advisability, and the wisdom of all legislation, subject to the veto of the governor and the referendum of the people, are subjects for legislative determination exclusively. The inexpediency, injustice or impropriety of a legislative act are not grounds upon which the Court may declare the act void. The remedy for such evils must be sought by an appeal to the justice and patriotism of the legislature itself."

The Ohio Supreme Court has stated the general rule of constitutional construction of acts passed by the legislature under the police power in strong and clear language. It should be the duty and the concern of the Courts to follow this rule with scrupulous care. Otherwise there will be stirred up in the popular mind a just resentment against what appears to be, not the enforcement of any specific constitutional restriction, but the imposition of the views of the Court upon the legislature with respect to matters which concern the public health and safety.

NOTES OF IMPORTANT DECISIONS.

WHEN PROPERTY IS STOLEN, IS IT ALSO DESTROYED, UNDER STATUTES MAKING MUNICIPALITIES LIABLE FOR DESTRUCTION OF PROPERTY BY RIOTERS?-To steal a thing is not to destroy it, declares the Massachusetts Supreme Court, in Yalenezian v. City of Boston, 131 N. E. 220.

This case was one of several actions of tort brought to recover three-fourths of the value of property lost by tradesmen in the recent policemen's strike in Boston. The statute under which the action was brought provided as follows:

"If property of the value of fifty dollars or more is destroyed, or if property is injured to that amount by twelve or more persons who are riotously or tumultously assembled, the city or town within which the property was situated shall, if the owner of such property uses all reasonable diligence to prevent its destruction or injury, and to procure the conviction of the offenders, be liable to indemnify the owner thereof in an action of tort to the amount of three-fourths of the value of the property destroyed or of the amount of such injury thereto, and may recover the same against any or all of the persons who destroyed or injured such property."

The lower court decided in favor of the plaintiff, but the Supreme Court reversed the judgment on the ground that it was not proven that

the property lost was destroyed or injured, but that on the contrary the evidence seemed to show that the property had been stoien. On this point, the Court said:

"A theft of property does not signify that the thing stolen has been destroyed or injured; it imparts only an injury to the possessory right of the general or special owner to use and enjoy the thing which is capable of being stolen, by taking and carrying it way. By theft the owner does not lose the title or right to possession of the stolen property. He may retake it whenever and wherever he can find. it; and he can have for his assistance any force of the criminal and civil law. The statute awards compensation within its terms, to owners of property destroyed or injured as a matter of favor, of public policy and not of right. It follows that there can be no incongruity in denying compensation for injury to property and property rights which are without the purview of the statute."

It seems to us that the Massachusetts Court was too meticulous in the construction of the words "injured" and "destroyed." To steal a thing is to destroy one's property right in it. So far as the owner is concerned, it is immaterial to him whether the physical object is destroyed or not; his property in it is destroyed when his rights of user are taken away. Property in a thing consists of the bundle of rights in such things which the law permits the owner thereof to enjoy. Therefore, "property" in a thing is destroyed even when the thing itself remains unaffected. This argument is no more refined than that which the Court uses to save the City of Boston from a just liability under the statute quoted.

The construction we put on these words is supported by the decisions of other Courts construing similar statutes. Baltimore v. Poultney & Trimble, 25 Md. 107; Sarles v. New York, 47 Barb. (N. Y.) 447; Spring Valley Coal Co. v. Spring Valley, 65 Ill. App. 571; Solomon v. Kingston, 24 Hun. (N. Y.) 562. In the last case, Learned, P. J., said:

"The evident meaning of the act* * * is to compensate persons who suffer in their property by reason of mobs and riots. It could make no difference whether the rioters actually destroyed the personal property on the premises of Solomon, or whether they took it out of his premises and then actually destroyed it, and whether they destroyed the boots and shoes by cutting them to pieces or by wearing them out would matter very little to the plaintiff. We think that the fair meaning of the act is that given in Sarles v. New York (47 Barb. 447); that the property was destroyed as to the plaintiff when the rioters carried it off. Plunder, as well as wanton injury, is usually the work of such rioters; and the result to the injured person is the same from either wrongdoing."

It seems to us that the small crumb of comfort thrown out to the plaintiff in the opinion of the Massachusetts Court that the plaintiff can "retake" the property and "have for his assistance any force of the criminal and civil law" is not only illogical, but adds insult to his injury. If he had had the proper assistance of the law in the form of police protection against the rioters he would not have suffered his loss. It is small comfort to tell him to go out and find his property and that the law will be more efficient in securing its return than it was in preventing its taking. Why should not the city pay the loss under the statute and then by subrogation assume the right of the owner to find and apprehend the thief and recover the property?

HOW THE CHICAGO BAR ASSOCIATION WALLOPED THE SPOILSMEN IS THIS ENOUGH?

Chicago has recently passed through a judicial election which has no parallel in the history of that city. Its results were a great surprise to the politically wise. In fact, the circumstances were so unusual and the results so unlooked for by the average observer that the election not only attracted nation-wide attention but was observed with interest and widely commented upon in the press of foreign countries.

In its activity in this campaign the Chicago Bar Association broke all its precedents. For many years past its practice had been before each judicial election to appoint a special committee on candidates to investigate and report to the members upon the fitness of the various candidates nominated by the political parties; the purpose being to enable the members of the Association to vote intelligently at a Bar primary. But experience had shown that if the Bar Association waited until after the party nominations had been made before undertaking to exercise its influence, it was often too late to accomplish any great good because the nominations on both tickets were unsatisfactory. For obvious reasons

that plan would have been unavailing in this election.

Twenty judges of the Circuit Court (the whole Bench) were to be elected. The Bench as a whole (with a few exceptions) was satisfactory. Five of the twenty incumbents were Democrats and the other fifteen Republicans. The Democratic organization was disorganized and discour aged. The dominant Republican organiza tion, known as the city hall faction, was well organized, full of recent victories, confident and aggressive, and plentifully supplied with the means of warfare. All available information led to the belief that the purpose of this city hall faction was to give no consideration whatsoever to long and satisfactory service on the bench, but to oust all of the twenty judges except two who already acknowledged the suzerainty of the city hall, and to fill their places with eighteen others who would owe their seats solely to that organization, and who were either of unknown fitness or of known unfitness for the bench. This enterprise was, of course, a direct assault upon the cardinal principles of the Bar Association, namely, the preservation of the independence and integrity of the bench, and the proper administration of justice. It would have been startling enough under any circumstances but was doubly so now, and for these reasons: this dominant or city hall faction of the Republican party had twice elected its mayor, and through a bi-partisan system of patronage controlled a Democratic city council. It had elected a governor whom many citizens feared. It had secured control of the Chicago Sanitary District, with its vast bonding power, unlimited by the referendum which limits practically every. other debt-creating municipality of the State. It would, by electing its ticket for the Circuit Bench, control the appointment of the South Park Commissioners and the expenditure of $20,000,000 already voted for the construction of a park by filling in Lake Michigan south of Grant Park, and

also of a further sum of perhaps $50,000,000 which the Commissioners would ultimately spend in completing that great work, It had secured the election of one of its chief members as state's attorney of Cook County, in whose hands was vested the practical control of the enforcement of criminal law. It would, by electing its ticket for the Circuit Court, control the appointment of the jury commissioners; and such control would complete its domination of the machinery for the enforcement of the criminal law. To a suspicious minded or fearsome citizen, these last facts were given a sinister aspect by the contract made by the city administration (in the teeth of a contrary order by the city council) with five so-called real estate experts-the most of whom were not expert-to pay these men nearly $5,000,000 out of a total bond issue of $26,000,000, for valuing the damages to private property by the construction of certain public improvements-between two and three million dollars of which vast sum has already been paid.

To block the triumphant march of this confident host did seem a hopeless enterprise, and every one whose political judgment was worth anything said that it was. Most certainly the undertaking was not alluring to lawyers whose clients' interests were largely dependent upon their own good standing at court and in the city hall. But some one had to take the lead and step into the open.

It happened that about a year ago the committee on candidates above referred to of the Chicago Bar Association was made a permanent committee, in the hope that it might thereby wield more influence; and with the hope of further enhancing the influence of the committee, it was composed of nine ex-presidents of the Association, the president also being a member ex officio. Mr. John R. Montgomery, the president of the Association, assumed a very active part in the work of the committee. This committee began work last fall and spent

several rather diligent months endeavoring to influence the party managers on both sides to make up acceptable tickets. And while still engaged in this activity it suddenly woke up to the situation herein-above depicted.

The committee promptly called a meeting of the Democratic organization and the various factions of the Republican party, with a view of seeing if some agreement could not be reached which would result in saving the best part of the existing bench, and save the bench as a whole from being degraded to the position of a useful adjunct of a political combination. Everybody responded except the city hall; that fact confirmed in our minds the rumor that the city hall faction proposed to take possession of the entire bench for its own purposes. The committee then strongly urged this plan: that a full ticket be selected at a primary to be conducted by the Chicago Bar Association, at which all lawyers of Cook county should have a vote, and that the ticket so chosen should be supported and nominated by the Republican factions other than the city hall and by the Democratic convention. It was believed that such a primary would result in re-naming all but a very few of the sitting judges, and would produce the strongest possible ticket. The plan met with the hearty approval of nearly all of the political leaders who participated in the conferences, but they were not unanimous and it was therefore discarded as not feasible.

The committee then urged the Democratic managers to place on the ballot under the Democratic column all of the sitting judges, whether Republicans or Democrats, who were willing to run on that ticket. We knew that the two members of the Bench who owed allegiance to the city hall would not accept such a nomination; we believed that all the others would be satisfactory to the great majority of the bar. To this plan the Democratic managers assented, and the factions of the Republican party other than the city hall faction agreed

to give such a ticket their whole support. One of the Kepubucan sitting judges declined to run on that ticket. And the city hall taction, foreseeing some slight danger in a coalition ticket, induced three satistactory members of the Bench to accept nominations upon its ticket. This placed upon the city hall ticket five sitting judges and fifteen new men-ample for their purposes. The Democratic managers placed upon their ticket the five sitting Democratic judges, the nine remaining Republican judges, a Republican judge of the Municipal Court, and five new Democratic nominees, one of whom was a sitting judge of the Municipal Court. The ticket thus named was fairly satisfactory to the Bar Association committee, who believed that the ticket as a whole merited the support of the bar, and that those men if elected would not submit either in making appointments or in the discharge of their judicial duties to the dictates of any ring or of any official power; and that those considerations were more weighty at that moment than the retention in office of two or three satisfactory judges who chose to cast their lot. with the raiders, but who could in no way thwart their plans, whatever they might be. The committee believed to a man that there was only one possible chance of heading off this contemplated raid upon the Bench, and that was by uniting all those opposed to such an enterprise in support of one ticket as a whole. But neither the committee nor the board of managers of the Association felt that the Association should or could be committed to one ticket as a whole without a referendum vote. The committee therefore recommended and the board of managers promptly decided, that the question be submitted to the membership, whether the Association should support one ticket as a whole, and, if so, which ticket; or whether on the other hand it should pursue the long standing custom of holding a bar primary upon both tickets. The membership overwhelmingly supported the board of managers and the committee,

and voted nine to one in favor of the coalition ticket as against the city hall ticket. This decisive vote was confirmed by a vote of the Chicago lawyers at large at a primary conducted by the Lawyers' Association. The cause was taken up by the two strongest newspapers. It was most powerfully supported by the Chicago Woman's Club, the Woman's City Club, and various other organizations, both of the men and of the women voters. The Chicago Bar Association alone raised about $65,000 for propaganda purposes. The funds at the disposal of the various organizations supporting the coalition ticket were insignificant as compared with the funds at the disposal of the city hall; but they were sufficient. The campaign gathered power and momentum as it sped along. And be it said to the everlasting credit of the lawyers of Chicago, they did not fear or hesitate to openly align themselves against this proposed assault upon the Bench, even though they believed as the great majority of them certainly did, that the assault would be unsuccessful. And surely that belief was not unreasonable. Aside from the facts which I have mentioned above, this was purely a judicial campaign, which ordinarily excites but little public interest. The average voter as a rule knows next to nothing about the judicial candidates, and cares less. Purely judicial elections are ordinarily won by the party with the best organization. Eighteen per cent or less of the total vote has won judicial elections. In this case the city hall Republican organization, with its vast number of office holders, could deliver at the polls in obedience to its commands nearly if not quite twenty-five per cent of the total voting population; that would be sufficient in the usual case to utterly overwhelm any opposition. But in this instance, so thoroughly did the voters become aroused, sixty-five per cent went to the polls and the victory was decisive.

But does this most fortunate result establish the excellence of our present system, in a great metropolitan center like Chi

cago, of choosing our judges? In my humble judgment it does not. It was only when the city hall ran up the black flag that we had any chance of so arousing the voters as to get out fifty per cent of the vote. And with a less total vote than that the city hall would have cornered the day. There was a great principle involved in this election, and the people can be aroused in support of a vital principle. But how often does that situation arise in a judicial election?

The people had mighty little to do with the selection of the individuals. A little coterie of men from the city hall, sitting around one table, named one slate; another little coterie, sitting about another table, named another slate. It happened that one set of men was plainly bent upon using the bench for the control of public funds and public offices, and perhaps for much more sinister purposes; and the voters very properly ignored the fact that a few worthy men lent their good names and entrusted their official fortunes to that enterprise. Individual candidates were scarcely discussed. The average voter knew almost nothing of the relative merits of the candidates as proper judicial timber

A few days after the election, pursuant to an employment by the Association of Commerce long antedating the election, I went to Springfield to argue before the Senate Committee against the Mayor's so-called five-cent traction district bill under which he proposed to pay a part or all of the street car fares of Chicago's permanent and transient population by taxation of private property, the exact share to be thus paid to be fixed by a popular vote. The Mayor appeared on the other side, accompanied by a well filled gallery from the city hall. Instead of attacking what I said, he attacked me; he described me as the man who in the constitutional convention a year ago proposed that the Cook county judges be named by the Governor sitting in Springfield. "He thinks," said the Mayor, "that the people of Cook county are not capable

of electing their own judges." I interrupted, saying that he was mistaken; that I thought the people of Cook county were eminently qualified to choose their own judges. "Oh," he said in manifest surprise, "you think that since last Monday?" I said, "I certainly do."

Of course, the people of Cook county are capable of choosing their own judges, if they will give the problem the time and attention it requires. I venture to say that any ten men and women of Cook county, of character and public spirit, whatever be their occupations, could if they gave sufficient time and study to the problem, choose one or a dozen satisfactory judges to serve upon our bench. But they would have to devote to the problem a fair proportion of their entire time, and they would have to be paid for their time, if like the ordinary citizen they were obliged to work for a living. But when we ask a million voters to select seventy-five judges from among two or three times that number of candidatespresented by individuals responsible to no one-not one voter in 10,000 (to speak with great moderation) has sufficient knowledge of all the candidates to make an intelligent selection; and the result is simply and clearly haphazard. It is no exaggeration to say that equally good results could be secured if the judges were chosen by lot from the Chicago Bar at large. Indeed it is the deliberate judgment of able and level-headed men in Chicago who have made a very careful study of the administration of the criminal law in this city, that such choice by lot of the judges of the Criminal Court would produce better results.

When a burden is placed upon the shoulders of the voters which they cannot discharge, they simply default. With our vast population, and the great number of judges to be chosen, the average voter realizes that he can exercise no intelligent choice; moreover, he has no expectation of getting into court, and he takes little interest in a judicial election. Those who vote in a purely