operation. He readjusts his argument to lead to the conclusion, that courts should be prohibited from declaring statutes unconstitutional by a mere majority vote, and that the Federal Supreme Court should by constitutional provision be allowed to declare any statute unconstitutional only by a vote of at least seven out of the nine judges.

Chief Justice Walter Clark of North Carolina, in his recent discussion in the Virgina Law Review (Volume III, No. 3), and reprinted as a senate document last February (No. 308, 64th Congress, 1st Session), seems to have given up the Judicial Recall, either in the form of Recall of Judges, or Recall of Judicial Decisions, as a means of judicial correction or discipline: and he centers his argument upon a denial of the constitutional right of courts to declare statutes unconstitutional. In another recent discussion of the subject by Judge Clark, however, which for further circulation he has now (May 31, 1916) had printed as a United States Senate document, he impliedly approved of the Recall of Judges as a doctrine by which "the people have been forced to assert ultimate sovereignty," as against the "myth" that the courts have the power to set aside an act of Congress, or of a state legislature, as unconstitutional. Furthermore, he includes the Recall of Judicial Decisions as a "remedy" which is "less objectionable" than the remedy by the Recall of Judges. He impliedly approves the so-called "Ohio plan," which is the remedy urged by Judge Wanamaker,—that the unanimous, or more than a majority, decision of a supreme court be required to set aside a statute as unconstitutional. ("Some Myths of the Law," Michigan Law Review, November, 1914, page 26: U. S. Senate Document. No. 449, 64th Congress, 1st Session). Judge Clark's views are summarized by him as follows:

"Suffice it to say that the true basis of our government is that the people are capable of self-government. and that their will, fairly ascertained, shall control. We have never given to the judges the judicial veto' power. It has been assumed, but it cannot be maintained. It makes of the

courts small legislative bodies which may be appointed, or nominated, by the special interests. The question then is squarely presented which shall control-the interests' or the body of the people? One must know little of the temper of the American people if he believes that this myth can long survive the fierce light that is being shed upon it.

"The demand for reform in legal procedure and of the abuses incident to our

practice is insistent. It must be heeded. Their importance, however, is small compared with the necessity of abandoning the usurped power by which the courts have become legislative bodies, able and anxious too often to thwart the will of the people as to their public policies when this has ing their duly constituted agents for making been declared by them at the polls in select

their laws."

This adherence to the theory that the Judicial function of measuring the validity of statutes by the express rule of the constitution is an "usurped" power, has incited the New York State Bar Association, through its committee and under the tireless and very efficient leadership of Chairman Henry A. Forster, to compile and report the main arguments against the "usurpation" theory. Two such reports have been issued, entitled, "On the Duty of Courts to Refuse to Execute Statutes in Contravention of the Fundamental Law." The first report was presented to the State Bar Association on January 2223, 1915, and has been printed as an United States Senate document, (No. 941, 63rd Congress, 3d Session). The second report was presented on January 14-15, 1916. These reports are a complete answer to the "judicial usurpation" theory, if any further answer be needed than that given by Judge Marshall in his decision in Marbury v. Madison (1 Cranch, 137).

The plan of the American Judicature Society, which involves Judicial Recall features, was outlined in our last Report. The literature of that Society, issued during the past year, indicates an adherence to the objectionable features of its proposed reforms in the organization of the courts. Its

and the term to begin as soon as the repairs could be finished. Plaintiff accepted the proposition, paid the $600, and took the following receipt:

"Received of Mazie Burgess, check on Fidelity Trust Co. for six hundred ($600) dollars, when paid to apply on rent of house at 315 and 317 West 6th St., Kansas City, Missouri; rent to begin as soon as house can be vacated and repairs can be made."

Afterwards, and before the repairs were substantially finished and the term began, plain. tiff "repented" of her illegal intention to rent and maintain a bawdyhouse, threw up the contract and demanded back the $600, which defendant refused to return.

Defendant's theory is that the property was then occupied; that plaintiff asked that it be vacated and that repairs be made as a condition to her renting; that it was thereupon agreed that, if plaintiff would rent the property at $150 per month and pay four months' rent ($600) in advance, defendant would vacate the property and proceed to make the repairs with the money paid and that the term would begin when they were completed; that, in accordance with such contract, defendant vacated the property and proceeded with the repairs, and had substantially completed them when plaintiff demanded her money.

The law will sustain either theory, for in an executory illegal and immoral contract the law allows for repentance, and money paid thereon may be recovered back; but, if the contract upon which the money is paid has been performed, then the law will not aid the party who has expended money thereon to get it back. Skinner v. Henderson, 10 Mo. 205; Adams Express Co. v. Reno, 48 Mo. 265; Peters Shoe Co. v. Arnold, 82 Mo. App. 1, 6-9; White v. Gilleland, 93 Mo. App. 310; Cutshall v. McGowan, 98 Mo. App. 702, 73 S. W. 933; Vandolah v. McKee, 99 Mo. App. 342, 73 S. W. 233; Ullman v. St. Louis Fair Ass'n, 167 Mo. 272, 287, 66 S. W. 949, 56 L. R. A. 606; Congress v. Knowlton, 103 U. S. 49, 26 L. Ed. 347; Bernard v. Taylor, 23 Or. 416, 31 Pac. 968, 18 L. R. A. 859, 37 Am. St. Rep. 693.

It is not necessary to take up time or space by setting out the evidence. It will suffice to say that there was testimony which tended to support either theory, and the court gave instructions which covered these theories. When the principal instruction for plaintiff and for defendant are read together, there is no room to doubt that the jury fully understood what the issues were, and, under these instructions, the jury must have found that plaintiff did not

induce defendant or agree with it to make the repairs in consideration of which plaintiff would rent the property and pay $600 with which to make them.

It is a part of defendant's insistence that it did not rent the property for a bawdyhouse; but there was abundance of evidence tending to show that it did, and the court gave an instruction directly on that head, and the verdict settles the question.

Defendant contends that the contract was indivisible, and, therefore, if there existed any illegality, it affected the entire consideration. We do not see any ground for invoking this branch of the law under the evidence and finding of the jury.

It must be kept constantly in mind that defendant was intending to repair the house for itself, so as to put it in a tenantable condition for a house intended for bawdyhouse purposes. That is what defendant's agent repeatedly stated to plaintiff's agent. When that was done, plaintiff was to take the property, and she paid the advance payment as an assurance that she would take it for at least four months. Since the verdict, it cannot be said that the money was paid to be used in making repairs. No illegal transaction has been carried out. One was on foot, but (according to the jury) one of the parties refused to go on with it, and the law permits and encourages such refusal. Authorities, supra.

We think that Winters v. Cherry, 78 Mo. 344, and Versteeg v. Fruit Co., 158 Mo. App. 126, 138 S. W. 901, under the facts, are not applicable to this case.

There was no error in refusal of instructions for defendant. No. 5, on the subject of defendant's knowledge of the use plaintiff intended to put the house, was, for all practical purposes, covered by No. 1, which was given. No. 4 required as a condition to plaintiff's right to recover that the parties should be "left in the same condition financially so far as the transaction is concerned, that each was before such contract was made." The instruction would have had a direct tendency to confuse the jury. It was an unnecessary instruction in view of those given for each party. If the money was paid by plaintiff and the improvements made by defendant were as submitted by the principal instruction for each party, there could be no necessity for No. 4. There is, of course, a familiar branch of the law that, if one wishes to rescind a contract, he must put the other party in statu quo; but there is no room for application of that doctrine under the facts of this case as the jury has found them to be.

Refused instructions 3 and 6 were sufficiently covered by others given.

We have no right to disturb the judgment and it is affirmed. All concur.

NOTE-Recovery of Money or Property Paid or Transferred in Furtherance of Illegal Executory Contract.-The cases under this head generally fall under wagering contracts, such as betting on horse races or other events of uncertain nature. The law seems fairly well settled about these. things and the language employed in discussion of these cases is broad enough to embrace a case like the instant case, that is to say, generally this is so. Some of the language, however, shows the principle is specially applicable to wager cases. Thus in Edgar Fowler, 3 East 215, Lord Ellenborough said: "In illegal transactions the money has always been stopped while it is in transitu to the person entitled to receive it."

Spring Co. v. Knowlton, 103 U. S. 49, 26 L.. Ed. 350, is, however, a case not of wager, and a great array of cases are cited in support even that where there is only part performance of an illegal contract it may be disaffirmed, and money recovered back which has been paid on it. But the court said: 'It is to be observed that the making of the illegal contract was malum prohibitum and not malum in se. There is no moral turpitude in such a contract nor is it of itself fraudulent, however much it may afford facilities for fraud." There is no question at all discussed about parties being in pari delicto, except that the court says arguendo that: "The rule is applied in the great majority of the cases. even when the parties to the illegal contract are in pari delicto, the question which of the two parties is the more blamable being often difficult of solution and quite immaterial.”

The rule that parties are in pari delicto will prevent recovery where a contract is executed, will be restricted in its application, and relief will be granted to a party disaffirming, if there is anything short of complete performance that may be separable. Thus in Railroad v. Hirsch, 204 Fed. 849, 123 C. C. A. 145, a lease in carrying out an illegal contract could be disaffirmed as to a further term under an option. The court said: "We are unable to see why either party could not have retracted at the threshold of the new term, since he plainly could have done so at the beginning of the original term. The opening of the new term as well as of the original, would seem to have been an appropriate locus poenitentiae. It does not appear that any rights of third persons had intervened and, assuming that both parties were equally in the wrong, it is carrying the rule (in pari delicto, etc.) beyond the reason of its existence to refuse, at such a time and under such a contract as this, either to declare the law or grant purely negative relief; not to do this would as respects the new term in the instant case, bring to pass the very thing that the law forbids. The granting of such relief is not to enforce the contract; it is to prevent its renewal." This case, it is true, asked negative relief, that is to say, nullifying an option for a lease, but the language is far from limited.

In Pullman Palace Car Co. v. Central Transportation Co., 171 U. S. 138, 18 Sup. Ct. 808,

43 L. Ed. 108, it is said: "The right of recovery (of property) must rest on a disaffirmance of the (illegal) contract and it is permitted only because of a desire of the courts to do justice as far as possible under a void agreement and which in justice he ought to recover. But courts will not in such endeavor permit any recovery which will weaken the rule founded upon principles of public policy."

We see, then, that the rule of recovery is enforced not so much as a rule of right as one resting somewhat, at least, in the discretion of the court-not an arbitrary, but a wise discretion. C.

JETSAM AND FLOTSAM.

LAW FOR SUBMARINES.

The German Ambassador thinks that because the Deutschland has been decided to be a merchantman, therefore she is entitled to the same treatment as other merchantmen, including the right to be visited and searched before being treated summarily as a warship or prize. It is a case under international law, and is a case of what the lawyers call "first impression." That is, it is a case which never has happened before, and respecting which the law must be settled without reference to any code.

International law is common law, deduced from the customs of nations. It is based on acts which have been done and decisions which have been rendered upon them, and becomes law only upon acceptance by common consent. It is not possible for the lawyers to befog the issue by reference to conflicting precedents. There are none. They must be made by applying old principles to the new case, and every nation will have a voice in making the law. Not until the Deutschland gets into court will there be any authority regarding her status or the legality of her acts. Diplomats dispute about the law. Judges declare the law. They do so by looking into the reason of the case, not into their consciences, or their sense of loyalty. What is the "reason" regarding the status of this submersible boat as a cargo carrier?

She comes with a cargo of goods we want very much. That should not obscure our reasoning about the matter. She might come with a different cargo and might seek to land it in circumstances difficult for us to control its landing. It has been denied that there were diamonds in her cargo. But it is clear that she or another of her class might arrive under con

ditions of peace with a cargo seeking to evade our customs, and capable of evading them almost beyond our prevention. This submarine arrives on an errand of peace, but another of any nation might arrive under conditions of war, on a hostile errand against our ports or warships. Thus we have supposititious cases of a bribe to our interests, and of a threat to our laws in peace and to our safety in war. This suggests caution in following the German lead that there is only a single case of merchantman, and that the same law applies to all. The contrary suggestion here made is a strictly American view, the view which it is proper we should take in considering our policy as a neutral, inclining neither to England nor to Germany. The international view would be found only by a comparison of the views of all nations, both in peace and war, of neutrals and belligerents alike.

On such a broader view what should be the status of submarines? Should they enjoy the same freedom of the seas as belong to other traders? It has been decided that they ought not to have unlimited rights as warships, and thus one step has been taken toward limiting their rights as merchantmen. Can it be said that the Deutschland has demonstrated such commercial utility that the restriction upon the activity of her class would be an irreparable loss to the world? Is it not rather true that the world has more to gain by controlling the activities of submarines than by giving them the freedom of the seas which they have such capacity and adaptability for abusing? Would it not be to the advantage of the world that in war the submarines should be restricted to coast defense, and that in trade they should be forbidden unless licensed somewhat upon analogy with the carrying of concealed weapons? There exists no legislature which can pass such laws. If there are to be enough submarines to have any effect upon affairs the laws upon the subject will be found by punishing those that offend the basic principles of right.

Perhaps the British will sink a submarine merchantman upon suspicion, and then the question will arise whether that is murder or justifiable homicide. That might come to a decision in a British court. Conditions can be imagined in which the question might arise in the case of an American passenger in an American court.

The German point of view is entitled to consideration, but not to adoption without thought. The capacity of the submarine seems greater for evil than for good, either in peace or war, and the world is likely to be more ad

If

vantaged by strictness than by liberality. submarines were the sole possession of any nation they might be a deciding factor of strength for war or commerce which no one nation ought to have. Their possession by all nations is no more an advantage to any than the prohibition of possession to all would be an injury to any. Equality might be preserved alike by prohibition to all or by permission to all. It would seem that there are resources of civilization of the man-killing sort enough without further addition, at least until there is a demonstration of utility as well as of skill in construction and daring in navigation.-New York Times.

ITEMS OF PROFESSIONAL

INTEREST.

REPORT OF THE MEETING OF THE KENTUCKY BAR ASSOCIATION.

The State Bar Association of Kentucky met at the city of Louisville, July 6th and 7th.

There was a large attendance of lawyers, many of whom took part in the interesting discussions that were provoked by the reports and addresses. One interesting discussion arose over a remark by Attorney-General John C. Duffy, of Kentucky, that the most prolific sources of needless expenses are the unconsidered delays in the trial of cases whereby prisoners are kept in jail, jurors and witnesses summoned and paid and all at the expense of the State. Mr. Duffy contended that the State could save at least $150,000 per year if the commonwealth's attorneys and the courts would see to it that jurors and witnesses were promptly discharged when their services were not needed.

Judge Harry W. Robinson, of the Jefferson Criminal Court, grew somewhat enthusiastic over the prospect of replenishing the treasury of Kentucky, and proposed that judges be denied a three months' vacation in summer, as is usual in that State. Judge Robinson said:

"I do not believe the judge of any criminal court is entitled to a three months' holiday, while 100 or more of his fellows, innocent in the eyes of the law and of humanity until their guilt has been passed upon by a jury, languish in jail.”

Chief Justice Hobson, of Kentucky, delivered an interesting address on "Some Great Lawyers of Kentucky." Judge J. F. Gordon, of Madisonville, read a sprightly and instructive