devotion to the right course no matter at what sacrifice, and by his kindly and modest nature, as sagacious as it was simple; who in his eightieth year on that last day accomplished a full day's labor, and whose contributions to legal learning as a writer, teacher and reorganizer entitles him to rank as one of the great masters of the law.

Voluntary Assumption of Risk.-FRANCIS H. BOHLEN. This article is in two parts. A notice will be given under the December reviews.

Public Esthetics.-WILBUR LARREMORE. Previous to the decision in the recent case of the United States v. Gettysburg El. Ry. Co., 160 U. S. 668, it seems to have been doubtful whether the federal government could exercise the right of eminent domain for anything beyond strictly utilitarian ends, such as the acquirement of land for custom houses, post offices, etc. In that case it was held that an appropriation by Congress for locating and preserving the lines of battle at Gettysburg was an appropriation for public use, and that the lands of individuals might be taken under the right of eminent domain, for that purpose.

The joint international commission for the preservation of Niagara Falls has evoked opinions from the Attorney General and recommendations by the President which support the federal right to intervene on purely æsthetic grounds. The writer suggests that under the decision above referred to, the Supreme Court would sanction federal action with regard to the Palisades of the Hudson.

It appears, at least in New York, that the right to protect and promote æsthetic ends on public property, whether buildings, streets or parks is well established, and he quotes at length from Justice Scott's opinion in Tompkins v. Pallas, 47 N. Y. Misc. 309, where the use of a fence around a park for advertising purposes was enjoined. But the real legal crux arises as to the control of private property in the interest of the general sense of beauty. The only actual decision within the writer's knowledge is the Coply Square Case, Attorney General v. Williams, 174 Mass. 476. The validity of a legislative act of Massachusetts limiting the height of buildings on the street adjoining Coply Square, Boston, upon making suitable compensation to the owners, was recognized. Mr. Freund, in his work on Police Power, says that if that power is adequate to restrain offensive noises and odors, a similar protection to the eye would not establish a new principle.

A Study in the Law of Torts.—A. INGLIS CLARK. This is a discussion of a case where various tort fensors were defendants in an action brought for injury to real property, by the deposit of tailings from tin mines situated on a river passing and at times overflowing the property of the plaintiff. It appeared that tailings from one mine would not have caused any appreciable injury, and that the tailings from the mines of all the defendants would not have been injurious unless those from others, mines of owners not made defendants, had contributed to the amount carried by the stream. A consideration of the questions arising from this condition is had, and the relative rights of injunction and compensation discussed. No American cases are referred to.

DECEMBER. Voluntary Assumption of Risk.-FRANCIS H.

BOHLEN. The writer's first thesis is to the effect that the maxim volenti non fit injuria, whether or not it be applied to relieve a defendant where his relation to the plaintiff is that of employer, is not based upon the recognition of any contractual relation between the parties. There is no need of finding that there is any implied term in the contract, for the doctrine applies whether the relation is contractual or not. The maxim "is a true expression of the individualistic tendency of the common law, which, proceeding from the people and asserting their liberties, naturally regards the freedom of individual action as the keystone of the whole structure." Considering that great class of cases where this doctrine does not constitute a defense, as where a traveller uses a highway known to be dangerous, there being no other convenient safer way to reach his destination; or where a tenant knowingly uses dangerous stairs or halls under the control of the landlord; or where a passenger knowing of some slight imperfection nevertheless uses the common carrier's defective means of egress or access; or where a land-owner's premises have been rendered dangerous by another's wrongful act, he, nevertheless braves the danger, the writer finds that the doctrine does not apply because the plaintiff cannot be said to have acted voluntaily. He is coerced by the circumstances which the defendant's wrong has created. That the so-called fellow-servant rule was based on the fiction that the acceptance of the risks arising from the acts of a fellow-servat, formed an implied term of the contract of living, the writer admits, but he sees no greater reason for the resort to this fiction in one case than the other. Upon the passage of the Employer's Liability Act of 1880, the question at once arose whether it has succeeded in making the master liable when the defect caus

The act

ing the injury was known or obvious to the workmen. provides "that the workmen shall have the same right of compensation and remedies as if the workman had not been a workman or in the service of the employer." In one of the earlier cases (Thomas v. Quartermain, 18 Q. B. D. 485) it was held by Bowen, L. J., that the act simply deprived the employer of the right to set up the fellow-servant rule, as the defense of voluntary assumption of risk was not peculiar to the relations of master and servant.

It appears that the cases are somewhat at variance on this question, and the elaborate analysis which the author undertakes can scarcely be condensed in this review. On the whole, the author feels that the intention of Parliament was to deprive the master of both of these defenses, and the law seems to be working out in that direction. The leading cases are Yarmouth v. France, 19 Q. B. D., 647; Smith v. Baker (1891) A. C., 325. The authorities in various American jurisdictions are referred to, and it is pointed out that the cases in the two jurisdictions proceed upon different theories due to the difference in conditions. In England the servant's necessity has finally become to be regarded as destructive of his free will while in America, as yet, there is normally no dearth of work for competent workmen.

Executive Judgment and Executive Legislation. EDMUND M. PARKER. How far the decisions of executive officers are conclusive and to what extent and in what cases their decisions are reviewable by the court are questions important under our system of government, and the writer here notes the unsatisfactory character of the decisions relating thereto. The following cases are discussed: Oil Company v. Hitchcock, 190 U. S. 316; Miller v. Raum, 135 U. S. 200; Bates v. Paine, 195 U. S. 104; Ju Toy Case, 198 U. S. 253; Commonwealth v. Sisson, 189 Mass. 247; Eller v. Smith, 5 Gray 121; Nelson v. State Board of Health, 186 Mass. 330; Miller v. Horton, 152 Mass. 540. The writer after considering these cases certainly supports his proposition that the decisions as to this question are unsatisfactory.

The Power of Congress to Prescribe Railroad Rates. FRANK W. HACKETT. Another contribution to the increasing bulk of writing on this question, considering in particular the recognized power of a state to interfere and fix the charges for freight and passengers of a railroad company, and the relation of this power to the power of Congress to prescribe rates.

E. E. W.

The Fraternity.

Hurrah! The new Catalogue is in press. Write the Secretary for one.

What is your chapter doing about its library? Get a good committee in charge of it.

The total membership of Phi Delta Phi is 8,087; that of the American Bar Association is 2,021.

The letters of Ranney and Green chapters, in this issue, show conditions of chapter work and activity that may well be followed.

The time is right for reviving Osgood Chapter at Toronto. We need the chapter and the members of Daniels Chapter at Buffalo are willing to do it. Why is it not done?

Chapter papers and addresses and theses of members suitable for publishing are solicited by the editors. It will help your chapter and the BRIEF to send them.

Harlan Chapter at Wisconsin, suspended by the Council last winter because of a legacy of unpaid dues of former members, not only paid the indebtedness of some $300 within six weeks, but maintains a house for the first time since it was organized.

The letter of the Chicago Alumnus Club in this issue shows unprecedented ectivity and success. Eleven of its members stood for judicial or related positions at the November election, and seven of them were elected. Two others were elected to other positions, one being to Congress.

The Evarts Law Club, of the Brooklyn Law School, and the Ballinger Law Club, of the University of Washington, have maintained their organizations since 1903 and since then have been waiting for action on their petitions. It is not right that they should be kept waiting longer and unless a convention is held this winter, the vote of the chapters on the petitions should be taken as provided by the Constitution. A law club at the University of West Virginia is now preparing a petition.

Last February the American Law School Review, edited by Prof. A. F. Mason, Dillon, and published by the West Publishing Co., offered fourteen prizes to American undergraduate law students for the best brief submitted on stated subjects, a committee of prominent lawyers to award the prizes. The winners, announced in November, shows the high character of Phi Delta Phi scholarship for William E. Billings, Miller, is first; O. L. McCaskill, Douglas, is second; Leon P. Lewis, Douglas, is third and George W. Martin, Conkling, is eighth.

CHAPTER Dues.

The Council, by its circular dated November 24, has again emphasized that the relations between the chapters and the Treasurer must be conducted strictly on business principles. The circular calls attention to the Council's resolution of last year which was printed in full in this volume of the BRIEF at page 154 and which provides that the initiates of any chapter owing back dues shall not be enrolled as members until such dues were paid the Treasurer in full, and cites the Constitution to the effect that the dues of returning members and initiates shall be paid the Treasurer within thirty days after such return or initiation. It then rules that remittances from chapters shall be applied first to the dues of returning members, which shall be paid in full before any credit or enrollment is given to initiates, and that such chapters as owe dues for the year 1905-6 are liable to suspension without further notice.

The

The position the Council takes in the circular is right. Fraternity ran so many years with loose business methods in vogue that a financial statement from the Treasurer was received by many chapters as a joke. The statements were unanswered and chapters. remitted the nominal dues when and as they pleased and the Treasurer's reports at the conventions uniformly listed arrearages of almost every chapter from one to five years.

Shortly after the last convention the chapters found that they had chosen a Council that expected them to observe their obligations to the Treasurer. It was difficult for chapters that had acquired a custom of spending initiation fees on banquets attended by the older members without charge to return to "simple life" and set apart the initiates' dues to the Treasurer before the rest was spent riotously. And it was more difficult for chapters to pay arrearages caused by the good times of their former members. But the convention refused to allow repudiation, and pursuant to its resolutions the Council exercised its power of suspension. The chapters have in part