prevent another application to the courts of the United States or to the courts of the state of Tennessee."

he contends that the question is still open whether or not any statute of the character we have been considering becomes unconstitutional merely because of its providing for such penalties as have been described.

But with greater interest still do we follow the reasoning on this subject in an opin

an

Taking, therefore, these two cases together, it may well be argued that Justice Peckham did not intend to go any further than Justice Brewer, whom he quotes, nounced in Cotting v. Stock Yards Co., 183 U. S. 99. In that case Justice Brewer said: "It is doubtless true that the state may impose penalties, such as will tend to compel obedience to its mandates by all, individuals or corporations, and if extreme and cumulative penalties are imposed only after there has been a final determination of the validity of the statute, the question would be very different from that here presented." Then the Justice goes on to say "when the legislature, in an effort to prevent any inquiry," enacts such rates, then it would be a serious question, whether or not a statute thus intending was unconstitutional.

Justice Brewer was here speaking very cautiously, indeed, as we believe it would be thought by every lawyer, that if any court could deduce any such intent in a statute, it would undoubtedly hold that penalties thus imposed, whether they be "extreme and cumulative" or otherwise, would be illegally imposed.

Therefore we read with special interest that portion of the opinion of Judge Poffenbarger of West Virginia Supreme Court of Appeals in the case of Coal & Coke Ry. Co. v. Conley et al., 67 S. E. 613, in which

ablest judicial expositions of principles on all subjects it treats it has been our opportunity to read. We especially commend tunity to read. those parts of the opinion which demonstrate, with faultless logic, that a state is not such in the sense of the Eleventh Amendment, when its officers are prohibited by the courts from enforcing an unconstitutional statute and when equity may enjoin the enforcement of a criminal statute. These are examples of the sustained logic of a master, proceeding as easily and naturally on the elevated plane he has placed himself as others of us do in the ordinary walks of life.

Coming back, however, to that part of this opinion first above mentioned, we find the able judge reasoning, that general words must not embrace that which the legislature knows is beyond its power to accomplish. What it knows it cannot accomplish it is to be presumed it does not intend to attempt.

The opinion says: "If the courts could set aside statutes on the assumption of their emanation from ignorance, stupidity or corruption on the part of the legislature, the validity of every statute could be called in question, and there would be no certainty or stability in the law. In passing this statute, the legislature knew the limitations upon its powers and the constitutional rights of the railroad companies. It knew they were entitled to a hearing in the courts of the reasonableness of the rate and that it could not deprive them of it. Did it intend to do so? Evidence of such intent must be disclosed by express language in the act, to warrant an affirmative answer to the question."

Then the Judge cites numerous instances wherein alleged violations, coming within the letter of the law, were held to make of

the statutes absurdities, if enforced. He goes back to Blackstone's illustration of a barber bleeding a man in the street not coming within the act of parliament against the drawing of human blood; to that of a prisoner breaking out of jail to save his life from a prison on fire, not being within the statute making it a felony to break out of jail, and he says a corporation appealing to the courts against an unconstitutiona! statute is "metaphorically a fugitive from the fire of confiscation, or a vindicator of jaw or a surgeon relieving an abscess in the body politic."

The judge contends, that there is nothing objectionable in the way of recognizing what we may call an interregnum in the enforcement of these penalties, if thereby resort to the assertion of a constitutional right is made possible. Such kind of construction saves a statute, or tends to save it, in its entirety, with no question of separableness to be considered, while the other kind of construction either destroys or emasculates it, and it is the duty of courts to save a statute if possible.

It certainly seems as allowable for a legislature to contemplate such an interregnum as it is for a court to decree that there is one whether the legislature so intended or not. The Young case did decide, that the court could temporarily enjoin enforcement of rates, while their constitutionality was being inquired into. Assuredly, then, an interregnum is in legal conception, and, if so, the legislature may as well contemplate it, as a court.

Mr. Justice Brewer seemed to think, that after final adjudication upon validity excessive fines might not be considered confiscatory and we doubt very greatly whether their cumulativeness would be taken into account for any other reason than their being thus, while a bona fide appeal is being made to determine whether or not a rate is confiscatory. Divest these penalties of their cumulative character and they look very reasonable indeed, in comparison with fines for violations of other statutes, whether the offenses be mala prohibita or mala in se.

NOTES OF IMPORTANT DECISIONS.

STATUTE OF FRAUDS-POST-NUPTIAL ATTEMPTS TO VALIDATE ANTE-NUPTIAL AGREEMENTS.-In some jurisdictions contracts required by the Statute of Frauds to be in writing are otherwise void and in some, they are merely declared unenforceable. The Wisconsin Supreme Court in ruling that an oral ante-nuptial agreement could not be validated by a post-nuptial agreement in writing is careful to say that there is a distinction in this as to agreements which are void and those merely unenforceable, the former being those by Wisconsin statute. The court says: "How a void agreement which has no vitality whatever can be brought into force and vigor by another agreement made by the parties after they are disqualified to make the one which is void is not easy to understand. If this can be done, it is an easy way of avoiding the statute. If our statute were similar to the English statute of frauds and the statutes of the majority of the states which follow either literally or in substance the English statute, the proposition would be quite different. The English statute and most of the other states, except Wisconsin and New York, do not make the contract void, but provide,

that, 'no action shall be brought

to charge any person upon any agreement made upon consideration of marriage,' etc. See Kohl v. Frederick, 115 Iowa 517, 88 N. W. 1055; Frasier v. Andrews, 134 Iowa, 621, 112 N. W. 92, 11 L. R. A. (N. S.) 593. But even under such a statute a similar ruling is that of the principal case has been made. McAnulty v. McAnulty, 120 Ill. 26, 11 N. E. 397, 60 Am. Rep. 552.

The court further says: "It is true that the statute does not provide expressly when the note or memorandum shall be made and signed and doubtless this might be done after the oral agreement was made and under such agreement valid where the relations of the parties had not changed and no rights intervened. Brown on Statute of Frauds, § 224. But it seems plain that after the parties became disqualified to make an ante-nuptial contract, they cannot by a post-nuptial agreement infuse life into an oral ante-nuptial agreement which never before marriage had any legal existence." Why may it not be urged, however, if the parties are disqualified after marriage, that also they are not able to infuse enforceability into an unenforceable contract? Such seems to have been the Illinois view.

THE VARIOUS FORMS OF COMMIS
Jalan
SION GOVERNMENT.

A new experiment was made when the Texas legislature of 1901 granted Galveston a new city charter, substituting for the old, "commission government." The success of this municipal venture is undisputed in Galveston, and yet, some of our students of municipal affairs would maintain that the extraordinary conditions prevailing there, as an attendant economic state, brought about by the catastrophe, were largely responsible for the much heralded success of the "Galveston Plan." However this may be, developments since 1903, in other cities of Texas, and elsewhere, have well nigh proved to us that the peculiar conditions prevailing in Galveston at the time of the inauguration of the new system, were not responsible for that success.

The movement has spread rapidly and today we may say that this is a distinctive American type of city government. In short, Texas, Iowa, Kansas, Idaho, North and South Dakota and Oklahoma have adopted laws tending to reorganize municipal corporations so as to embrace the commission plan in one or more of its numerous forms. Even Tennessee passed a law which was declared unconstitutional. Wisconsin and Washington have 'considered bills bearing upon the subject.

The chief objects of this new method of government are: I, to remove party politics from municipal elections; 2, to decrease administrative complexities which are constantly resulting from the general American policy; 3, to abolish the ward system; 4, to place the city finances upon a sound business basis; 5, to fix responsibility, in case of mismanagement. These objects are accomplished by having the city administration carried on by commissioners, usually five in number, who direct, control and are responsible for every department, and even the departmental executives.

Each city secured a special charter in Texas, with peculiar features. The original Galveston plan (1901) was declared uncon

stitutional because the officials were partly elective and partly appointive. This effect was immediately remedied, and, in 1903, all offices offices were made elective. The charter provides for the assembling of the municipal functions in the hands of five commissioners who appoint the subordinate officers. This commission is elected at large by the people. The members must be 25 years of age and residents of Galveston for five years immediately preceding their election. The president of the commission is called the mayor. He is elected separately. Whenever necessary, the commission may compel the attendance of witnesses.

The commissioners are assigned to different departments, i. e., streets and public improvements, police and fire, waterworks and sewage, finance and revenue. The mayor is not assigned to any one department. This body of five men, sometimes called the board, determines the policy, has full power in the appointment of subordinates, except the chief of police and fire, whom the commissioner of fire and police appoints, and can remove any official upon written notice and upon giving such official opportunity to be heard.

The budget is made up a year in advance, based upon the estimates made by each member concerning the needs of his department. The law provides for a careful administration of the finances. No officer may be interested in a contract to which the municipality is a party. Bids must be called for on any proposal of $500 or more. Detailed reports must be given each month. by the treasurer, and a statement of all receipts and expenditures is published quarterly. The president of the board must report all financial transactions to the state comptroller at least once in six months. For all of this responsibility, the mayor receives a salary of $2,000 per annum, while the other commissioners receive but $1,200 each per annum.

The relations which these commissioners have with the city's administration may be likened to the duties of the ministers of the British cabinet. The superintendents

under them take over the managerial part of the work and direct the routine. The commissioners simply advise and direct. Yet, the board must meet weekly.

All cities having this form of government have abolished the ward system of election. All elections are from the city at large. Houston requires its elective officers to be owners of real estate, and also a five-year period of residence. The mayor fills all appointive positions. The council may reject his appointments, however. His veto power may be overruled; it extends to separate financial items of the budget which he prepares for the council's approval. An ordinance cannot be passed on the day it is introduced except it be an emergency measure. No financial measure is ever considered as an emergency measure.

Provision is made for the referendum upon petition of 500 voters or more, upon all matters of franchises and propositions for municipal purchases. The council has specific power to regulate public utility rates and build municipal plants. Members of the council cannot hold other public office during their incumbency; they cannot be interested in any city, school, state or county contract or public work, and any such contract is null and void, and the offending member may be removed from office by the mayor and the council. The council elects the city comptroller, directs and supervises finances, can examine the books of all quasi-public corporations for municipal purposes.

This new form of city government was likewise successful in Houston, and is prov

The general provisions for these cities seem to be about the same, varying in important details. There is a tendency to experiment with new methods, and it is too early to predict what the outcome will be. The laws prescribed for these latter cities all provide for the referendum on franchises and bond issues; most of them provide for the "recall" of the elective officers, or have some other way of getting rid of public officers other than on motion of the board. In all of these cities the commissioners are elected at large, and where party primaries are held, nominations must be at large.

El Paso's charter provides for the election of the judge of the corporation court, a treasurer, an assessor and collector of taxes, leaving the power of removal in the hands of the board upon hearing. Fort Worth's charter has an additional feature, namely, requiring that the commissioners shall be elected to take charge of designated departments. Thus, the voter knows what position each official will fill. In the Dallas plan the presidents of the banks nominate the auditor. All other officers are elected by the mayor and the council. In the smaller cities of Denison and Greenville, only two commissioners are elected. The mayor of Greenville, acts as the judge of the corporation court and the city treasurership goes to the highest bidder.

In 1907, Iowa passed a law allowing cities to organize under the commission form. Des Moines, being the first city in Iowa to organize under this law, is often taken as the Iowa model and the plan is called the "Des Moines Plan." The law has this advantage over the Texan law in that the general enabling act provides that all cities over 25.000 may adopt the plan, thus insuring a uniform system all over the state, instead of allowing conflicting and perplexing provisions to arise in the

several cities. The Iowa law is so good that it is deserving of some consideration in detail.

The first three sections are general, providing for biennial elections of the mayor and the councilmen, the manner of election, and a non-partisan primary. Candidates' names are placed on the ballot on petition of 25 per cent of the voters, the two highest candidates being placed on the ballot. Penalties are imposed for bribery during elections and for violation of the election laws.

Power to govern the city is provided in section 6. A majority vote is necessary to pass a measure.

Five departments are created, namely, 1, public affairs, with the mayor exercising direct supervision; 2, accounts and finances; 3, public safety; 4, streets and public improvements; 5, parks and public property, One member of the council presides over each of the other departments, and the council determines to what department each councilman shall be assigned, except the department of public affairs. The council elects by majority vote the necessary officials to administer the departments. (Secs. 7 and 8.)

A sliding scale is provided for the salaries of the mayor and the councilmen according to the size of the city, ranging from $2,500 for the mayor and $1,800 for the members of the council in cities from 25,000 to 40,000, to $3,500 for the mayor and $3,ooo for the members of the council in cities over 60,000. (Sec. 10.)

Every ordinance, contract, etc., must be open to public inspection for 7 days prior to its final passage and does not go into effect until 10 days after its passage; if, during these days, 25 per cent of the voters petition for the referendum, the council must submit the question to a vote. franchises to public service corporations must be submitted to the vote of the people for approval. (Sec. 12.)

All

Direct or indirect interest in public service corporations is prohibited on the part of city officials or employees. A civil ser

vice commission is provided for, and the methods of procedure for such commission are prescribed. Complete publicity in all city affairs is provided for, i. e., monthly statements of receipts and expenditures are to be published—an annual examination and audit. Iowa has just established a system of uniform municipal accounting, based upon schedules provided by the census bureau at Washington. This new law will aid the cities of Iowa is securing better accounting methods, and especially those cities that have adopted or are contemplating the adoption of the commission form of government. (Secs. 13, 14 and 15.)

Upon petition of 25 per cent of the voters a special election must be called at which aimed must stand for re-election. The inithe person against whom the "recall" is tiative is established in the code, by which the people can compel the council to pass needed ordinances. Upon petition of 25 per cent of the voters the council must pass the ordinance in question, or, refer it to popular vote. (Secs. 18 and 19.)

If after 6 years, the system proves unsatisfactory, the people can vote to return to the old system. (Sec. 20.)

The "Des Moines Plan" is the most advanced form of 'commission government ever put into operation. It is representative the people have an absolute check upon administration of city affairs-it makes it possible for the people to assert their rights at any juncture. They control, absolutely, their representatives. This is one of the objections to the Galveston plan. In Des Moines, responsibility is fixed. Salaries are sufficiently high to insure good service from those who are willing to devote their time to the work of honest, sane and sober city government.

Lewiston and Boise have charters in Idaho. The Lewiston charter provides for six aldermen and a mayor, who have the power of appointment and removal of other officers, except the comptroller, who is elected for a period of two years, and cannot be removed unless for cause, after a hearing. The recall and the referendum are provided for; franchises are limited to 25 years,