Central Law Journal. mode or manner of mixing and proportions is not necessarily disclosed to him. * * * It may be and may not be in effect dis ST. LOUIS, MO., SEPTEMBER 15, 1916 closed, but this is far from a disclosure to POLICE POWER AS REGARDS ADULTER ATED OR MISBRANDED FOOD There is Federal legislation regarding the shipping of misbranded or adulterated food in interstate commerce, and, of course, state police power can in no way touch on the reach of this legislation. In Crescent Mfg. Co. v. Wilson, Commissioner of Agriculture, 233 Fed. 282, injunction was sought against such commissioner enforcing a New York statute to compel complainant to show the actual character and constituents of a compound known as "Mapleine" in that this compound had been admitted into the state under the Pure Food and Drugs Act. The court said as it was settled that "regulating the sale of food for domestic animals is properly within the scope of the state police power, and the vendors of such food are not deprived of their property without due process of law by a regulation requiring disclosure of ingredients, and minimum percentage of fat and proteins, disclosure of the formula for combination not being required" (see Savage v. Jones, 225 U. S. 501). This shows that the field for such regulation is not entirely occupied by the congressional act, and if state regulation still may be as to food for consumption by animals, so also does it exist as to food for human consumption. It being given that a state may inspect the general public by label." It hardly should be thought, that passing the test of federal inspection ought to be conclusive against the exercise of state police power. If our federal government found it necessary to examine quality or kind to ascertain if there was misbranding, it ought to be deemed only an incidental result, if thereby in effect a formula is disclosed. If state police power takes hold at all the same conclusion follows. But it is suggested here, that a necessary disclosure of that which one has a right to keep concealed, reposes in government officials something in the way of confidential knowledge. They become possessed of trade secrets and could be enjoined from exposing them, just as a present or former employe could be thus enjoined. After all, if investigation in a way that is lawful results in necessary exposure of a formula, that is the fault of the formula. It is a thing of property but not something to hide behind, when the exercise of police power is involved. This exercise is to be looked at from a practical standpoint, and conflict between federal and state power is not to be inferred except as to fundamental things, instead of those that are merely incidental. The court proceeded to hold that though disclosure to a state officer as to a formula resulted, this sort of disclosure, which resulted, possibly and not probably, ought not to hamper state regulation of a subject, where the regulation was excluded by Congress taking possession of the field of regulation. This does no violence to the federal law which ought to have only a NOTES OF IMPORTANT DECISIONS. INCOME STOCK DIVIDENDS AS BELONGING TO LIFE TENANT OR REMAINDERMAN.-We owe to the courtesy of Mr. Jos. H. Zumbalen, a member of St. Louis bar, the synopsis of an opinion by Judge George H. Shields, of St. Louis Circuit Court on the question of "the general law regarding the application between life tenant and remainderman of stock dividends," which question, says Judge Shields, "is about as complex a question as we find in the law books." St. Louis Union Trust Co. v. Curators of University of Missouri. From Judge Shields' ruling in this case no appeal was taken, but he discourses quite fully upon the three rules which have been followed by American courts, known as the Kentucky rule, the Pennsylvania rule and the Massachusetts rule. All of these rules were considered by us in 82 Cent. L. J. 115, and suggestion was made by us that the variety of ruling indicated above was of such importance that the matter ought to be taken care of by a statute to be proposed by the Commissioners on Uniform Laws. Judge Shields states the rules observed in different States as follows: "The Kentucky rule awards extraordinary, as well as ordinary, distributions, whether in the form of stock or cash dividends, to the life tenant; the Pennsylvania rule considers the time when the fund represented by the extraordinary dividend, if accumulated out of earnings, was so accumulated in relation to the time the life estate vested," or if accumulated partly before and party after apportionment is ordered, then according to principle above. The Massachusetts rule "holds that cash dividends, however large, are income, and stock dividends, however made, are capital." Judge Shields follows the Pennsylvania or apportionment rule, a rule to which we showed ourselves inclined in 82 Cent. L. J. 115, supra. We would very much like to reproduce the excellent opinion by Judge Shields and exhibit the reasoning he employs to his conclusion and the copious authority he cites. We have, however, already given some attention to the question and now find that there is such irreconcilable conflict among the States, that the question must be threshed out in each jurisdiction. The rule of apportionment seems to us the only logical and just rule to follow. POLICE POWER-ORDINANCE PROHIBITING THE ERECTION OF STORES IN RESIDENTIAL DISTRICT.-In State v. Houghton, 158 N. W. 1017, the Supreme Court of Minnesota decides by majority ruling that an ordinance under statutory authority, prohibiting the erection within a residential district of any stores, factories, etc., was unconstitutional, so far, at least, as it applied to stores. The majority opinion cites a great many cases, but none directly concerning the question · of erecting a store in a residential district. It may be conceded that, if objection to a structure is based only upon esthetic considerations, it is unavailable against the establishment of a lawful business in any locality. But if occupations may affect the health, safety and comfort of people in a neighborhood, they do come under the police power and their erection may be restrained. What does the word comfort stand for in such a situation? It has been said that: "The police power of a State embraces regulations designed to promote the public convenience or the general prosperity as well as those to promote puhlic health, morals or safety and is not confined to the suppression of what is offensive, disorderly or unsanitary, but extends to what is for the greatest welfare of the State." Bacon v. Walker, 204 U. S. 311. And Justice Holmes, in Noble State Bank v. Haskell, 219 U. S. 104, employed language fully as broad as this. It is well known that there are residence and business districts in cities, and that courts will declare some businesses in the former nuisances which would not be so adjudged were they in business districts. It seems to us that this presents reason for classifying such districts and large latitude should be given cities in judging what would be rightful classification. There is very much in these cases to show that the individual views of judges, rather than well defined principle, control conclusions in this class of cases. The attempt at definition of the police power does not aid greatly in the matter. What Judge Holmes said in the Noble State Bank case that "prevailing morality or strong and preponderant opinion" should be a test of the reach of police power, may simplify the question by validating almost any kind of legislative enactment ought to be deemed good prima facie evidence. LIABILITY FOR INJURIES CAUSED BY RUNAWAY HORSES. Depends on Negligence.-The liability of the owner of a team for injuries done by it while running away depends upon negligence. The mere fact that the runaway team escaped from the private land of the owner is insufficient to create liability.2 Where it appeared that the defendant's team was being driven on the day in question to a sled; that the horses were spirited, but had never run away before; that while going down a long hill one of the horses jumped for some unknown reason, and a moment later the other horse commenced to run; that the driver and another occupant of the sled threw their combined weight on the lines, but could not stop the team; that the team ran up a street, and seeing a rig in front of them, the driver drew the team to the left to avoid it, and the sled came into collision with a lamppost, the bolts holding the whiffletrees came out, and the free team dashed up the street, collided with plaintiff's automobile, and inflicted the damage complained of; that the horses were driven with new harness, and the same whiffletrees with which they had been used without trouble during the previous summer and fall; and where there was no evi dence that the driver was not a careful, prudent, and competent man, it was held that a verdict was properly directed for the defendant, as no negligence in the handling of the team was shown.3 ed from the rear, started to pass, the wheels of the wagon struck the tracks of a railway at a curve, and the rear end of the wagon was deflected sufficiently to throw the end. of the ladder against the automobile, which was about 6 feet from the wagon. The impact threw the driver from the wagon and frightened the horse, causing it to run away and collide with plaintiff's vehicle, damaging the same. Held, that there was no negligence and that no recovery could be had.* Where the harness appeared to be in good condition when a livery rig left the stable, mere proof that the horse ran away when the harness unexpectedly broke, was insufficient to show liability." Negligent Driving. Whether or not a driver is negligent in the manner or the place in which he drives his team depends upon all the attendant circumstances; the character of the horses; their age, and the length of time they have been driven; whether they have been hard worked recently, or are "feeling their oats" whether they are likely to see or hear the thing most likely to frighten horses of their peculiar disposition, are some of the things to be considered in determining such question. So, whether one was negligent in driving over a viaduct when a train, which would pass under the viaduct, was approaching, depended primarily on the character of the team." If, within the knowledge of the. owner, the propensity or disposition of neither of the horses composing his team is such that it may reasonably be foreseen or expected that a runaway will occur when the team is driven in a careful manner, he not liable for injuries caused by the team running away without his fault." A competent driver of a one-horse wagon was proceeding along the middle of a pub-is lic road. A ladder in the wagon projected some distance over the rear of the wagon. The mere facts that more than seven the testimony of a witness, who saw the horses running, that there was nothing tied to them, had but little probative force, "for it is quite possible that a horse that is fastened may break away without any portion of the halter or other fastening re of the horses had run away in a cornfield, and that he had gotten away from his owner when a mere colt and gone to another farm, were insufficient to show that his owner was negligent in driving him on the road.s Violation of Ordinance.—In some statesmaining upon him." However, the court the violation of an ordinance in regard to the care and control of teams in city streets, is only evidence of negligence, while in others it constitutes negligence.10 Such an ordinance is inapplicable to a case where the team was on privately-carriage passenger was injured in a runowned land when it started to run, and thereafter escaped to a public street.11 Where an ordinance requires unattended teams in the streets to be hitched, it is immaterial to the question of a violation of the ordinance that a driver set the brake of his wagon and wrapped the lines about it.12. 13 Leaving Team Unattended and Unhitched. The person in charge of a team. is required to exercise ordinary care to hitch it in some reasonably secure manner, upon leaving it in a city street, and a breach of this duty constitutes negligence, or at least raises a presumption of negligence.1 When such presumption arises, the owner then may prove in defense that the horse was gentle and his habits good, and that, in the exercise of ordinary care, it could not have been anticipated that he would become frightened or run away.15 . In a Missouri case where the negligence alleged was in leaving the team unhitched and unattended, the court complained that held, and no doubt rightly so, that such testimony was sufficient to take to the jury the question whether or not the team was hitched.16 Recovery was allowed in a case where a away; the horses starting while the driver was attending to taking on other passengers, and while the reins were lying loose. What caused the horses to run away did not appear, but as one of them kicked at the driver when he attempted to get the reins preparatory to starting, and they immediately ran away, the court declared it safe to infer that they were not ordinarily safe or gentle horses. Further, the court said: "We also think the jury was authorized to find that the driver was negligent in not keeping hold of the reins, or hitching his horses. Unless he knew that the horses were gentle and would stand without being held, it was his duty to have his hands on the reins so that he could control them, or to have hitched them. There is no evidence that the horses were gentle or safe, and the presumption from their conduct is that they were not."17 Where there was evidence that the team in question was restless and nervous and had acted in a fractious manner before. that it was left unhitched and unattended. and that the lines were loose and the brake on the wagon not set, and the team took fright at the loud slamming of a gate and Whether it was negligent for the driver of a team to leave it untied and unattended, in a factory yard, behind another team, just before time for the factory whistles to blow, while he went into an office 80 feet away, was held to be a question for the jury, although the driver knew that the team was gentle.19 It has been held that, where the owner of a team left it standing unattended and unhitched in an uninclosed space adjacent to a public street, and it ran away and injured a person, he was liable in damages therefor.20 Whether or not a driver was negligent in stopping a young horse, being driven for the first time, facing and close to a railroad crossing, where a freight train was doing switching, accompanied by the usual noise, and going to the rear of his vehicle, where he was out of reach of the lines, without hitching the horse, and it took fright and ran away, was a question for the jury.21 The driver of an ash cart backed the same against a dock, blocked the wheels, and went to the rear of the cart and proceeded to shovel ashes into the cart. While thus engaged, a passing tugboat blew its whistle, and the horse ran away, and collided with and fatally injured the plaintiff's horse. The defendant had owned the horse about six months, and there was evidence that the horse never showed any disposition to run away, but, on the contrary, he was slow and lazy; that he had been driven under the elevated railroad, and had been used about the water front, where tugboats were whistling, and had never manifested fear or nervousness. It was held that the evidence did not warrant a finding of negli Evidence that the defendant left his horses unhitched and unheld while his back was turned to them, he knowing they were spirited horses and had previously run away, made a prima facie case of negligence.23 Hitching insecurely.-When a driver has exercised ordinary, care to hitch his horses in an ordinarily safe way, he is not liable. if they break loose and injure someone, unless he was negligent in driving such a team.24 Whether a hitching by tieing the lines. to the hounds of the wagon was with reasonable security, was declare to be a question for the jury.25 A driver of a wagon loaded with coal stopped his team near an iron railing, and tied the outside horse, which was restive, to the railing. He left them, and they became frightened, broke the tie strap, ran away, and injured plaintiff's horse. The strap used was apparently suitable for hitching purposes. Held, that a verdict for the plaintiff was against the weight of the evidence.26 Presumption from Runaway. In a number of jurisdictions it is held that the fact. that a team of horses is running away unattended in a public street is evidence of negligence on the part of the person in charge of them, and that the burden is thus placed on the owner to explain away the inference.27 This inference of negligence is based upon the rule that, when that which causes the injury is under the exclusive manage |