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the railroads.106 But why need resort first be had to the Commission? Its function is to determine questions of fact, whether a given rate is reasonable per se or discriminatory in relation to other interstate rates. In an action for damages, therefore, the propriety of the established requirement that a ruling of the Commission be first had, cannot be disputed. But in the Shreveport Cases the question is primarily one of constitutional law, namely, whether what a state has done is a violation of the commerce clause. This is the same question involved in every case that we have considered. In the Eubank Case, upon which the court so much relies, no resort to the Commission was required. Wherein is the difference? The Supreme Court, ab inconvenienti, has read out of the Interstate Commerce Act the very passage that rendered it constitutional. After this, to what may not the alluring arguments of expediency lead us?

BALTIMORE, MD.

William C. Coleman.

106 See Section 13 of the Interstate Commerce Act.

HARVARD LAW REVIEW

Published monthly, during the Academic Year, by Harvard Law Students

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THE APPOINTMENT OF PROFESSOR FRANKFURTER. The facts of Professor Frankfurter's record without comment show the School's good fortune in his appointment and his special fitness for such courses as Public Service Companies, Criminal Law, and Penal Legislation and Administration. He graduated from the College of the City of New York in 1902, and from the Harvard Law School in 1906 after a brilliant record as a student which included membership on the editorial board of this REVIEW. He then was immediately appointed Assistant United States Attorney for the District of New York under the Honorable Henry L. Stimson (H.L.S., '90). This required him at once to take an active part in the series of great cases which marked the new activities of the Federal Government in regulating business in New York. These included, among many others, the rebate cases against the New York Central and other Trunk Line railways and against the American Sugar Refining Company as shipper, the proceedings against Edward H. Harriman, Charles W. Morse and F. A. Heinze and the well-known sugar weighing fraud cases against the officers of the Sugar Trust. In most of these cases Professor Frankfurter carried through the argument of the appeals alone, and his share in bringing about the distinguished success which directed so much attention to the District Attorney's office during this period has often been generously recognized by Mr. Stimson.

In July, 1911, Professor Frankfurter was appointed Law Officer of the Bureau of Insular Affairs in the War Department, and he filled that office until he accepted his present appointment. In this position he had the duties of Chief Legal Adviser of the Colonial Administration of the United States. All the important problems arising in the govern

ment of the Philippine Islands and Porto Rico, and in the virtual protectorate over San Domingo from our administration of its customs, came before him for solution, and he argued before the Supreme Court the important cases arising from them. Having left the School to enter the public service he now returns from the public service to the School with experience of a kind most calculated to enrich his mind and expand his vision in the subjects which he is now called upon to teach.

THE LAW SCHOOL. Professor Beale's new first-year course on Principles of Legal Liability marks an interesting attempt at economy of effort and a closer coördination of the first-year courses. The title of the course calls for a word of comment to guard against the misapprehension which might arise from a notion that "principles of legal liability" were the province of one course any more than another. Obviously it is with such "principles" that the courses on Contracts, or Property, or Torts not less than the new course are primarily concerned. Certain principles of liability, however, are so fundamental in their nature and so general in their application that a correct understanding of them is essential in more than one of the first-year courses. And when a large and difficult subject, such, for example, as Causation, is governed by principles which in their main outline do not differ essentially in criminal and in civil cases, there is an unfortunate duplication, to say nothing of possible confusion, in the effort to cover the subject in both Criminal Law and Torts. Furthermore such an effort may have a distinctly harmful effect in leading the student to think of the law as a group of unrelated matters in separate compartments instead of an organic whole. The same is true of certain defenses, such, for example, as the right of self defense, and other matters covered by Professor Beale's new case book. Owing to the nature of the course, which will contain much that has previously been taken up early in the year in the course on Criminal Law, it has been put in the first half year, and Criminal Law, which will be conducted by Professor Frankfurter, has been put in the second half year. Agency has been made a second-year course in order that students may have the advantage of undertaking its systematic study after a ground work of thorough preparation in courses more strictly primary in their nature. This change had made it possible to give three hours a week to the courses on Principles of Legal Liability and Criminal Law.

The course on Civil Procedure has been enlarged so as to cover more broadly the whole subject excepting Evidence. The matters to be taken up include venue, process, appearances, forms of action, parties, pleading, trials, motions for a new trial, motions based on the pleadings, judgments and appellate procedure. Approximately one-third of the time will be given to pleading.

In addition to the above, several other changes in the curriculum are to be noted. The course in New York Practice, given two years ago, will be repeated this year, under Mr. R. Campbell, A.B., LL.B., as will the course in Patents, under Mr. Odin Roberts, S.B., A.M., LL.B., who conducted it before. Mr. William G. Thompson, A.B., LL.B., of the Boston Bar, will again give his lectures in brief-making. A course on Penal Legislation and Administration will be given by Professor Frank

furter. The resignation of Professor Wyman has necessitated a new arrangement of lectures. In the first-year courses, Professor Joseph Warren will assist Professor Williston in the course in Contracts. In the second-year courses, Professor Beale is to conduct the course in Property in place of Mr. Dutch, while Professor Frankfurter will conduct the course in Public Service Companies. In the third-year courses, Professor Scott will treat the subject of Suretyship and Mortgage, while Professor Pound will replace him in the course in Quasi-Contracts.

It is very pleasant to be able to congratulate Professor Austin Wakeman Scott, A.B., LL.B., and Professor Felix Frankfurter, A.B., LL.B., who have been appointed Professors of Law.

THE AMES COMPETITION. The radical modifications in the structure of the Ames Competition which have been carried into effect in the present second-year class have already justified themselves in the light of increased interest and activity among the law clubs. In the last competition under the old rules, first and second prizes were won by the Kent and Bryce clubs, respectively. The Board of Student Advisers in charge of the competition this year is composed of Chauncey Belknap, Chairman, Montgomery B. Angell, J. Dwight Dana, Paul Y. Davis, John B. Dempsey, Chester A. McLain, T. Brooke Price and Clarence B. Randall.

To this body has fallen the task of reorganizing the competition along lines which were pointed out by last year's Board. It was felt that a plan which wholly eliminated from the competition more than half of the entering clubs by the end of the first round, failed to give any considerable number of men that training in the argument of cases which it was the chief aim of the competition to afford. As the contests progressed, the great majority of men were soon watching the scoreboard rather than playing the game.

A brief outline of the new rules will show how this objection has been overcome. The competition has been divided into two parts, a qualifying tournament in which each second-year club entering will meet six other clubs, and a third-year elimination tournament which preserves the principle of the old competition, but is restricted to a limited number of clubs which have established the best records during the second year. As will be seen, no club is put out of the qualifying tournament by failure to win a case. As the Ames prizes will be given to the winners of the third-year elimination tournament, they will not be awarded this year.

APPLICATION OF THE POLICE POWER IN THE INSURANCE RATE AND PIPE LINE CASES. More than twenty years ago Mr. Justice Brewer protested against the doctrine of the Granger Cases in the following words: "It seems to me that the country is rapidly travelling the road which leads to the point where all freedom of contract and conduct will be lost." 2 Two recent cases of far-reaching importance are founded upon an amplification of the principles and reasoning so vigorously de1 Munn v. Illinois, 94 U. S. 113; Budd v. New York, 143 U. S. 517; Brass v. North Dakota, 153 U. S. 391.

2 See Brass v. North Dakota, 153 U. S. 391, 410.

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nounced. In the German Alliance Ins. Co. v. Lewis, 34 Sup. Ct. 612, it was held, the Chief Justice and two of his associates dissenting, that a Kansas statute regulating the rates of fire insurance companies was not an unconstitutional taking of property without due process of law.* The Pipe Line Case sustains the constitutionality of an amendment to the Interstate Commerce Act which placed all pipe lines transporting oil on the footing of common carriers, irrespective of whether they had ever professed to carry for the public. United States v. Ohio Oil Co., 34 Sup. Ct. 956.

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The instinct of modern lawyers is to regard rate regulation as an anomalous encroachment upon the freedom of the individual, confined by our Constitution to a small class of so-called "public callings" which has definitely ascertained limits. But formerly Parliament and the colonial assemblies regulated wages and prices in many other callings as a common function of government. The abeyance of the power during the first half century of our national existence was due to the dominance of laissez faire economics rather than to any constitutional obstacles to its exercise. Regulation persisted, however, in the case of carriers and innkeepers, who in a peculiar sense exacted tribute from the community. When the attempt was made to regulate other employments, the courts at first refused to exert this power of government through the common law, on the ground that they were being asked to extend an anomaly rather than to interpret a principle.10 But

3 SESSION LAWS OF 1909, C. 152, § 3. Although, narrowly interpreted, the statute confers this power only with respect to insurance corporations, it is significant that the court makes no attempt to support the statute as an exercise of the legislative power over corporations.

The case was followed and applied to surety and fidelity companies in State v. Howard, 147 N. W. 689 (Neb.).

5 In 26 HARV. L. REV. 631 it was submitted that the amendment was unconstitutional because it applied to "those who merely transport oil produced by their own wells, a proceeding which is hardly opposed to public policy." The Supreme Court excludes this possibility by straining the wording of the statute, and sustains its constitutionality as applied to concerns which transport oil from the western fields to eastern refineries, but by their monopoly of the means of transportation compel producers to sell at the wells.

6 In an article entitled "GOVERNMENTAL REGULATION OF PRICES," by Eugene A. Gilmore, 17 GREEN BAG, 627, many instances of general price regulation by Parliament are cited. See also BEALE AND WYMAN, RAILROAD RATE REGULATION, § 4.

7 The following are a few examples of colonial statutes regulating prices: MASS. COLONIAL LAWS (1630), p. 104, wages of labor; ibid. (1635), p. 120, and (1675), p. 236, forbidding excessive prices by shopkeepers and merchants; ibid. (1645), p. 80, price of beer; ibid. (1672), p. 8, price of boards; PLYMOUTH COLONIAL LAWS (1668), p. 156, price of boards; DANE'S AB., VII, p. 39 (1777), elaborate Mass. statute setting wages of labor, etc.; NEW YORK LAWS, 1778, c. 4, wages of farm laborers and mechanics and prices of many articles; GREENLEAF'S LAWs (New York), p. 275, requiring publishers to furnish books at reasonable prices.

There was no constitutional objection to such legislation by the states prior to the Fourteenth Amendment. With the Fifth Amendment in force Congress authorized the city of Washington "to regulate the sweeping of chimneys; . . . and to fix the rates of fees therefor." 3 STAT. 587, § 7.

For instances, see Commonwealth v. Shortbridge, 3 J. Marsh. (Ky.) 638; MASS. STAT. (1845) c. 191, § 2.

10 In the following cases the courts refused to compel gas companies acting under a permissive charter to serve all who applied at a reasonable rate: Paterson Gas Co. 7. Brady, 3 Dutch (N. J. L.) 245 (1858); McCune v. Norwich Gas Co., 30 Conn. 521 (1862); Com. v. Lowell Gas Co., 12 Allen (Mass.) 75 (1866). Perhaps the thoroughly

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