields (1908) 22 Okla. 265, 100 Pac. 559, 576; In re Menefee (1908) 22 Okla. 365, 97 Pac. 1014, 1018; Riley v. Carrico (1910) 27 Okla. 33, 110 Pac. 738, 740; State v. Clausen (1915) 85 Wash. 260, 148 Pac. 28; Gayman v. Mullen (1916) 58 Okla. 477, 161 Pac. 1051, 1054; Lemaire v. Crockett (1917) 116 Me. 263, 101 Atl. 302; State v. Howell (1919) 106 Wash. 535, 181 Pac. 37, 39;Strange v. Levy (1919) 134 Md. 645, 107 Atl. 549; State v. Taylor (1920) 43 S. D. 166, 178 N. W. 985, 986.

5 Rideout v. Knox (1889) 148 Mass. 368, 19 N. E. 390, 392, in another connection.

Scott, J., dissenting, Van Fleeck v. Ramer (1916) 62 Colo. 4, 156 Pac. 1108, 1115. Cf. State v. Meath (1915) 84 Wash. 302, 147 Pac. 11, 17.

7 In re Hoffman (1909) 155 Cal. 114, 99 Pac. 517, 519, overruled; Attorney General v. Lindsay (1914) 178 Mich. 524, 145 N. W. 98; State v. Meath (1915) 84 Wash. 302, 147 Pac. 11, 12; State v. Howell (1915) 85 Wash. 281, 147 Pac. 1162 1163; State v. Howell (1915) 85 Wash. 294, 147 Pac. 1159; Miami County v. Dayton (1915) 92 Ohio St. 215, 110 N. E. 726, 728; Rigdon v. San Diego (1916) 30 Cal. App. 107, 157 Pac. 513, 515, overruled; State v. Howell (1919) 106 Wash. 542, 181 Pac. 37, 39; State v. Stewart (1920) 57 Mont. 144, 187 Pac. 641; State v. Sullivan (1920) 224 S. W. (Mo.) 327, 337; State v. Hinkel (1921) 198 Pac. (Wash.) 535; State v. Smith (1921) 133 N. E. (Ohio) 457; State v. Smith (1921) 133 N. E. (Ohio) 480; State v. Becker (1921) 233 S. W. (Mo.) 641, 644. Cf. Payne v. Graham (1919) 118 Me. 251, 107 Atl. 709, 710. The leading case is State v. Meath.