constructed as provided by the O'Connor bill; and, as the chairman stated, the only point on which there seems to be a hesitation is as to establishing the seat of the Appellate Division. There seems to be no reason why two committees, composed of lawyers who have been engaged more or less in active practice, should entertain any doubt as to the permanent location of the Appellate Divisions in one place for the entire year and for all time. Any intelligent lawyer who has ever given any attention. to this subject knows that the least chance of making a migratory court out of the new Appellate Division will absolutely rob it of any benefit which it was intended should accrue to this new court by the Constitution.

judges agreeing to remain there, making it their judicial home, if not their actual residence. John G. Milburn, Esq., of Buffalo, spoke against the O'Connor bill, and desired that the seventh and eighth districts should be made the fourth department, while Judge McLennan, of Syracuse, spoke against putting the fifth, seventh and eighth districts into the fourth department, and favored putting the second and third together. The judge. however, failed to mention the fact that the governor could designate justices to do the work in other departments. Several lawyers from Brooklyn spoke against putting the third district with the second. Mr. J. Stuart Ross, of Brooklyn, delivered an argument against the O'Connor bill, on the theory that they have too few judges. It must be remembered, however, that during the Constitutional Convention the delegates from Brooklyn on the judiciary committee claimed that the number of judges apportioned to them under the pres-user by a railway company of land acquired by ent scheme was sufficient-in fact more than

they needed to cope with the work of the second department. It is only reasonable to say here that the second department could have had more judges apportioned to them by the Judiciary Article if the Brooklyn members on the judiciary committee of the Constitutional Convention had not repeatedly asserted that they had plenty under the existing law. William Vanamee, Esq., of the second department, also spoke against the jointure of the second and third districts on the ground that it would be unconstitutional, as the population of the two districts combined would not be uniform with the others. L. E. Carr, Esq., of Albany, said that under the O'Connor bill the business of the third, fourth and fifth districts would equalize the work of the sixth, seventh and eighth, and that each would have about 600 cases a year to determine, which was an additional reason why the O'Connor bill was fair and proper. Elbridge L. Adams, Esq., of Rochester, who was sent by the Rochester Bar Association, also spoke in favor of the O'Connor bill, and in opposition to the idea of putting the second and third districts together. David Hayes, Esq., of Rochester, also spoke against the juncture of the second and third districts, and in favor of the O'Connor bill. There seems to be no doubt, even in the minds of the committee, but that the departments should be

The English Court of Appeal, in the case of Foster v. London, Chatham & Dover Railway Co., have decided another case of the mode of

them. The plaintiff sought an injunction re-
straining defendants from using certain lands,
acquired for a pathway, for the purpose of ten-
ants who had leased part of the adjacent prop-
erty to the company and who held as such ten-
ants from year to year. It was maintained that
the company had no right to let their arches
adjoining this strip of land for business pur-
poses. The question was whether the use of
the arches and the strip of land behind each,
held by tenancy from year to year, was incom-
patible with any of the purposes for which
powers had been conferred upon the company.
Judge Matthews, in writing the opinion of the
trial court, holds that there was no evidence
that what done by the company was ultra vires.
He says: "It is in the power of the railway
company to assume possession of the railway
arches and the lands behind on giving notice
at any time that they think necessary, and on
the giving of such notice they would have
possession of the lands for the purposes of
their railway; that the strip of land is not su-
perfluous *it was obviously the piece of
land which was desired by the company for the
purpose of repairs, if repairs were desired, and
for the purpose of extending their railway, if
hereafter it should appear to them desirable
that that should be done.
No evi-
dence was gone into before me to establish that
what was done by the defendants was such an

*

*

* * *

it does embrace 'every species of commercial intercourse' between the United States and foreign nations and among the States, and therefore, it includes such traffic or trade, buying, selling and interchange of commodities, as directly affects or necessarily involves the interests of the people of the United States. 'Commerce, as the word is used in the Constitution, is a unit,' and 'cannot stop at the external boundary line of each State, but may be introduced into the interior.' 'The genius and character of the whole government seems to be, that its action is to be applied to all the exter

interference with the rights of the plaintiff as to amount to a nuisance, nor in the acts set up on the pleadings." Lord Holsbury, in writing the opinion affirming the judgment of the lower court, says: "There is no proposition of law established by authority which prevents the railway company from using the land in question and their arches which they do not actually require for the purpose of sending an engine backward and forward on the line or for some other purpose that may afford profit to them." Smith, L. J., in his opinion affirming the judgment of the trial court, says: "It has been urged on the plaintiff's behalf that inas-nal concerns of the nation, and to those internal much as the defendants purchased this land for the purpose of their railway, the letting of these arches for profit is not a purpose of carrying on the railway and that it is ultra vires, and that, therefore, the plaintiff has a locus standi in a court of law to prevent this being done by * I am satisfied from the authorities which have been cited by the learned counsel on both sides that the plaintiff's counsel are not right in their proposition that the railway company, when it purchased the land for the purposes of the railway, was only authorized to run their trains backward and forward and to have stations, etc., for the purpose of carrying goods and passengers upon the railway." The principle decided seems to be that where a company can regain the possession of land within a reasonable time, as from year-to-year tenant, there is no reason why it should not lease a certain part of the property for the purpose of gain, and that such a use of the land is not ultra vires.

the company.

*

concerns which affect the States generally.' These principles were announced in Gibbons v. Ogden, and have often been approved. It is the settled doctrine of this court that interstate commerce embraces something more than the mere physical transportation of articles of property, and the vehicles or vessels by which such transportation is effected. In County of Mobile v. Kimball, 102 U. S. 691, 702, it was said that commerce with foreign countries and among the States, strictly considered, consists 'in intercourse and traffic, including, in these terms, navigation and the transportation and transit of persons and property, as well as the purchase, sale and exchange of commodities.' In Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 203, the language of the court was : Commerce among the States consists of intercourse and traffic between their citizens, and includes the transportation of persons and property, and the navigation of public waters for that purpose, as well as the purchase, sale and exchange of commodities. The power to regulate that commerce, as well as commerce with foreign nations,

In

In the case of U. S. v. E. C. Knight Co., Spreck-vested in Congress, is the power to prescribe les Sugar Refining Co. et al., Judge Harlan, in writing a dissenting opinion, discusses most fully the question as to "What is Commerce 'What is Commerce among the States?" In it he says: "What is Commerce among the states? The decisions of this court fully answer the question. 'Commerce, undoubtedly, is traffic, but it is something more; it is intercourse.' It does not embrace the completely interior traffic of the respective States - that which is 'carried on between man and man in a State, or between different parts of the same State and which does not extend to or affect other States' but

the rules by which it shall be governed, that is,
the conditions upon which it shall be conducted;
to determine when it shall be free, and when
subject to duties or other exactions.'
Kidd v. Pearson, 128 U. S. 1, 20, it was said
that buying and selling and the transportation
incidental thereto constitute commerce.' Inter-
state commerce does not, therefore, consist in
transportation simply. It includes the pur-
chase and sale of articles that are intended to
be transported from one State to another
every species of commercial intercourse among
the States and with foreign nations."

The Law Journal publishes an interesting by the same process of comparison this item, I article which was published in the Pall Mall am brought to the very drawer in which there Gazette, and which was an interview of one of may be a duplicate of the card I held in my its correspondents with M. Bertillon, who has hand I pulled out the drawer, which I found reduced to a science the measurements of crimi- to contain some 300 or 400 cards. These are nals and the classifications of their weights, once more subdivided into large, medium, and sizes, heads, and the other parts of their body small forearms. My man belonged to the small so that they may the more easily be identified forearm class, so I devoted my attention to years after their measurements have been taken. about 100 cards under this heading. It would The manner of detecting a criminal who has only need now to look through this 100 in once been measured are so clearly explained order to learn the truth, but M. Bertillon saves that it is only necessary to give the article: "On us the trouble by classifying this last lot accordentering with him the measuring room, I saw ing to color of eyes. The card I seek must be gathered together at one end, under the charge marked like mine, Cl: I in eyes. There are of a warder, a batch of accused persons awaiting three marked so. The last is the same, point for their turn. M. Bertillon ordered one of them point, as the one I hold in my hand. On the to stand forward. He had been arrested the back is the photograph, taken four years ago, night before on a charge of begging, and on of the man at my side, who pales a little at the being asked his name gave it at once. To the sight of it. I compare the two cards. The question whether he had ever been arrested only difference is in the name of the accused, before he replied in the negative. M. Bertillon who, under a false one was condemned four ordered him to submit to measurements being years ago to two years' imprisonment for theft. taken, and when the card was complete in all 'C'est vrai' was all he said as he turned sullenly its details, M. Bertillon handed it to me and away." asked me to myself verify the man's statement. I went to the rows of pigeon-holes, or shelves, covering one side of the room. I took first the category of heads, and by looking at my card I saw that in length of head my man was marked 18.7. Length of head has three divisions, and the figures outside the pigeon-holes enable me to determine whether this particular case belongs to the large, medium, or small division. As I saw that the figures 18.5 to 19.0 denote a medium length head, I could class 18.7 in this category. Henceforth I knew that my man was to be found, (if at all) in the grand division of medium-length heads. Next as to breadth of head: 15.4 to 15.8 is a head of medium width, and on my card the figure marked was 15.5. As far as heads were concerned, I could now ignore all sections except those of medium length and breadth. The next category was that of length of little finger, and here again I could determine to what class my friend belonged. Each classification, by reducing the number of pigeon-holes in which the fatal card may be ultimately found, brought me one step nearer to the accomplishment of my task, and the vindication or condemnation of the man beside me. The fourth subdivision is that of length of foot, and having ascertained

We publish in this issue of THE JOURNAL an article on "The Method of Code Revision " by George A Benham, Esq., of the Troy bar, who has been engaged for a considerable time in writing articles and making a study of the procedure law of this State. There seems to be a unanimity of feeling among lawyers who venture to express their feelings in the same vein as Mr Benham, that the code needs a revision which will simplify it and eradicate many of the complicated rules and regulations which exist in the present voluminous work which is called a code. After a thorough discussion and elaboration of the ideas of lawyers on this subject it may be possible to prevail upon the Legislature to give the legal profession a code simplified by one or two persons of practical experience and who have no "pet hobbies" to pass off as practical methods of proced

ure.

In Lichtenberg v. McGlynn (Cal), 38 Pac. Rep. 541, it was decided that the holder of a claim against a decedent's estate can recover only the amount for which the claim was presented, and rejected by the executors or by the judge of the Superior Court.

GOVERNMENT REGULATION OF RAIL-
ROAD RATES.

(A paper read before the New York State Bar Association, by MARTIN A. KNAPP, Interstate Commerce Commissioner )

N°

a corporation to construct and operate a railroad is radically different from the "right" of the public to use its facilities. It is one thing to own a railway; it is quite another thing to be entitled to its services. One is a property right, the other a per

O problem in law-making is more important or perplexing than the nature and extent of ap-sonal right; one is a possession, the other a privilege; propriate legislation affecting the charges of railway carriers. It is a subject upon which many volumes have been written and which many more will not exhaust, for it touches the welfare of every person and taxes the resources of public authority. Transportation by rail is of such recent advent and has developed with such amazing rapidity that neither its rights nor its obligations are yet adequately defined. The railroad of to-day is not only the chief agency by which the internal commerce of the country is carried on, but its influence upon other pursuits is so powerful, and its relation to every form of industry so intimate and vital, that its proper place within the sphere of government control presents an inquiry of the gravest import.

one is an acquisition, the other an endowment; one may be bartered away, the other is "inalienable." In the very nature of organized society, transportation is a constant and universal necessity. It stands in the catalogue of primary wants. It is as essential to industrial life as the atmosphere is to animal life. It is the bond of union whereby mankind are held together, the medium of all associated effort and achievement. There is no place where its agencies are not indispensable, no time when its services are, not imperatively demanded. It is the ever-present and unyielding condition upon which personal welfare and social progress continually depend. It follows, therefore, from the fundamental and necessary office of public transportation that to provide the highways of travel and the agencies of commercial exchange is a function of government in every sense legitimate and in every respect essential. To regard these agencies as a species of property, subject to the same rules which govern the accumulation and management of other possessions, is a mistaken and mischievous conception. Transportation is not a commodity, but a service. Its physical appliances, its fixtures and franchises are property, they are acquired; not so the right to its facilities that is enjoyed. The ownership of the carrier is the privilege of the public. The business of pro

The principal purpose of this paper is to point out the distinctive and peculiar function of public transportation as indicating the range and character of the restraints to which railroad charges should be subjected. Upon this point there exists much confusion of thought and a surprising want of correct understanding. The exactions and intolerance, the partiality and injustice which give rise to such frequent complaints against railway carriers may be attributed in great measure to a common misconception of the nature of their services and the office which they perform. The inherent difference between transportation and the various industrial vo-viding this public privilege differs from every form cations which depend upon it is often ignored or wholly overlooked. Both the managers and the patrons of railroads are slow to perceive that the business of public carriage is essentially unlike all private occupations. The agencies by which intercommunication is effected, and by which all the products of labor acquire exchangeable value, are not always regarded as the instruments of a public service, at once unique, incomparable and indispensable, but rather as mere private possessions to be dealt with as interest or caprice may determine. Even the opinions of learned judges and the language of legislative enactments not unfrequently disclose ignorance or indifference respecting this distinction. The laws by which railway corporations are created are framed in close analogy to the statutes under which corporate bodies are formed for other purposes, the legal regulations applied to their operation and management are substantially the same for both classes, and in a variety of ways the public function of the former is confounded with the private character of the latter. Now it cannot be too strongly insisted that the "right" of

of private enterprise for it is afforded solely by virtue of authority proceeding from the State. There is no natural right in the individual to engage in the business of railway transportation, because that business can be carried on only by taking private property against the will of the owner, and that high prerogative belongs to the government alone. To furnish the means of public carriage, the railroad must exercise extraordinary powers which are secured from and delegated by the State. Through these delegated powers, by the aid of this unusual and supreme authority, it participates in the duties of civil administration and discharges obligations which are founded in the constitution of society. The railroad, therefore, can rightfully do nothing which the State itself might not do if it performed this public service by its own agents instead of entrusting it to the corporations which it has created. Upon this foundation, laid in the nature and necessities of social order, rests the inherent right of every person to just and equal treatment in all that pertains to railway transportation. The railroads are engaged in a public service, and that service