AMERICAN RAILROAD RATES. By Walter Chadwick Noyes. Boston: Little, Brown & Company. 1905. pp. 277. 8vo. The title-page of this work announces that the writer is a judge, president of a railroad and author of a well-known legal treatise. Scarcely less wide in range than the versatility of the author's talents is the selection of topics he has discussed. The first three chapters sketch in broad lines the established principles of economic theory which govern the adjustment of railway rates. Then follows a discussion of certain practical problems in the management of railroads. One chapter contains an excellent description of the method by which in actual practice the various articles of traffic are classified and tariffs adjusted. In another chapter are explained and illustrated the conditions which give rise to the practice of discrimination. Perhaps of most immediate interest to the lawyer is the running commentary made upon the legal questions raised by the various phases of rate-making discussed, which culminates in two special chapters entitled: "State Regulation of Rates " and " Federal Regulation of Rates." The legal duty of the railroad to the public is briefly discussed. The principal provisions of the Interstate Commerce Act and the leading decisions in interpretation thereof, are summarized, and the practical workings of the act criticised. After the passage of the act, the author asserts, "pooling was substantially abandoned," but discrimination has persisted in times of business depression when traffic was light, and no adequate relief is provided against unreasonable rates. The volume concludes with a temperate and well-considered inquiry into the expediency and constitutionality of federal regulation: "any effective measure of relief requires the progressive action of two tribunals: (1) the judicial question of the reasonableness of the rate complained of . . . (2) If a rate be judicially found to be unreasonable, the legislative power of making a new rate should be administered." The reasons for adopting this mode of procedure can, however, only be considerations of practical efficiency. Undoubtedly the determining in a controversy between parties litigant the reasonableness of an existing rate is a judicial function. Nevertheless, Congress has the power to create a commission whose duty shall be to ascertain the reasonableness of existing rates in order that their findings of fact may be used as a criterion in fixing a rate for the future. Judge Noyes maintains that inasmuch as the fixing of a reasonable rate for the future is a legislative function, any provision for a judicial review of the action of a commission in order to determine whether the rate fixed by the commission is reasonable, requires the exercise of non-judicial powers by the courts, and is unconstitutional. The importance of this contention is chiefly to enjoin caution in the choice of the language defining the judicial power of review. To determine whether limiting the charge of the carrier to a maximum rate fixed by a commission, deprives the carrier of property without due process of law, is conceded to be a judicial function. The test of the constitutionality of such a rate is whether its enforcement will prevent the company from earning a reasonable profit on the item of business affected. See Railroad Commission Cases, 116 U. S. 331; Chicago, etc., Co. v. City of Chicago, 199 Ill. 484, 547; 199 ibid. 579, 642. And it is not improbable that this same test may be adopted as the rule to guide the commission in determining what shall be a reasonable future rate, with the result that a review, in the strictest sense judicial, would be both common and necessary. A TREATISE ON THE LAW OF DOMESTIC RELATIONS. By Joseph R. Long. St. Paul: Keefe-Davidson Company. 1905. pp. xiv. 455. 8vo. "This book," says the author in his preface, "has been written to supply a need which I have personally felt as a teacher of law. In writing it I have kept my own students constantly in mind, and have endeavored to set forth those principles of the law which I thought they ought to know, in such a manner as to be readily grasped by them." The preface concludes with the hope that the book may not be wholly without value to the practitioner. The author has apparently written in accordance with his expressed purpose. As a book for the lawyer in search of argument or authority, the work is not helpful. The citations are far from exhaustive and the analytical discussion of underlying principles is almost entirely omitted. The book consists mainly of a summary of the rules of law which govern the relations of the members of a family toward one another. While the disabilities of married women and infants, and other matters usually treated in more comprehensive treatises upon domestic relations, are of necessity touched upon incidentally, they are dismissed as briefly as their relation to the subject will permit. The rules of law are stated concisely and in the main clearly, but without much attempt at illustration or elaboration of detail. Theoretical discussions of the law, the weighing of reasons for or against the acceptance of a principle, and criticisms of the decisions as they stand are for the most part wanting. In fact, the book seems in most respects best adapted for use as a text-book in a law school in which the text-book method of instruction is employed, and in which the instructor intends to rely upon the class-room work for the purpose of supplying both the reasons underlying the settled law and the more particular applications of its principles. One notes a few propositions which seem as they are stated to be somewhat misleading. For instance, in § 43 one reads that marriages between citizens of a state which have been declared by a state statute to be void, are held void although contracted in another state in which they are not prohibited. This seems to be an over-statement. A void marriage is no marriage at all. But a marriage contracted by citizens of Ohio in Kentucky in order to avoid the laws of Ohio, if valid in Kentucky, will be recognized as valid by all states other than Ohio. Again, in § 142 it is stated that the parties themselves are bound by a decree of divorce fraudulently obtained upon the voluntary appearance of both in a proceeding in a jurisdiction where neither had a domicile, and that they cannot avoid the decree in a collateral proceeding afterwards instituted in the state of their domicile. The author notes in the appended citations that Andrews v. Andrews (188 U. S. 14) is to the contrary. Inasmuch as the final decision as to the binding effect of a decree rendered in another state lies with the United States Supreme Court, it would seem that there is a patent inconsistency in the author's statements as to the law and as to the holding of Andrews v. Andrews. In the same section the author maintains that where a person goes to a state and resides there for the purpose of procuring a divorce, the divorce is invalid, as the plaintiff does not comply with the rule requiring him to have a bona fide domicile in the state in which suit is brought, and cites Andrews v. Andrews for the proposition. If it is intended to be laid down that a person who goes to a state and resides there with the intention of making it his home cannot procure a valid divorce in that state in case his motive in so doing was to take advantage of its divorce laws, it may well be doubted whether the proposition is law. Certainly Andrews v. Andrews goes rather on the ground that no domicile was acquired in South Dakota because of a lack of real intention to make a home there. Notwithstanding the defects of the work, however, it should prove useful to the elementary student as a concise and for the most part accurate statement of the law. H. LEB. S. THE LAW OF CRIMES. By John Wilder May. Third Edition, edited by Harry Augustus Bigelow. Boston: Little, Brown, & Company. 1905. pp. liv, 366. 8vo. The present volume, which is a third edition of Mr. May's well known work on Criminal Law, introduces even more extensive changes than did the second edition by Prof. J. H. Beale, Jr. One hundred and fourteen new sections and parts of sections have been added. The pages of its text number three hundred and thirty-two as against three hundred and twenty-one in the second, and two hundred and twenty-eight in the first edition, while the number of cases cited has been increased, chiefly by the addition of the late authorities, from some eight hundred in the first, and two thousand in the second, to over thirty-six hundred in the third edition. This disproportion in the growth of the citations and of the text has had the advantage of leaving the latter brief enough for the purposes of the student, while giving something of the fullness of authority needed by the practicing lawyer. The first part of the book is devoted to an exposition of the general principles underlying both common law and statutory crimes, such as intent, capacity, and justification. The second part gives a brief survey of criminal procedure, while the third consists of careful definition of all the principal crimes. The author has the misleading though common habit, probably derived by false analogy from the English text writers, of citing single uncontradicted decisions of state courts as general law. At times, too, a case cited is not authority for the point of law which it is said to support, -as where the famous case of Regina v. Keyn (2 Ex. D. 63) is quoted to prove that a nation has a quasi-territorial jurisdiction for three miles from its shores. Yet the work has obviously been given real thought. It is not a mere rearrangement of the timeworn text-book fallacies for purposes of sale. Its statements of principle are clear and refreshingly brief. Where distinctions are shadowy or incapable of certain application, the author has had the courage to say so frankly, instead of inventing bizarre criteria which no court could be counted on to sustain. While the book may still be too brief to be of much service to the practicing lawyer in preparing any particular case, yet for the student and general reader it stands distinctly above the average and is perhaps the best available work. THE CONSTITUTIONAL DECISIONS OF JOHN MARSHALL. Edited with an Introductory Essay, by Joseph P. Cotton, Jr. In two volumes. New York and London: G. P. Putnam's Sons. 1905. pp. xxxvi, 462; v, 464. 8vo. If the editor of these volumes had intended to prepare the constitutional decisions of Marshall's time for the present use of lawyers, he would have had no difficulty in forming a plan. Lawyers want a head-note giving the ratio decidendi, then the original reporter's statement or an equivalent, then the arguments of counsel or an abstract, then all the opinions, whether concurring or dissenting, and finally notes citing all the later cases and other literature; and they care little for critical comment, being of the contented view that what is done is done. The task set before the present editor is the very different and more perplexing one of adapting cases to the uses of the general reader. His plan is to reprint merely the opinions of Marshall, omitting formal head-notes, the technical statement of the cases, the arguments of counsel, and, with a few exceptions, the concurring and dissenting opinions. His editorial additions do not give numerous citations, but give in an introductory essay a rather conventional view of Marshall and of contemporary history, and prefix to each opinion comments indicating the doctrine of the case, the mode in which the question arose, and the editor's estimate of Marshall's opinion and of the influence which that opinion has exercised. As judicial opinions are not written for laymen, and as laymen cannot be cured of a tendency to believe that a dictum is just as authoritative as the ratio decidendi, it seems doubtful whether it is just to a judge or useful to the public to take judicial opinions out of their habitat and to place them before the general reader. Yet if the task is to be attempted, there is much to be said in favor of the present editor's plan. In view of the difficulties encountered by him, it is disagreeable to call attention to apparent blemishes. The introductory essay, quite appropriately intended to be laudatory, gives the unfortunate impression that Marshall was the whole court and that his opinions were dictated by partisan bias, and fails to indicate that throughout two-thirds of his service most of his colleagues were not of his own political faith. Again, the comments on the several opinions express disapproval more freely than is the habit of the profession, and certainly must be strong meat for laymen; for the editor questions almost half of Marshall's constitutional opinions in the Supreme Court, including almost three-fourths of those which have become famous. These may well be deemed the rather creditable slips of an enthusiast. Of a different class is the omission to do all that can be done to protect the general reader from laying too much stress upon dicta; but the truth is that to render judicial opinions safe reading for laymen is an almost impossible undertaking. E. W. CORPORATIONS. A Study of the Origin and Development of Great Business Combinations and of their Relation to the Authority of the State. By John P. Davis. In two volumes. New York and London: G. P. Putnam's Sons. 1905. pp. ix, 318; iii, 295. 8vo. This work was designed as an historical introduction to a more extended treatise upon "the modern corporation question," an undertaking which was cut short by the author's death in 1903. The present volumes are confined to the earlier ecclesiastical, educational, and eleemosynary corporations, to gilds and municipal corporations, and to the chartered trading companies. The development of joint-stock enterprise in the nineteenth century and all modern phases of the corporation problem are practically untouched, so that nothing but the ambitious title suggests the purpose the author had in view. The book expressly disclaims original historical research, and professes rather to be an interpretation "of existing and accessible historical material." But even of secondary sources the author had very imperfect command; and his narrative is confined chiefly to England, dealing with other countries only when some such work as Rashdall's "Universities in Europe "gives him a broader outlook upon the facts. Even in the case of England, however, he has failed to make the most of such writers as Pollock and Maitland. For the general reader who desires an account of the early development of English corporations the book may be of some value; to the serious student it will be of little use. The superficial character of Mr. Davis's historical chapters is not calculated to give one confidence in his interpretation of the "nature of corporations" or in his exposition of "the legal view of corporations"; and, in point of fact, these interpretative chapters yield results that are neither strikingly new nor strikingly important. It would have been well, moreover, to have deferred the consideration of the relation of corporations to the state until the history of corporate enterprise in the nineteenth century had been adequately examined. As the volumes stand, they are hardly more successful in legal interpretation than in historical research. Finally, in the reading of the proof "the author's legal representative," to whom the work fell, has not been particularly faithful to his C. J. B. trust. HINTS FOR FORENSIC PRACTICE. A Monograph on Certain Rules Appertaining to the Subject of Judicial Proof. By Theodore F. C. Demarest. New York: The Banks Law Publishing Company. 1905. pp. x, 123. 12mo. This book will be of practical value to the trial lawyers of New York. It treats of objections to evidence, of striking out and disregarding evidence, and of motions to direct and set aside verdicts. Particular attention is paid to the effect of general objections, and to the meaning of the familiar but often little understood phrase, "incompetent, irrelevant, and immaterial." The text consists largely of extracts from New York decisions arranged in a novel and convenient manner. Every quotation from a decision is followed by a "remark in a separate paragraph, which points out the relation of that case to the development of the law, and at the end of the cases upon a particular point the author's conclusions appear in an excellent summary. The method is that of a law lecture under the case system, and the happy result should commend the plan to text-writers whenever the topic handled is sufficiently limited to permit its use. Although the principles involved in Mr. Demarest's work are simple, many lawyers practise for years without thoroughly understanding them, and his analysis of the cases will make much easier a mastery of the points of practice which he discusses. It is to be regretted that he did not widen the scope of his treatise so that it would be of value to the profession at large. A SHORT HISTORY OF ROMAN LAW. By Paul Fréderic Girard. Being the first part of his Manuel Elémentaire de Droit Romain. Translated by Augustus Henry Frazer Lefroy and John Home Cameron. Toronto: Canada Law Book Company. 1906. pp v., 220. 12mo. Since its first appearance in 1895 the Manuel Elémentaire de Droit Romain of M. Girard has been recognized as from every point of view one of the best brief works available for the study of Roman law, and English readers will welcome a translation of the excellent historical introduction. The little volume is of about the same length as the historical chapters of Sohm's Institutes, but the method of treatment of the two jurists is so different that students will need to refer to both books. Moreover the general bibliography which M. Girard's translators have included has no parallel in the other manuals, and forms an admirable guide to the ancient and modern literature of the subject. The translation is faithful, though at times too literal for English idiom, and it is to be hoped that Messrs. Lefroy and Cameron will feel sufficiently encouraged to translate the remaining portion of the work. C. H. H. THE AMERICAN LAW RELATING TO INCOME AND PRINCIPAL. This small volume explains in detail the rules of law which control the separation of the returns from trust investments into income and principal. The subjects treated include the ownership of dividends on stock, the duty of the trustee to preserve the corpus intact, the apportionment of loss or profit, the determination of the moment when enjoyment of income begins, and the apportionment of current income between life tenant and remainderman. While no attempt is made to deal with theoretical problems of law, the statement of principles is clear and accurate, and is couched in untechnical language. Hence laymen as well as lawyers should find the book useful. THE CONSTITUTIONAL HISTORY OF NEW YORK, from the Beginning of the A TREATISE ON THE INCORPORATION AND ORGANIZATION OF CORPORA- Volume IV., In dictment to Witnesses. George Foster Longsdorf, Editor; Walter II. Shumaker, Associate. St. Paul, Minn. : Keefe-Davidson Company. 1995. XV, 1971. 4to. |