proper order.-Alwart Bros. Coal Co. v. Royal Colliery Co., U. S. C. C. A., 234 Fed. 20.

95. Implied Agreement.-One who has agreed to perform an act impliedly agrees to perform whatever is necessary; hence where a seller contracts to sell goods f. o. b. cars, he must procure the cars and load the goods thereon. Culp v. Sandoval, N. Mex., 159 Pac. 956.

96. Reasonable Time.-A contract to buy and sell personal property, silent as to its duration, is terminable by either party after a reasonable time and upon reasonable notice.Southern Pac. Co. v. Spring Valley Water Co., Cal., 159 Pac. 865.

97. Statutes-Hours of Service. The interpretation of the Hours of Service Act by the Interstate Commerce Commission, as to the meaning of the words "towers, offices, places and stations" and the phrase "continuously operated night and day," though not controlling, is quite persuasive, entitled to weight, and may well be followed, unless it clearly appears from the plain language of the enactment to be erroneous. United States v. Illinois Cent. R. Co., U. S. D. C., 234 Fed. 433.

98. Street Railroads Contributory Negligence. Driver of moving van who was struck by street car, held guilty of contributory negligence, where he did not see the car until it was almost upon him, though he could have seen it 700 feet away.-Dove v. Philadelphia Rapid Transit Co., Pa., 98 Atl. 618.

99. Instructions.-In an action for damages to an automobile by collision with a street car, an instruction that, if after the motorman discovered the perilous condition of the automobile, he used all the means within his power to prevent the collision, then verdict will be for defendant was favorable to plaintiff.-Adams & Washam v. Southern Traction Co., Tex., 188 S. W. 275.

100. Subrogation-Contract.-Where one who is under no duty, legal or otherwise, to pay first mortgage, loans money to pay it, taking mortgage on the same and other property with understanding that he was to have first lien, and in the belief there were no other liens, there is no clear showing of right to conventional subrogation.-Boley v. Daniel, Fla., 72 So. 644.

101. Trusts Trustees.-Where library trustees illegally made a personal loan of library funds, and thus became personally liable, their successors could not object to collection of a note given for loan by suit in individual names of the trustees who made the loan.-Tedder v. Walker, Ga., 89 S. E. 840.

102. Vendor and Purchaser-Estoppel.Where vendee, claiming rescission for misrepresentation as to acreage, retains possession and use for a long time, and an allowance for deficiency would compensate purchaser, equity will not decree rescission.-Straabe v. Jackson, Minn., 158 N. W. 915.

103. Evidence.-Where record showed that land sold for taxes was quitclaimed by the county to one who conveyed the same, a remote grantee by warranty deed cannot defeat action on note and mortgage for purchase price by proof that there was no evidence of issuance of deed to county, having remained in possession of land and not offered to return it.-Mercer County State Bank of Manhaven v. Hayes, N. D., 159 N. W. 74.

104. Innocent Purchaser.-One purchasing land from the vendee of the purchaser of tax title is not an innocent purchaser where the successors of the original holders were in possession and farmed the land at all times, although their contract assignments were never recorded. Caldwell v. Pierson, S. D., 159 N. W. 124.

105.-Specific Performance.-In suit for specific performance of contract to buy land by complainants claiming under mortgagors, testimony that no interest on mortgage debt had been paid or demanded for 36 years gave rise to a clear presumption of payment, so that the mortgage, though unsatisfied of record, was no reason for declining to fulfill the contract.Barsky v. Posey, Del., 98 Atl. 298.

106. Waters and Water Courses-Diversion. -While upper proprietor may accelerate surface

107. Easement.-A lease of mill site lots. demising a perpetual right to specified quantities of water from lessor's canal and obligating the lessor to repair the canal, is the grant of a continuous easement, the residue of title remaining in the lessor being subject to the burden of repair.-Moremouse v. Woodruff, N. Y., 113 N. E. 512,

108. Pollution.-Where defendant company had employed every means known to the business to prevent discharge of noxious matters into a stream, it was not chargeable with negligence on occasional discharge of such matters with consequent pollution of waters and damage to complainant's stock-Worley v. Mathieson Alkali Works, Va., 89 S. E. 880.

a

109. Wills-Burden of Proof.-One attacking will after probate for fraud or undue influence does not shift the burden of proof to proponent of will by showing confidential relation borne by the beneficiary toward testatrix. -McElhaney v. Jones, Ala., 72 So. 531.

110. Construction.-Where a testator left the residue of his estate consisting principally of unproductive land to a son subject to the payment of annuities, legacies, and other bequests, and "also subject, if necessary, to the sale by my executors and their successors,

from time to time, of portions thereof, for the payment of taxes, assessments," and expenses and subject to executory limitations, and cost of permanent improvements, consisting of sewer and curbing assessments and grading, should be charged to the corpus of the trust.-Sheffield v. Cooke, R. I., 98 Atl. 161.

111. -Contest.-Beneficiary under will revoked by testator has no standing to contest validity of subsequent will in which such beneficiary is not named, and an issue devisavit vel non petitioned for by such beneficiary is properly refused.-In re Curtis' Estate, Pa., 98 Atl. 575.

112.- -Defeasible Fee.-Where decree construed a will to give a fee defeasible on devisee's death "without living issue" and a subthe sequent order directed commissioner to convey to the devisee on behalf of the contingent remaindermen subject to reversion to them should the "devisee predecease them," the omission of the words "without living issue" was a palpable error, and the decree vests a defeasible fee subject to be defeated by death without such issue. Jenkins v. Dawes, Ky., 188 S. W. 304.

113. Dower.-A legacy to testator's widow of $3,000 out of the sale of lands "as her full and entire share of all personal and real estate" held given in lieu of dower.-Matthews v. Clark, S. C., 89 S. E. 471.

114.- -Intention.-Where a testator set apart one share of the residuary estate for the benefit of a cousin, who was to receive the annual net income for life, and from and after her decease to her children in equal shares until they shall respectively reach the age of 21 years, it was clearly the intention of the testatrix that the children of the cousin take a vested estate.-Fulton Trust Co. of New York v. Phillips, N. Y., 113 N. E. 558, 218 N. Y. 573. 115. Legacy.-A legacy of $1,000 to testator's wife's sister and daughter gave that amount to them jointly, or $500 each, and did not give a separate legacy of $1,000 to each.In re Howgood Estate, N. D., 159 N. W. 117.

116. Life Tenant.-A will in terms, "I want my son to have my entire interest in the estate of my father, and if he should die without heirs, I want it to go to whoever has been his best friend," grants fee simple in real estate upon death of a life tenant, who took under the will of testatrix's father.-Early v. Arnold, Va., 89 S. E. 900.

117.- -Survivorship. Where testatrix devised property to her adopted son, with provisions over in case of his death without issue or heirs, or of her survival, the son, having survived testatrix, is entitled to the land absolutely. Benedict v. Bonebrake, Pa., 98 Atl. 574.

Central Law Journal.

ST. LOUIS, MO., DECEMBER 1, 1916.

POWER OF COURTS IN REVIEWING RULINGS OF PUBLIC SERVICE COMMISSIONS.

There are perhaps fewer questions of more importance than that of defining the limitations of review by courts on appeal

from rulings by public service commissions. If boards are established to regulate public utilities, they ought to have a certain discretion and findings of facts which they have jurisdiction to make should have more than a mere presumption of correctness. If they have anything in the way of evidence in their support they ought to be sustained, or a court in overruling them becomes pro hac vice a substitute board.

New York Court of Appeals treats the question of an appeal from a public service commission's finding of a fact in its jurisdiction to make in a very interesting way, in reversing an overruling by the Supreme Court of the state in Appellate Division of the commission's finding, the opinion by the Court of Appeals being unanimous. People ex rel. v. McCall, 113 N. E. 795.

The question before the commission was whether a gas company should be compelled to extend its mains and supply gas to certain communities, and the commission directed this to be done. The Supreme Court, in Appellate Division, held that this order was, upon the whole, unreasonable.

The statute authorized the commission "to order reasonable improvements and extensions" by gas companies. The Supreme Court said that: "We have no doubt that under this law the question remains for the court to determine upon the review of the determination of the public service commis

sion whether the extension ordered was a reasonable extension."

The Court of Appeals said: "This statement of the law is quite likely to create a misapprehension as to the power of the court. The court has no power to substitute its own judgment of what is reasonable in place of the determination of the public service commission, and it can only annul the order of the commission for the violation of some rule of law."

The court goes on to say that: "The public service commissions were created by the legislature to perform very important functions in the community, namely, to regulate the great public service corporations of the state in the conduct of their business, and compel those corporations adequately to discharge their duties to the public and not to exact therefor excessive charges. It was assumed perhaps by the legislature that the members of the public service commissions would acquire special knowledge of the matters intrusted to them by experience and study, and that when the plan of their creation was fully developed they would prove efficient instrumentalities for dealing with the complex problems presented by the activities of these great corporations. It was

not intended that the courts should interfere with the commissions or review their determinations further than is necessary to keep them within the law and protect the constitutional rights of the corporations over which they were given control."

Further it was said: "The court of the Appellate Division did not therefore have the power to determine that the extension of relator's gas mains and pipes ordered by the public service commission was unreasonable in the sense that it was an unwise or inexpedient order, but only that it was unreasonable, if it was an unlawful, arbitrary or capricious exercise of power."

It was claimed that, as the court had under New York Code of Civil Procedure the right to set aside the verdict of a jury where upon all the evidence there was a preponderance of proof the other way, this

rule should be applied, but the court held this did not apply to substituting judgment of a court for that of a special tribunal.

The case is then reviewed to discover whether or not "there was any evidence to show" there was "an unlawful and arbitrary exercise of power" by the commission. It was said "there was no dispute as to the basic facts of the case," but the court in Appellate Division merely "summed up the proof" and expressed its opinion, where there was variation in estimates of witnesses as to cost of the extension, as to what that cost would be. It was said: "This is very far from showing that the order of the public service commission was simply an abitrary and capricious exercise of power."

We have carefully set forth the main facts in this case, and think what the Court of Appeals said in conclusion should be stated. This was that: "This decision, if allowed to stand, will seriously hamper the commissions in the discharge of their duties and go far toward defeating the efforts of the legislature to establish agencies to regulate the great public service corporations."

The manner in which these commissions may acquire information to guide them to their conclusions is in many respects not permissible in a trial before a court. For example, hearsay evidence may be admissible before a commission, when it would be rejected in a court. This gives them a wider range and carries the presumption, that, not only the scientific experience they will acquire shall be of benefit to them, but their common sense as well shall have a wider latitude for its play. Its cognizance, so to speak, is extended beyond that of judicial cognizance. The administration of their duties demands rather practical than technical knowledge. The members are, indeed, more like a jury than a court, but the large purpose of their creation removes them further from judicial control than a jury is removed, because proceedings before them are not in the presence of courts.

NOTES OF IMPORTANT DECISIONS.

FRATERNAL BENEFIT SOCIETY AMENDING BY-LAWS AS TO SICK BENEFITS. By Maine Supreme Judicial Court it has been held that, irrespective of what may be the law as to the right of a fraternal insurance society to amend its by-laws so as to increase its rates or to reduce its sick or death benefits, it cannot as to a member who has "begun to receive sick benefits, reduce the amount he is to receive." Mahen v. L'Union Lafayette, 98 Atl. 821.

The court said: "The question here is whether after a member has become ill and his right to sick benefits has attached, the society can defeat his right and repudiate its existing obligations by amending its by-laws. If so, it is an easy way to discharge liabilities. We think it cannot. Such an amendment is wholly unreasonable and void, as respects liabilities already incurred."

It must be conceded that the right to amend must work reasonably as to all members. While it may be true that a member entitled to sick benefits ought to have his status preserved as of the time sickness entitling him to benefits begins, yet the same would not be true as to death benefits not being changed merely because a member has become very old and infirm. Death is in the general contemplation as a certainty at some time, while as to sick benefits there is both uncertainty as to their being needed at all, and how long they may be needed. The beginning of a sickness should be held to mature the right, just as death matures a right. Change of sick benefits should be thought to apply only to members at the time in normal health.

PHYSICIANS AND SURGEONS-PRACTICING MEDICINE BY CHRISTIAN SCIENCE METHODS.-Under statute of New York forbidding the practice of medicine by anyone not duly licensed, it is also provided that the statute shall not be construed to affect the practice of the religious tenets of any church. It was shown in a prosecution against a Christian Science healer that he held himself out as a healer, kept an office with a sign on his door describing himself as a Christian Scientist. For resort to his office where prayer was said there was a price paid, "either as a compensation or as an honorarium." It was held that if the defendant was sincere and did not use his church as a shield to cover a business undertaking he

could not be convicted. People v. Cole, 113 N. E. 792, decided by New York Court of Appeals.

The opinion lays stress upon the statute stating that it shall not be construed to affect the religious tenets of any church. It is said: "It appears from the record that it is a tenet of the Christian Science Church that prayer to God will result in complete cure of particular diseases in a prescribed individual case. Healing would seem to be not only the prominent work of the church and its members, but the one distinctive belief around which the church organization is founded and sustained."

But what is the practice of a religious tenet? It is conforming one's conduct to what he believes. This means that a Christian Scientist may seek cure by prayer. It does not mean that another may hold himself out to cure someone else by praying for him. Nor does it include the preaching of immorality to others, as, for example, preaching to others that they should rise in rebellion to overthrow constituted authority.

Take, for example, Mormonism. One personally may believe in its polygamy tenet, but if he preaches to an assembly that they should practice marrying of as many people as they might wish and to resist with arms any interference with their God-given rights, he could be arrested for raising a riot. And if property were destroyed as a result of such incitement, it is hardly to be thought the loss would be deemed damnum absque injuria.

It seems to us the court erred in ruling that one has an inalienable right to interfere with health regulations by utilizing another's right 'o practice the tenets of his own religious belief. The interferer has no more right to appropriate the other's liberty of conscience to his own uses than he has to take his money from him by force or fraud.

JURISDICTION

MATRIMONIAL DOMICILE REMAINING IN STATE OF INNOCENT SPOUSE.-Perkins v. Perkins, 113 N. E. 841, decided by Supreme Judicial Court of Massachusetts, holds, that where husband and wife were married in that state and there established a matrimonial domicile, the husband cannot by deserting her and establishing a resi dence in another state, not for the purpose of obtaining a divorce, but in good faith, carry said domicile with him, so that the courts of the state to which he has removed can acquire

any jurisdiction of his action for divorce, his desertion of his wife being wrongful.

This proposition is stated to have been declared as clear under the decision in the Atherton case, 181.U. S. 155, and Thompson v. Thompson, 226 U. S. 551. It was said: "The act of desertion (by the husband) was the invitation of a course of conduct which ripened into a cause for divorce under our law after the lapse of three years. Although the husband might have broken that course of conduct at any time by return to the full performance of his marriage obligation, he did not do so, but pursued it to the end. He gave to the (wife) no actual notice of the pendency of the proceedings instituted by him in Georgia. She was ignorant of them and had in fact no opportunity to defend against them. If effect should be given to the Georgia divorce, the result would be that a marriage status established and maintained by wedding and cohabitation wholly in this commonwealth will be severed at the instance of a husband faithless to his marriage vows, he having removed from our jurisdiction and sought the interposition of the courts of another state without actual notice to or knowledge by his wife and she innocent of any wrong on her part, having continued to be domiciled in this commonwealth.*** Due regard to the rights of our own citizens forbids the giving of such effect to the judgment of a sister state."

The court here stresses two or three things which appear to us to be wholly irrelevant. First, if the matrimonial domicile remains wholly in Massachusetts, it ought to remain there, whether the wife were innocent or guilty of fault. Second, if constructive service was ineffectual to give jurisdiction to the Georgia court, because the wife was ignorant of its having been made, it ought not to be effectual by her having actually heard of it. If there was no actual jurisdiction she should not have been able by mere consent to give jurisdiction. This matrimonial status was the res of jurisdiction and parties, while able to consent to jurisdiction in personam, cannot give jurisdiction over the subject-matter of controversy. The Georgia court, ascertaining, if it did ascertain, that the matrimonial domicile was in Massachusetts, should not have entertained the cause, and then there would have been no question of recognition or not of a foreign decree depending upon whose fault it was. As it was, the Georgia court held the wife at fault and Massachusetts court held the other party at fault. If the Georgia court could pass on this question, its finding should be respected.

RIGHT OF MURDERER TO TAKE UNDER A WILL-CONSTRUING STATUTES OF INHERITANCE.

In 80 Central Law Journal, on page 363, et seq., I find an article entitled "Murderer Taking Under Will or by Inheritance." I have examined this article and its reasoning with a great deal of care, studied the cases cited, together with the cases taking a contrary view that have since been decided. The courts are in hopeless confusion in their reasoning, and do not seem to be able to throw any additional light on this perplexing legal problem. Is it not possible that the courts, in writing their opinions,

have in most cases overlooked this sound doctrine?

"When the interpretation of a statute, according to exact literal import of its words, would lead to absurd or mischievous consequences, or would thwart or contravene the manifest purpose of the legislature in its enactment, it should be construed according to its spirit and reason, disregarding or modifying, so far as necessary, the strict letter of the law."

In the case of Rector, etc., of Holy Trinity Church v. United States,1 an act of Congress prohibits the importation into this country of "any foreigners" under contract. to perform labor or service of any kind." The question arose as to its applicability to a clergyman who came to this country under contract to enter the service of a church rector. The court conceded that the case came within the letter of the law, but because it was not within the spirit and intent of the law, it was held that the act had no application to the case at bar. The court said: "It is familiar rule, that a thing may be within the statute, and yet not within the intention of the makers."

Justice Brewer, who afterward became one of the members of the Supreme Court of the United States, in Re Intoxicating Liquor Cases, had under consideration a

case involving the construction of a statute relating to the sale of intoxicating liquors. The statute provided as follows:

"All liquors mentioned in Section 1 of the Act, and all other liquors of mixtures thereof, by whatever name called, that will produce intoxication, shall be considered and held to be intoxicating liquor within the Act."

This law was held to exclude the preparation of lemon extract and other preparations when used for certain purposes, still the law did not by words exclude them, nor is there any room to exclude them when taking the statute by its four corners and reading its plain and clear provisions. The court, in reasoning as it did in order to construe the statute as it did, said:

"A thing which was within the intention. of the makers of the statute, is as much within the statute as if it were within the letter; and a thing within the letter of a statute is not within the statute unless it be within the intention of the makers."

Further on in the opinion we read:

"Doubtless the letter is first to be considered in order to determine the intent of the legislature, for the courts may not read a law simply as they wish it to be read. But other matters may also be considered, and among the evils sought to be remedied."

A statute in New York prohibited any sheriff or deputy from purchasing any property at an execution sale, and declared void all purchases so made. In an action in ejectment it appeared that certain premises had been sold by one deputy sheriff, on an execution issued under a judgment owned by another deputy of the same sheriff, and were bid off by the deputy who owned the judgment. The contention was made that the statute declared such sale void. Surely no plainer case could be found showing that the purchasing deputy was within the letter of the statute which was plain and clear as day. But the court held that the statute did not apply, because the manifest object of the law was to prevent abuse, and to prohibit sheriffs and their deputies in their official capacity from