to care for himself as the foreman is to care for him, he is substantially on an equal footing with the foreman, and in a better position than the master to look out for his own safety. In such a case the foreman is not a vice principal, but he and the inferior servant are fellow servants. On the other hand, when the servant does not know or does not appreciate the danger to be avoided, and from his grade or position cannot be expected to know or appreciate such danger, while a competent foreman should be required so to do, it is not good public policy to hold that the master is not liable for the negligence of the foreman, resulting in injury to the servant. It is very often the case that the prosecution of the work requires a very high degree of skill and experience in the foreman, and but little skill or experience in the inferior servant, who is neither hired nor paid to exercise the skill necessary for his own protection. If the position of the foreman is one which requires of him superior knowledge or skill, which cannot be required or expected of the inferior servant, but which is necessary for the protection of such inferior servant, then, in regard to the exercise of such superior knowledge or skill, the foreman is a vice principal.

There must be something more in the inequality of the foreman and inferior servant than that which results alone from the one having the authority to hire, discharge, and oversee the other. It is the actual disparity or inequality between them which should control, and the disparity which gives the foreman the character of vice principal must be substantial, not merely slight. As far as I am able to discover, after much investigation, there are but two kinds of this disparity: (1) Disparity of knowledge; and (2) disparity of skill. Disparity of knowledge is where the foreman has or should have knowledge which the inferior servant neither has nor can be expected to have, the want of which knowledge on the part of such servant causes or contributes to his injury. Disparity of skill is where the foreman has or should have skill which the inferior servant neither has nor can be expected to have, the want of which skill on the part of such servant causes or contributes to his injury. The existence of such disparity of either or both kinds is a question of fact for the jury, and the bur

den is on the party asserting such disparity to prove it. The first case holding the foreman to be a vice principal, by reason of his having authority to hire, discharge and oversee the servant, was a case where there was such disparity of knowledge between the foreman and the inferior servant. It is the case of Railway Co. v. Stevens, 20 Ohio, 416, where two trains were, by the regular schedule or time card, in the habit of passing each other at a certain sta tion. New time cards were issued, changing the place of passing, to take effect on the day of the injury. One of these time cards was given to the conductor, but none to the engineer, who stopped at the new place of passing, and inquired of the conductor if a change had taken place. The conductor answered that no change was to take effect that day, and ordered the engineer to proceed. He did so, and a collision occurred, by which he was injured. The engineer was under the control of the conductor, who directed when the cars were to stop and start. It was held that the negligence of the conductor was the negligence of the master, and the defendant was liable. Railway Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184, is a similar There the train was in the habit of passing another train at a certain switch. The conductor got orders to pass at a different place on the day in question, but neglected to communicate the orders to the engineer, who attempted to run on to the usual place, and a collision resulted. It was held that the conductor was vice principal, representing the master, who was liable. In each of these cases the disparity between the engineer and the conductor consisted in the conductor having knowledge which the engineer did not have, but which was absolutely necessary for the safety of the engineer, and the want of which on the part of the engineer was the cause of his injury. In the case of Railway Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, there was no such disparity. The train consisted only of an engine, and was in charge of the engineer, who acted also as conductor, and the fireman was acting under his orders. The engine was running "wild," and had to keep out of the way of the regular train. The fireman was injured in a collision with that train. He knew, as well as the engineer, the time of the regular

case.

train, and that the engineer was running without orders. He knew that he could not look to the engineer or any superior officer for protection. There was no disparity of knowledge between him and any of his superiors. He knew as much about the situation as the engineer, and they each knew as much about it as any one else knew, or could be expected to know, under the circumstances. He and the engineer had knowingly entered upon a joint venture into danger, and they stood on an equal footing. It has been supposed that this case overrules the Ross case, but it certainly does not. In these three cases it conclusively appeared from the undisputed facts whether or not such actual disparity existed. In the Stevens case and the Ross case it conclusively appeared that it did exist. In the Baugh case it conclusively appeared that it did not exist. In each of these cases it was a question of law; but ordinarily, as in the case at bar, it is a question of fact, for the jury, whether or not such actual disparity existed. It is urged that this theory would overturn the rules of the common law. It might overturn some of the blunders of modern courts, but the common law never developed any rules on this question.

One of the clearest indications of the intentions of the framers of the Constitution in respect to direct taxation is a letter which has recently been republished in the Nation, from James Madison to Colonel Thompson. It was sent by Worthington C. Ford, Esq., of Washington, D. C., to the editor of the Nation, and in connection with the rehearing on the income tax law the letter will prove of no little interest and consideration. The letter is as follows: Jan 29th. 1789.

SIR

A convenient opportunity offering I take the liberty of adding to the former explanation of my sentiments relating to the federal constitution the grounds on wh I dislike a change of that part of it which authorizes direct taxes. I am led to give you this further trouble, by intimations that the necessity of such a trust in the Union is by many not truly understood; & is a subject on which the reasons in favour of my opinion may with propriety be suggested. Should I judge amiss, your candour will excuse

the communication. Should I judge aright, your discretion will make a proper use of it. I approve this part of the Constitution because I think it an essential provision for securing the benefits of the Union, the principal of which are 1st the prevention of contests among the States themselves: 2dly security against danger from foreign Nations.

On the first point it is evident that there is no way to prevent contests among the States but by establishing Justice among them: and equally evident that this cannot be done but by some system that will make each bear its just share of the public burdens. If some States contribute their quotas and others do not, justice is violated; the violation of justice is the ground of disputes among States as well as among individuals; and as among the latter they produce an appeal to the law, so among the former they produce an appeal to the sword. The question to be considered then is which of the two systems, that of requisitions or that of direct taxes, will best answer the essential purpose of making every State bear its equitable Shall we put share of the common burdens. our trust in the system of requisitions, by which each State will furnish or not furnish its share as it may like? Reason tells us this can never succeed. Some States will be more just than others, some less just; some will be more patriotic; others less patriotic; some will be more some less immediately concerned in the evil to be guarded against or in the good to be obtained. The States therefore not feeling equal motives will not furnish equal aids: Those who furnish most will complain of those who furnish least. From complaints on one side will spring ill-will on both sides; from ill will, quarrels; from quarrels, wars; and from wars a long catalogue of evils including the dreadful evils of disunion and a general confusion. Such is the lesson which reason teaches us. But we have a surer guide in our own experience; which like that of every other confederacy that has tried Requisitions, assures us that they will not be duly complied with; that they will not therefore answer the public exigencies, and that they moreover lay the foundation for injustice, for discord and for contention. I need not quote particular instances in proof of what is here advanced. The whole history of requisitions not only during the war but since the

to it as a Fund for borrowing: or if loans could be obtained at all, it could only be from usurers who would make the public pay threefold for the risk and disappointment apprehended. What would have been the condition of America at any period since the peace, that is under the system of requisitions, if Great Britain had renewed the war, or an attack had come from any other quarter, & money had become essential for the public safety? How was it to have been obtained? Would requisitions have obtained it from the states? There is not a man acquainted with our affairs who will pretend it. Would they have obtianed it in loans from individuals to be repaid out of Requisitions? There is probable not a man within the United States aiming at profit only who would have trusted his money on such a security; or who would not at least have exacted an interest of 20, 30, or 40 per cent., as an indemnification for the fallen state of public credit. then that the article of the Constitution in question is absolutely essential, whether we consider it as a means of preserving justice & tranquility among the states, or of preventing or repelling foreign wars.

We see

But besides these general considerations which affect every part of the Union, there are others which claim the most serious attention of the southern parts of it, & of Virginia particularly. If direct taxes be prohibited, and no reliance can be placed on Requisitions, the inevitable consequence will be, that whenever public exigencies arise, the duties will be accumulated on imports, until they shall have yielded every farthing that can be squeezed out of them. Now who is it that pays duties on imports? Those only who consume them. What parts of the continent manufacture least and consume imported manufactures most? The southern parts. It is clearly the interests of the southern parts therefore, and of Virginia particularly, that trade should not be overbur dened; but that direct taxes when necessary should come in aid of that fund; since being laid on all the states by an equal rule provided in the Constitution, they tend to equalize the general burden on every part of the continent. It is truly wonderful that from the same quarter it should be urged, as dangerous to yield a full power over trade. lest the northern interest should overburden it with duties, & as proper

to make an alteration, that might drive the government into the necessity of overburdening it. In another view the southern states have peculiar reasons for retaining the article of direct taxation. If war ever breaks out against America where will it fall? On the weakest parts. Which are the weakest parts? The southern parts; particularly Virginia, whose long navigable rivers open a great part of her country to surprise & devastation whenever an enemy powerful at sea chuses to invade her. Strike out direct taxation from the list of federal authorities & what will be our situation? The revenue from commerce must in great measure fall along with the security of commerce. The invaded and plundered part of the Union will be unable to raise money for its defence. And no resource will be left; but under the name of Requisitions to solicit benefactions from the Legislatures of other states, who being not witnesses of our distresses cannot properly feel for us; & being remote from the scene of danger cannot feel for themselves. Is this a situation in which any man who loves his Country ought to wish it to be placed? Are these the benefits for which Virginia can wish to stipulate as a return for her concessions in favor of a Union and a General Government? That a northern state should not be averse to expunge the power of direct taxation may be conceived; because a local interest is not always postponed to the general interest. that a Southern State should hearken to the measure, & be ready to sacrifice its local interest as well as the general interest, admits of no rational explanation to which I am competent. With great respect & esteem I am, Sir, your obedient & humble servant,

J MADISON, JR.

The United States Supreme Court, in the case of Brown v. Spilman, recently decided, . a lease for the sole purpose of mining for petroleum and gas, and piping the same, of "all of that certain tract of land described as follows, containing forty acres, excepting reserved therefrom, ten acres," specifically described, "upon which no wells shall be drilled without consent of the party of the first part," is a grant of oil and gas-well right for the whole forty acres, with merely a limitation as to drilling wells on the ten acres.

"The sixth question is Whether the taxes paid by the plaintiff, and sought to be recovered back in this action, are not direct taxes, within the meaning of the Constitution of the United States. In considering this subject it is proper to advert to the several provisions of the Constitution relating to taxation by Congress. 'Representatives and direct taxes shall be apportioned among the several States which shall be included in the Union according to their respective numbers,' etc. Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States.' 'No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.' 'No tax or duty shall be laid on articles exported from any State.'

"These clauses contain the entire grant of the taxing power by the organic law, with the limitations which that instrument imposes.

"The national government, though supreme within its own sphere, is one of limited jurisdiction and specific functions. It has no faculties but such as the Constitution has given it, either expressly or incidentally by necessary intendment. Whenever any act done under its authority is challenged, the proper sanction must be found in its charter, or the act is ultra vires and void. This test must be applied in the examination of the question before us. If the tax to which it refers is a 'direct tax,' it is clear that it has not been laid in conformity to the requirements of the Constitution. It is, therefore, necessary to ascertain to which of the categories named in the eighth section of the first article it belongs.

Paterson, justice, followed in the same line of remarks. He said: 'I never entertained a doubt that the principal - I will not say the only — object the framers of the Constitution contemplated as falling within the rule of apportionment was a capitation tax or a tax on land. * * The Constitution declares that a capitation tax is a direct tax; both in theory and practice a tax on land is deemed to be a direct tax. In this way the terms direct taxes,' capitation and other direct tax,' are satisfied.' "The views expressed in this case are adopted by Chancellor Kent and Justice Story, in their examination of the subject. Duties are defined by Tomlin to be things due and recoverable by law. The term, in its widest signification, is hardly less comprehensive than 'taxes.' It is applied, in its most restricted meaning, to customs; and in that sense is nearly the synonym of 'imposts.'

"Excise is defined to be an inland imposition, sometimes upon the consumption of the commodity, and sometimes upon the retail sale; sometimes upon the manufacturer, and sometimes upon the vendor. "The taxing power is given in the most comprehensive terms. The only limitations imposed are: That direct taxes, including the capitation tax, shall be apportioned; that duties, imposts, and excises shall be uniform; and that no duties shall be imposed upon articles exported from any State. With these exceptions, the exercise of the power is, in all respects, unfettered.

"If a tax upon carriages, kept for his own use by the owner, is not a direct tax, we can see no ground upon which a tax upon the business of an insurance company can be held to belong to that class of revenue charges.

"It has been held that Congress may require direct taxes to be laid and collected in the Territories as well as in the States.

"The consequences which would follow the apportionment of the tax in question among the States and Territories of the Union, in the manner prescribed by the Constitution, must not be overlooked. They are very obvious. Where such corporations are numerous and rich, it might be light; where none exist, it could not be collected; where they are few and poor, it would fall upon them with such weight as to involve annihilation. It cannot be sup