The question remains as to the degree of control the court may exercise over spectators at a trial without infringing the constitutional requirement. It is doubtless the duty of the court to prevent the admission of so many persons as will physically obstruct the efficient administration of the proceeding. 10 Provided that the court-room has been selected with a view to the reasonable accommodation of the public, it would seem that the attendance could be limited to the seating capacity of the room. But it is conceived that a public trial means more than one which will give the protection of publicity to the trial itself. The traditional idea of the open court is that of one to which the citizen could freely go. Accordingly, the not uncommon practice of locking the doors during the examination of each witness would almost seem a violation of the provision. It would seem also that the plan of admission by tickets good for limited periods would necessarily be objectionable to this interpretation of the provision, besides offering a ready opportunity for improper exclusion.12 The results of an open court, however, are less uniformly desirable under modern conditions. It is worthy of note that the constitutions of a few states do not expressly provide for a public trial,18 and that in at least one of these states a statute provides that the trial of certain offenses be held behind closed doors.11

11

1

It often becomes necessary to

8

LICENSE FEES AND FRANCHISE TAXES. · decide whether a so-called license fee is in reality a license, or must be regarded as a tax. It is established that a condition precedent to regarding the imposition as a license is that some privilege be conferred which it was within the power of the state to withhold. Some courts maintain that even so the assessment cannot be regarded as a license if it is more than sufficient to compensate for the cost of issuing the license and of the necessary control over the business.2 Other jurisdictions take the opposite view and hold that, so long as a privilege is conferred, it makes no difference how far the return to the state exceeds the cost. Still other courts, though ordinarily recognizing the first view, make a distinction in the case of occupations that are not regarded as useful or beneficial, and here the levy is regarded as a license, though the bare cost to the state may be exceeded.* A further modification of the first view is that the incidental expenses incurred by the state because of the granting of the license may be taken into consideration; and under this head would be included the expenses consequent upon increased police service necessitated by the granting of a right to sell liquor. It is hard to tell, under this reasoning, where to draw the line, for one might keep on finding incidental consequences indefinitely. It is, in fact, impossible to lay down any hard and fast rule. The nature

10 Myers v. State, 97 Ga. 76, 99.

11 But see Stone v. People, 3 Ill. 326.

12 Contra, Jackson v. Com., 100 Ky. 239.

18 Massachusetts, New York.

14 People v. Hall, 51 N. Y. App. Div. 57.

1 N. Hudson Co. Ry. Co. v. Hoboken, 41 N. J. L. 71; Chilvers v. People, 1I Mich. 43.

2 People v. Jarvis, 19 N. Y. App. Div. 466; State v. Angelo, 71 N. H. 224.

8 State v. Bixman, 162 Mo. I,

4 See State v. Bean, 91 N. C. 554, 559.

6 Cooley, Taxation, 3 ed., 1142.

of the business, the convenience or inconvenience to the public caused by granting the privilege, and the cost of issuing the license, together with any cost for the inspection of the business afterwards, are all matters to be considered; but they should rather be regarded merely as evidence to show what the real purpose and intent back of the assessment are. The fundamental consideration in each case must be to determine whether the main object of the levy is regulation or revenue. If it is for the first purpose, it should be regarded as a license, even though a considerable return is netted to the state; and if it is for the second, it should be considered as a tax, even though there may incidentally be some regulation. Examples of the assessment for regulation are the liquor license, and the theatre license. An illustration of the second class is a franchise tax upon an ordinary manufacturing corporation, which has recently been held by the United States Supreme Court to be a tax within the section of the Bankruptcy Act giving a preference to a state in the collection of taxes. State of New Jersey v. Anderson, Dec. 10, 1906. In proportion as the need of regulation and the inconvenience to the public caused by carrying on the business may be large, so may the return to the state in the shape of revenue be considerable without the assessment being regarded as an exercise of the taxing power. What might, therefore, be a license under one state of facts, might amount to a tax under another. The hopeless conflict in the cases on this point is seeming rather than real, for the question, as largely one of fact, may be legitimately construed in different ways.

RECENT CASES.

BAILMENTS BAILOR AND BAILEE LIABILITY OF SHOPKEEPER FOR PROPERTY of Customers. The plaintiff called at the defendants' store to purchase a vest. The clerk, being busy, told the plaintiff where the vests were piled, and suggested that he select one and try it on. After the plaintiff had done so he discovered that his own vest was gone. Held, that the judgment of the lower court giving the plaintiff the value of the vest and its contents cannot be sustained, since it appears the loss occurred through the negligence of the plaintiff. Wamser v. Browning, King & Co., 36 N. Y. L. J. 1283 (Ct. App., Jan. 8, 1907).

When it is a necessary incident to the business that the customer temporarily lay aside certain property, the shopkeeper impliedly assumes the custody of the goods as a bailee, owing a duty of reasonable care. Thus a customer has recovered for garments laid aside, at the request of the clerk and in his presence, in order that other garments might be tried on. Bunnell v. Stern, 122 N. Y. 539; contra, Rea v. Simmons, 141 Mass. 561. That the presence of the clerk or the express invitation is not always necessary to give recovery is shown by the cases where recovery has been allowed for garments left in a bath house or in a barber shop. Bird v. Everard, 23 N. Y. Supp. 1008; Dilberto v. Harris, 95 Ga. 571. Of course, if the plaintiff has been guilty of contributory negligence he cannot recover. Trowbridge v. Schriever, 5 Daly (N. Y.) II. In the principal case the absence of the clerk would seem to be important only as tending to show negligence on the part of the plaintiff. And it seems the question of negligence should be left to the jury, and not summarily presumed, as was apparently done here. Cf. Hunter v. Reed, 12 Pa. Super. Ct. 112.

BANKRUPTCY - PREFERENCES PAYMENT OF SALARY OF OFFICER BY INSOLVENT CORPORATION.-The petitioners sought to have the defendant corporation adjudged bankrupt because the corporation, while insolvent, used part of its assets to pay the salary of its president. Held, that the order adjudicating the corporation bankrupt be reversed. Richmond, etc., Co. v. Allen, 148 Fed. Rep. 657 C. C. A., Fourth Circ.).

By the weight of authority the payment of wages to a "workman, clerk, or servant" is not a preference. Matter of Read, 7 Am. B. Rep. 111. But a corporation's president is not a "workman, clerk, or servant." In re Carolina Cooperage Co., 96 Fed. Rep. 950. So he must be considered simply as a general creditor in deciding whether he received too large a percentage. An insolvent may transfer property in exchange for a present consideration without giving a preference under § 60 a of the Bankruptcy Act, but not in payment of a debt. In re Wolf, 98 Fed. Rep. 84. Strictly the payment of a salary, from its nature, can never be a present exchange; one party, generally the employee, must give credit. It may not be going too far, however, to hold that a man who is paid weekly, for example, hands over a completed week's services at the end of the week, and receives his salary in present exchange. But the payment of a prior week's salary must be considered a preference. So the petitioners, in not proving that the payment was for salary past due, did not show sufficient facts to warrant the order of adjudication.

BANKS AND BANKING - COLLECTIONS - DRAWEE'S RECOVERY AGAINST AGENT COLLECTING CHECK WITH FORGED INDORSEMENT. - The wrongful holder of a check, drawn on the plaintiff, erased the name of the payee, wrote in his own, raised the amount, and deposited the check with the defendant to collect. The defendant received payment from the plaintiff, and the depositor drew out part of the money. Both the defendant and the plaintiff were negligent in not detecting the forgery, though the defendant acted in good faith. The plaintiff sued for the whole amount paid to the defendant. Held, that only the amount not yet paid out by the defendant can be recovered. Union Bank of Canada v. Dominion Bank, 4 West. L. Rep. 407 (Manitoba, Oct. 22, 1906).

Whether a drawee can recover against the collecting agent of a holder of a raised check, or of a check under a forged indorsement, for payment made to him while acting in good faith, depends on the character of the agency. If the agency was disclosed, payment over by the agent to his principal is a defense. Nat'l Park Bank v. Seaboard Bank, 114 N. Y. 28; United States v. American Exch. Nat'l Bank, 70 Fed. Rep. 232. If it was undisclosed, payment over is no defense. Minneapolis Nat'l Bank v. Holyoke Nat'l Bank, 182 Mass. 130. Here, in not. passing on the doubtful character of the defendant's agency, the court neglected the established test for deciding whether recovery should be for only the amount still in the defendant's possession or for the whole sum. Since the agent of an undisclosed principal is liable independently of bad faith in paying over to his principal, negligence in the drawee does not excuse the agent, if negligent also. Merchants' Bank v. McIntyre, 2 Sandf. (N. Y.) 431. If the agency was disclosed, such mutual negligence should not, on principle, make the agent liable. The little authority, however, is contrary. Koontz v. Central Nat'l Bank, 51 Mo. 275. But this errs in not seeing that, the equities being equal, the loss should lie where it falls. See Continental Nat'l Bank v. Tradesmen's Nat'l Bank, 55 N. Y. Supp. 545.

BILLS AND Notes · PURCHASERS FOR VALUE WITHOUT NOTICE - GAMBLING DEBTS. The plaintiff was an innocent purchaser for value before maturity of a negotiable promissory note given in payment of a bet. A Kentucky statute provided that wagering contracts should be void. The Negotiable Instruments Law, since adopted, provided that a holder in due course of an instrument negotiated by a person whose title was defective because of illegal consideration took free from such defect. Held, that the former statute is not repealed and that the note is void. Alexander & Co. v. Hazelrigg, 24 Bank. L. J. 39 (Ky., Ct. App., Oct. 31, 1906).

Wagering contracts, though not illegal at common law, have become so by statute almost universally. See Drinkall v. Movius State Bank, 11 N. D. 10. But an innocent purchaser for value of a note, unenforceable between the immediate parties because of illegality, has always been protected unless the illegality by statute made the note utterly void. See Sondheim v. Gilbert, 117 Ind. 71. The former Kentucky statute was construed as having that effect. The law, for commercial reasons, has always inclined toward the protection of an innocent purchaser for value of commercial paper, and it cannot be doubted that the Negotiable Instruments Law was intended to make illegality of consideration a personal and not a real defense. See Wirt v. Stubblefield, 17 App. D. C. 283. The Negotiable Instruments Law, then, if fairly construed would seem necessarily to have repealed by implication the prior inconsistent statute. This decision, therefore, does not seem to recognize the spirit of the law which it is interpreting, and must be regarded as a step backward in the development of the law of commercial paper. Wherever the courts have met the point before, they have decided otherwise. Wirt v. Stubblefield, supra; cf. Schlesinger, Receiver v. Kelly, 114 N. Y. App. Div. 546, 552.

BILLS OF LADING CLAUSE QUALIFYING STATEMENT OF WEIGHT OF GOODS. The defendant railway gave a bill of lading for fifty bales of cotton, and relying upon a former bill stated the weight to be nearly double what it was in fact. The bill contained the words "contents and condition of contents of packages unknown." The plaintiff bought the bill and upon discovering the shortage in the cotton sued the railway. Held, that the statement of weight is so qualified that the plaintiff cannot recover. Alabama, etc., Ry. Co. v. Commonwealth Cotton Mfg. Co., 42 So. Rep. 406 (Ala.).

Generally, when the agent of a carrier gives a bill of lading for goods not received by the carrier, the agent is said to act openly beyond his authority, so that the carrier is not bound by the bill when in the hands of a bona fide purchaser. Friedlander v. Texas, etc., Ry. Co., 130 U. S. 416; see 19 HARV. L. REV. 391. But when a shipment is actually made and only the weight of the goods is misstated, the carrier is more generally bound by the representations of his agent. Dickerson v. Seelye, 12 Barb. (N. Y.) 99. Furthermore, an unqualified statement of weight - - a fact often ascertainable by the carrier should import more than a mere opinion. Relyea v. New Haven Rolling Mill Co., 42 Conn. 579. Hence the fact that the goods are described in the bill by bundles as well as by weight should be immaterial. But see Shepherd v. Naylor, 5 Gray (Mass.) 591. Of course a clause stating the weight to be unknown would render the statement of weight one of mere opinion. Shepherd v. Naylor, supra. But the words "contents of packages unknown" hardly refer to the total weight of a car-load shipment. An Illinois case is opposed to the present decision. Tibbits v. R. I., etc., Ry. Co., 49 Ill. App. 567.

CONFLICT OF LAWS INTESTATE SUCCESSION ADVANCEMENTS SET OFF AGAINST ENTIRE ESTATE. A Virginia intestate had made advances to A, one of his two heirs, for which A had agreed to relinquish his right to share in the estate. The intestate owned realty both in Tennessee, by whose law the agreement was binding, and also in Virginia, where such an agreement was invalid. In Virginia an heir who had received advancements might share in the estate upon bringing his advancements into hotchpot. Held, that the value of the Tennessee estate received by the other heir may be set off against and deducted from the advancements received by A, and that A need bring only the balance into hotchpot. Mort v. Jones, 54 S. E. Rep. 857 (Va.).

The Virginia policy of enforcing equality between heirs is here attained. But is this decision an undue trespass upon the rule that realty is governed by the law of its situs? It seems not, for the court does not attempt to interfere with the descent of the Tennessee realty. True, it may attain the same end by allowing its own realty to descend only in the manner it prescribes, but its right to prescribe such terms must be unquestioned. The only authority found is, however, a rather distant analogy. În bankruptcy a creditor cannot prove without accounting for a partial payment out of foreign personalty, though the rule is other

wise with foreign realty. In re Bugbee, 9 N. B. R. 258; Cockerell v. Dickens, 3 Moore P. C. 98. But it does not follow that the court was without jurisdiction simply because it refused to exercise it. Moreover, there is reason for distinguishing that case from this, in that a creditor never can get more than is due him, and so no great injustice is done; while an heir who gets any more than his share is really getting more than is "due" him.

CONSTITUTIONAL LAW CONSTRUCTION OF CONSTITUTIONS - POWER OF VICTORIA TO TAX AUSTRALIAN OFFIcer. - The respondent, an officer of the Australian Commonwealth, was assessed on his official salary under the Victorian Income Tax Act. He objected that this was beyond the constitutional power of Victoria. Held, that the assessment was proper. Webb v. Outrim, [1907] A. C. 81.

This case sets a vexed question at rest. Late Australian cases have held such a tax invalid. D'Emden v. Pedder, 1 Com. L. Rep. 91; Deakin v. Webb, 1 Com. L. Rep. 585; contra, Wollaston's Case, 28 Vict. L. Rep. 357. These decisions rested on the likeness between the American and Australian constitutions. The Australian constitution was patterned after that of the United States, and it is the rule when the statutes of one state are copied by another for the courts of the second to follow the construction already placed upon the statutes by the courts of the former. In the United States a state may not tax the salary of a federal officer, since this impedes a federal agency. Dobbin v. Commissioners of Erie County, 16 Pet. (U. S.) 435. This really rests on the principle that the creation of two interacting governments impliedly confers on each the power to protect its own existence, and impliedly denies to each power to destroy the other. What acts on the part of either constitute a menace or serious impediment to the other cannot be categorically defined. In the case at hand the court declined to follow the American cases on the ground that the two constitutions are not enough alike to warrant similar interpretations upon this point. Probably this simply means that it does not consider this species of tax a sufficient impediment or menace. See, further, 18 HARV. L. REV. 559.

CONSTITUTIONAL Law - Due Process of Law — Compelling Railroad TO BUILD SIDE-TRACKS. A statute required railroads, on application, to condemn a right of way and build spurs to the premises of any industrial concern not more than a half mile away. The cost was to be borne in the first instance by the industrial concern, but to be repaid by the railroad in annual instalments. The act was silent as to a right in the public to use the spur. The defendant refused to build a spur to the plaintiff's brick-yard. Held, that the statute is unconstitutional, because it authorizes the taking of property for a private Mays v. Seaboard Air Line Ry., 75 S. C. 455.

use.

The power of eminent domain can be exercised only for public purposes. While the decision of the legislature may be final as to whether there is necessity for the work, the question whether it is in its nature public or private is necessarily judicial. Matter of Deansville Cemetery Ass'n, 66 N. Y. 569. A few states, notably Pennsylvania, have gone far in sustaining statutes allowing the condemnation of land for private roads connecting with railways or canals. Shoenberger v. Mulhollan, 8 Pa. St. 134. If this extreme position is tenable, it is because the public has a genuine interest in the industry in question. In the case of coal mines and in a few other instances this may, perhaps, be granted, but a brick-yard, as here, cannot be admitted to be within this exceptional class. C. & E. I. Ry. v. Wiltze, 116 Ill. 449. Aside from its attempted grant of the power of eminent domain, the statute also violates both the constitution of South Carolina and the Fourteenth Amendment, because it takes the railway's property for private use in requiring it to build the spur at its own expense. Mo. Pac. Ry. v. Nebraska, 164 U. S. 403.

CONSTITUTIONAL LAW - DUE PROCESS OF LAW - VALIDITY OF STATUTORY REQUIREMENT FOR MAINTENANCE OF SUIT. The charter of a municipality provided that no action should be maintained against it for personal