The courts made the original long and short-haul clause to a large extent ineffective by construing the phrase "under substantially similar circumstances and conditions" so that competition entitled the carrier to charge a lower rate for the longer haul without original authorization from the Commission. Texas Pacific Ry. Co. v. Interstate Commerce Commission, 162 U. S. 197; Interstate Commerce Commission v. Alabama Midland Ry. Co., 168 U. S. 144. This phrase was struck out by the 1910 amendments and the principal case deals with the constitutionality and effect of the amended section. See 36 U. S. STAT. AT LARGE, 547. Undoubtedly the power to fix and regulate rates was one which Congress might constitutionally exercise, but the vital question concerns the validity of the delegation of this power to the Commission. Under modern conditions, with the increasing exercise of the federal power over commerce, it has become necessary and desirable for Congress to act to a large extent through such administrative tribunals. See this issue of the REVIEW, p. 95. To deny the constitutionality of such delegation would seriously impair effective federal control. That the section of the Commerce Act in question makes a real delegation of legislative power to the Commission seems indubitable, and the delegation extends further than any previous cases, in that Congress imposes no standard but the general scope and purposes of the act, a standard so vague as to amount in practice to nothing more than the discretion of the Commission itself. New York, N. H. & H. R. Co. v. Interstate Commerce Commission, 200 U. S. 361. The nearest approach to the principal case is the line of cases holding that Congress may empower the Secretary of War to order the removal of obstructions to navigation. Union Bridge Co. v. United States, 204 U. S. 364; Monongahela Bridge Co. v. United States, 216 U. S. 177. But the statute in these cases does not attempt to delegate nearly as extensive powers as the Commerce Act, for it lays down a fairly definite standard and empowers the Secretary to determine whether it applies to the particular circumstances. 30 U. S. STAT. AT LARGE, 1121, 1153. In sustaining the constitutionality of the clause involved in the principal case, therefore, the Supreme Court has allowed the delegation of very broad powers, and the decision will surely lead to further delegations to administrative bodies in time to come. The opinion of the court purports to introduce no new principle, and in failing to face the issue squarely, it is somewhat unsatisfactory. A more definite pronouncement on the subject may be hoped for in the near future.

MASTER AND SERVANT- WORKMAN'S COMPENSATION ACTS - WHETHER OCCUPATIONAL DISEASE IS AN "ACCIDENT." - The plaintiff's husband died from lead poisoning as a result of continuous exposure to red lead in the defendant's factory. The Workmen's Compensation Act of Michigan provides for compensation for "personal injuries," but in the title and in other parts of the act, "accidents" is the only word used. There is also a provision for notice "within ten days after the occurrence of the accident." Held, that the plaintiff is not entitled to compensation. Adams v. Acme White Lead & Color Works, 148 N. W. 485 (Mich.).

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For a discussion of the question involved, see 27 HARV. L. REV. 766. The Massachusetts case there commented on may be reconciled with the principal case on the ground that the statute there speaks of "injuries," instead of cidents," and contains no provision requiring the date of the injury to be definitely proved. Phraseology similar to that of the Michigan statute has led to the same result in England as in the Michigan case. Broderick v. London County Council, [1908] 2 K. B. 807.

NEGLIGENCE

- DUTY OF CARE VIOLATION OF Tenement House Statute REQUIRING FIRE ESCAPES. A statute required that all tenement houses of

a certain class should be provided with fire escapes, but unlike the previous act gave no civil action for a breach. The defendant inherited a tenement not properly equipped, and, in a fire a month later, the plaintiff's wife was killed as a result of the absence of fire escapes. The plaintiff sued for negligence, but was allowed to amend and substitute the non-performance of statutory duty as the basis of his action. Held, that he cannot recover on that theory. Evers v. Davis, 90 Atl. 677 (N. J. Ct. Err. and App.).

In this case the court's opinion closely follows and quotes at length from Dean Thayer's article in a recent issue of the REVIEW. See 27 HARV. L. Rev. 317. It states admirably that in the absence of an express statutory provision for civil action, recovery for a breach of the statute depends on common law principles of negligence. But the statute in question prescribed an affirmative duty, and its violation was a nonfeasance, so that evident legislative intention to create a new private duty toward those for whose benefit the statute was passed is essential. Cowley v. Newmarket Local Board, [1892] A. C. 345. In view of the omission of the former act's provision for civil remedy, it may well be doubted whether the legislature intended to impose any duty on the landlord in favor of the tenant or his family and change the common-law rule of no liability for open defects of the premises to that extent. See Land v. Fitzgerald, 68 N. J. L. 28. Cf. Willy v. Mulledy, 78 N. Y. 310. The statute may conceivably be regarded, however, as stamping the maintenance of such tenements without fire escapes as dangerous conduct, so that the landlord would be guilty of positive wrong, and liable for his negligence in disregarding the legislative warning. See Dawson & Co. v. Bingley Urban District Council, [1911] 2 K. B. 149, 159. The fact that in the principal case the landlord inherited the premises only a month before the fire, suggests another interesting question, on which there is no direct authority. The nearest analogy is the case of a public officer, excused from the performance of a statutory duty because the necessary means were not furnished him. See Weise v. Tate, 45 Ill. App. 311. It would seem likewise proper to deny recovery against one who has made every reasonable effort to comply with the statute, but has failed because of lack of time. For his conduct has been that of a reasonable prudent man with reference to the statute.

POLICE POWER INTEREST OF PUBLIC HEALTH CONSTITUTIONALITY OF EUGENIC MARRIAGE LAWS. - A Wisconsin statute forbids the county clerk to issue a marriage certificate to any male applicant who does not produce a physician's certificate stating the applicant to be free from acquired venereal diseases, and provides that the physician's fee for such examination shall not exceed three dollars. Held, that the statute is constitutional. Peterson v. Widule, 147 N. W. 966 (Wis.).

A discussion of the case in the lower court will be found in 27 HARV. L. REV. 573. Under the upper court's construction of the statute, it does not require a laboratory test as the basis of the certificate, and the law therefore ceased to be objectionable as an unreasonable restriction on the right to marry.

POLICE POWER NATURE AND EXTENT - FEDERAL PROTECTION OF MIGRATORY BIRDS. An act of Congress declared that migratory birds were under the protection of the federal government and authorized the Department of Agriculture to make regulations in regard to hunting them. The defendant, indicted for violation of one of these regulations, challenges the constitutionality of the act. Held, that the act is unconstitutional. United States v. Shauver, 214 Fed. 154 (Dist. Ct., E. D., Ark.).

As representative of the people, each state controls fish and game within its borders. Geer v. Connecticut, 161 U. S. 519; In re Mattson, 69 Fed. 535. But when game leaves the state, its sovereignty ceases. See Behring Sea Ar

bitrators' Decision, 32 AM. L. REG. 909. Game that migrates from state to state is thus constantly passing from the sovereignty of one state into that of another. Such a situation could be most effectively regulated by the federal government, but it seems clear that the statute in the principal case is beyond its powers. The federal government does not have sovereignty over the game, neither is there any legal principle authorizing the nation to assume powers because it can exercise them better than the states. Moreover, though the federal power over interstate commerce covers more than mere sales, and might conceivably come to include journeyings of citizens from state to state, the step from that to the uncontrolled movements of wild game is a very long one. It would seem that the worthy purpose of this statute must be carried out in some other way, either by exercise of the taxing power or by constitutional amendment.

POLICE POWER - REGULATION OF TRADES, PROFESSIONS AND BUSINESS REGULATION OF RATES: FIRE INSURANCE. - A Kansas statute (Session Laws

of 1909, c. 152, § 3) authorized the superintendent of insurance to establish reasonable rates for fire insurance companies. Held, that it is constitutional. German Alliance Ins. Co. v. Lewis, 34 Sup. Ct. 612.

For a discussion of the principles involved, see NOTES, p. 84.

PUBLIC SERVICE COMPANIES

REGULATION OF PUBLIC SERVICE COMPANIES - TELEPHONE COMPANIES: COMMISSION'S ORDER COMPELLING PHYSICAL CONNECTIONS. - The plaintiff company, operating long distance telephone lines in various states and maintaining a limited telephone service in a hotel, was ordered by the Oregon railroad commission to make physical connection with a local telephone company which had telephones in each room of the hotel so that both systems might be used interchangeably by the hotel. Held, that the order is valid. Pacific Tel. & Tel. Co. v. Wright-Dickinson Hotel Co., 214 Fed. 666 (Dist. Ct., Ore.).

This case supports the correct view, that the order is to be sustained as a reasonable regulation of undertakings affected with a public interest, and not held void as an attempted exercise of the power of eminent domain without proper compensation. For a criticism of a contrary case, see 27 HARV. L. REV. 687.

RAILROADS - REGULATION OF RATES - POWER OF INTERSTATE COMMERCE COMMISSION OVER INTRASTATE RATES "SHREVEPORT RATE CASES." Railroads running between Shreveport, La., and Houston and Dallas, Tex., maintained higher rates between Shreveport and Texas points than for corresponding distances within Texas. The Interstate Commerce Commission found that this constituted unjust discrimination in favor of intrastate traffic. It then fixed maximum interstate rates, and ordered the carriers to equalize their intrastate and interstate rates. The Railroad Commission of Texas had established intrastate rates lower than the new maximum rates, and the Commerce Court held, on appeal, that the carriers could disregard this intrastate schedule, and increase those rates to correspond with the order. The carriers then attacked the validity of the order in the Supreme Court. Held, that the order be sustained. Houston, E. & W. T. Ry. Co. v. United States, 234 U. S. 342.

The court upholds the order as within the power of the Interstate Commerce Commission to regulate the relation between interstate and intrastate rates so as to prevent unjust discrimination against interstate commerce. For a discussion of the questions involved, see an article on page 34 of this issue of the REVIEW. Similar questions were discussed in the comment and leading article on the Minnesota Rate Cases. See 24 HARV. L. REV. 679; 27 id. 14.

RESTRAINT OF TRADE -SHERMAN ANTI-TRUST LAW - "INTERNATIONAL HARVESTER CASE.” — A petition for dissolution was brought by the United States against the International Harvester Co. alleging that the corporation constituted a combination in restraint of trade and a monopoly. The Company had been organized in 1902 out of six independent and competing companies, and controlled between 80 and 85 per cent of the harvesting machinery output. No attempt to control prices, stifle competitors, or interfere otherwise with trade was proved. Held, that the defendant be dissolved. United States v. International Harvester Co., 214 Fed. 987 (Dist. Ct., Minn.).

The question of whether this case is a proper application of the rule laid down in the Standard Oil and Tobacco Cases, is taken up in this issue of the REVIEW, p. 87.

SALES RISK OF LOSS EFFECT OF BUYER'S RIGHT OF INSPECTION. The plaintiff agreed to sell and deliver a consignment of boxes f.o.b. place of shipment, and shipped the goods in conformity with the contract. Before the buyer had had opportunity to inspect the boxes, they were washed overboard and destroyed. The plaintiff now sues for the price of the goods. Held, that he can recover. Skinner v. James Griffiths & Sons, 141 Pac. 692 (Wash.).

On sales of goods which the seller is authorized to deliver to a carrier, title passes to the buyer on delivery to the carrier, if delivery is made in accordance with the authority given. The buyer's right of inspection then serves to determine whether title has so passed, and operates as a condition precedent, not to the passing of title, but merely to the payment of the price. Murphy v. Sagola Lumber Co., 125 Wis. 363, 103 N. W. 1113. See WILLISTON, SALES, §§ 278, 473. Cf. Giffen v. Selma Fruit Co., 5 Cal. App. 50, 84 Pac. 885. The risk of loss is therefore on the buyer, if the seller has shipped in conformity with the contract, although the buyer has been unable to inspect. Magee v. Billingsley, 3 Ala. 679, 698; Virginia Kid Co. v. New Castle Leather Co., 89 Atl. 367 (Del.). The principal case is an unusually clear statement of this rule, which is now generally adopted. Cases where delivery is to be made to the buyer must, however, be distinguished. For there the buyer's assent to take delivery is essential, and his right of inspection operates as a condition precedent to the transfer of title. McNeal v. Braun, 53 N. J. L. 617, 23 Atl. 687. Again, there is authority declaring that where there is express reservation of the right of inspection, title does not pass until inspection by the buyer. Phanix Packing Co. v. Humphrey Ball Co., 58 Wash. 396, 401, 108 Pac. 952, 954. See Livesley v. Johnston, 45 Ore. 30, 43, 76 Pac. 946, 949.

But these cases construe the reservation as a reservation of the passage of title and do not deny the general principle.

SALES TIME OF PASSING OF TITLE SALE OF STANDING TREES. - The defendant executed an instrument under seal which purported to sell growing trees to the plaintiff and to give him two years in which to cut and remove them. At the expiration of the period, the defendant claimed the timber, cut, but not removed. The plaintiff brought trover against the defendant. Held, that he cannot recover on the ground that title passed only to timber removed within the period limited. Smith v. Ramsey, 82 S. E. 189 (Va.).

Under a similar agreement the vendee removed timber after the time limit had expired. The vendor brought suit for the timber so removed. Held, that he can recover, on the ground that the vendee's title was subject to defeasance as to timber not removed within the term. Bond v. Ungerecht, 167 S. W. 1116 (Tenn.).

Instruments of sale of standing trees, containing a clause limiting the time in which the vendee may cut and remove them, have been given various constructions. On one view, the clause is a covenant and absolute title passes.

Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 So. 858. If timber is removed after the period, the vendor's remedy is for breach of covenant or in trespass, but the value of the trees is not a part of the damages. Courts of equity however will not require the vendor to permit the trespass. Peirce v. Finerty, 76 N. H. 38, 76 Atl. 194. Support has been given this construction because it is claimed that no forfeiture is involved. See 17 HARV. L. REV. 411. A second view, that of the Virginia case, regards the clause as a condition precedent with title passing only to those trees cut and removed within the period. Boisaubin v. Reed, 2 Keyes (N. Y.) 323, 1 Abb. Dec. 161. This is scarcely the intention of the parties as expressed in the absolute terms of the conveyance. The Tennessee case adopted the third, and most preferable view, that the clause is a condition subsequent and that title passes subject to defeasance as to timber not removed within the time limit. Allen & Nelsom Mill Co. v. Vaughn, 57 Wash. 163, 106 Pac. 622. This construction fulfils the intention of the parties without violating the language of the instrument and avoids a situation where a legal title can only be asserted by means of a trespass.

TAXATION

- GENERAL LIMITATIONS ON THE TAXING POWER -STATE TAXATION ON THE PROCEEDS OF INTERSTATE COMMERCE. A Texas statute [ACT 30th, LEG. (1st Ex. Sess.) c. 18] imposed upon each terminal company doing business in the state "an occupation tax" "equal to one per cent of the total amount of its gross receipts from all sources whatever." This tax was stated to be in excess of all other taxes, but those paying it were to be relieved from the operation of former enactments imposing "occupation" taxes and a tax upon intangible assets. Defendant, an interstate company, contests the tax. Held, that the statute is constitutional. State v. Houston Belt & Terminal Ry. Co., 166 S. W. 83 (Tex. Civ. App.).

For a discussion of this case in the light of the various United States Supreme Court holdings on the subject, see NOTES, p. 93.

WITNESSES - COMPETENCY COMPETENCY OF A PRESIDING JUDGE AS WITNESS. One of the presiding justices voluntarily took the stand and testified why a certain licensing committee, of which he had been a member, had referred the hearing to the body then sitting. Held, that the refusal of the license be affirmed. Semble, that the justice was not a competent witness. Mitchell v. Justices of Croydon, 30 T. L. R. 526, 20 Wkly. Notes, 225.

A judge may always testify in a cause where he is not sitting, as to the proceedings before him at another trial. State v. Duffy, 57 Conn. 525, 18 Atl. 791. But a judge cannot be required to give testimony at a trial over which he presides. State v. De Maio, 69 N. J. L. 590, 55 Atl. 644; Reno Mill & Lumber Co. v. Westerfield, 26 Nev. 332, 67 Pac. 961, 69 Pac. 899. Early English practice, however, seems to have considered a presiding judge a competent witness. Trial of Oates, 10 How. St. Tr. 1079, 1142; Trial of Stafford, 7 How. St. Tr. 1293, 1413, 1442. Subsequently doubts as to the propriety of this were expressed. See Duke of Buccleuch v. Metropolitan Board, L. R. 5 H. L. 418, 433; Rebina v. Petrie, 20 Ont. 317, 323. In America, in the absence of statutes, the weight of authority is that one of the presiding justices is not a competent witness. Morss v. Morss, 11 Barb. (N. Y.) 510. Various reasons have been given, among others, that there would be no one to swear him, that he would have to pass on the admissibility of his own evidence, and that he could not be held for contempt. Baker v. Thompson, 89 Ga. 486, 15 S. E. 644; Martland v. Zanga, 14 Wash. 92, 44 Pac. 117; People v. Miller, 2 Park. Cr. (N. Y.) 197. But statutes in many states allow the judge to testify. See CHAMBERLAYNE, EVIDENCE, p. 747. It is then at his discretion to proceed, or to suspend the trial until another judge can be secured. State v. Houghton, 45 Ore. 110, 75