was appointed? The petitioner contends there was not, and in support of his position has referred the court to the cases of Com. ex rel. vs. Hanley, 9 Pa. 513; Com. ex rel. vs. Barrett, 37 Leg. Int. 17, and Com. ex rel. vs. King, 85 Pa. 103. In the first of these, Brooks, the clerk-elect of the orphans' court of Philadelphia, died between the date of his election and the time for entering on the duties of his office. The governor of the state, on the ground that Brooks's death created a vacancy, appointed a person as his successor. In the second case there was a tie vote between two candidates for the office of prothonotary of Bucks county. On the same ground the governor appointed one of these candidates to fill the vacancy. In the third case the sheriff of McKean county died in October, 1875, within three weeks of the regular triennial election at which a sheriff was to be elected. The governor made an appointment to fill the vacancy, the commission of his appointee running till the first Monday of January, 1877. In all these cases the action of the several governors was reversed by the Supreme court. In each case, as 't arose, it was held that the facts surrounding it did not cause a vacancy, and that the prior incumbent of the office held over till his successor was duly qualified. It is unnecessary to refer to the facts in these cases in detail, nor will we stop to point out wherein they differ from the facts of the case before us. In our opinion the principle decided by them rules this case, and sustains the contention of the petitioner. This may also serve to show that governors, with time for due deliberation, are as liable to mistake the extent of their power to make appointments as are the judges of our courts in their haste. No objection was formally raised to the proceeding by petition. The appointment of Mr. Farquhar revoked. Note. Bechtel, A. J., did not take part because of his relationship with the petitioner.-C. C. Reports. Enforcement of the Interstate Commerce Act. The impossibility of enforcing the Interstate Commerce Act as it now stands is emphatically stated in the Twelfth Annual Report of the Interstate Commerce Commission as follows: "Until further and important legislation is enacted the best efforts at regulation must be feeble and disappointing. 24 LACKAWANNA LEGAL NEWS "Meanwhile the situation has become intolerable b. th from the standpoint of the public and the carriers. Tariffs are disregarded, discriminations constantly occur, the price at which transportation can be obtained is fluctuating and uncertain. Railroad managers are distrustful of each other, and shippers all the while in doubt as to the rates secured by their competitors. The volume of traffic is so unusual as frequently to exceed the capacity of equipment; yet the contest for tonnage seems never relaxed. Enormous sums are spent in purchasing business, and secret rates accorded far below the standard of published charges. The general public gets little benefit from these reductions, for concessions are mainly confined to the heavier shippers. All this augments the disadvantage of large capital, and tends to the injury and often to the ruin of smaller dealers." The demoralizing effect of widespread violations of law can hardly be overstated. There have been rumors of organized systems of unlawful business which relied for safety on secrecy of methods and records, as well as on the bribery of those who might discover their secrets. If the Interstate Commerce Act cannot be made effective, let it be repealed. The disgrace of unenforced laws ought not to be tolerated. Judicial Opinions on Proposed Laws. The submission of proposed laws to the supreme court to get its opinion as to their constitutionality has been advocated by many people as an important reform. It is obvious, of course, that much inconvenience and some hardships often result from the overthrow of statutes after they have been acted upon. The avoidance of these evils would be very desirable. Why, then, these people ask, should an unconstitutional provision not be declared so before its enactment, and not after it has been acted upon? Like many another invention, this plan involves more than its authors consider. As the court said in Re Construction of Constitutional Provision (S. D.) 19 L. R. A. 575, the judges in such case must act "both as court and counsel upon ex parte proceedings." The inestimable aid given in the determination of hard questions by the opposing arguments of couns in actual litigation could not be had when giving ad visory opinions about prospective legislation. This is the weak spot n the system, and it is not sufficiently appreciated by advocates of the proposed reform. They seem to assume that judges must be always ready to express final opinions on all legal questions without hesitation, just as the average client expects his attorney to know all the law offhand. The right of the legislature, or of the executive, or of both, to demand such opinions from the supreme court, is in fact created by the Constitutions of several states. The practical operation of the system may not have been sufficient to prove very much for or against it in most states. Doubtless the opinion of the court has in some cases prevented the enactment of invalid statutes, but in a case of real difficulty the opinion of the court given in advance of any litigation, and without opposing argument of counsel, can hardly be satisfactory. The plan is well characterized by the clear-headed editor of the "New York Law Journal," who says, "Superficially the idea is a taking one."-C. and C. Elizabeth Beach vs. City of Scranton. Common Pleas of Lackawanna County, No. 467, September Term, 1896. Municipal Law-Negligence-Liability. For negligently allowing a street gutter to fill up so that the water overflows and causes damage to an abutting property holder the city might be held liable, but for a mistake in judgment as to the capacity of the gutter, the city cannot be held responsible. A municipality is not answerable for an action of nature by which dirt or sand is washed from a higher to a lower level and deposited in ditches or drains. It is only where this occurs by reason of some neglect on the part of the municipal authorites, or having occurred is negligently allowed to continue, that a liability occurs. Where a city by grading diverts water from its natural course and carries it where it has not previously run, it is bound to take care of it. A city is not bound to fill out a street to its full width if in the judgment of the authorities it seems best not to do so, but it is answerable for any attendant injury if this is not done. A municipality is not liable for injury, from surface water, which results to property by reason of it being below grade, where this occurs without negligence on the part of the municipality. But when the work of grading a street and constructing gutters, culverts and drains is left in such an unfinished condition and negligent state as to cause water to flow upon and injure private property the municipality is liable. The city graded a street in front of plaintiff's property and on her complaint that the necessary embankment at that point would extend over on to her property, only filled out the street to about one half its width leaving a hole some one hundred and fifty to two hundred feet long and about fifteen feet across. No gutter to carry the water around this was provided and the water flowing on the street went down into the hole and so over on to the plaintiff's property: Held, That for any changes to the property necessitated by the plan of the street as so made the remedy was by proceedings under the statute for compensation, and held further, that as to injuries caused by water flowing onto the premises by reason of the condition in which the street was left the city was liable in trespass for the attendant damages. The measure of damage in any such case is not the difference in the value of the property before and after, the injury not being permanent, but merely the damage inflicted by each separate act of flooding caused by the neglect of the city. Exceptions to referee's report. J. H. TORREY, City Solicitor for Exceptions. ARCHBALD, P. J., February 15th, 1899.-The plaintiff's complaint against the city appears to be two-fold: that the gutter on the west side of the street was not of sufficient capacity, or was allowed to fill up-it was not quite clear which—and that the street on the east side in front of her property was so graded that no gutter was or could be made, whereby the water flowing down that side was cast directly upon her. t As to the first of these, she has clearly made out no case; if it is the capacity of the gutter with which she finds fault, she could, of course, have none, since that rests in the judgment of the city authorities, and for a mistake in judgment the city is not responsible. For negligently allowing the gutter to fill up, there might be a liability, but this the plaintiff has not shown. She has simply contented herself with proving that on certain occasions it filled up and overflowed, but that is not enough. The city is not answerable for the action of nature by which dirt or sand is washed from a higher to a lower level and deposited in ditches or drains. It is only where this occurs by reason of some neglect on the part of the city authorities, or, having occurred, is negligently allowed to continue, that a liability accrues, neither of which in the present instance has been shown. On the second branch of the case, somewhat more is to be said. Aside from any question of damage from surface water, the plaintiff can recover nothing in this action for the condition in which the street in front of her property was left by the attempt made to grade it; that was a matter to be considered in proceedings under the statute to assess the damages caused by the grading, and, if so, cannot be considered here. The condition in which property is left by a street improvement and the steps made necessary to put it into shape are always proper subjects of inquiry by viewers appointed to determine the attendant damage. If, therefore, in grading a street, the natural lay of the ground is higher or lower than the level of the street, as established in front of a particular portion of it, the detriment to the adjoining property is clearly a constituent part of the damages sustained by reason of the improvement, to be assessed in proceedings under the statute in favor of those who have suffered thereby. This would include a failure to grade the street to its full width as was the case here where that was a part of the plan. Suppose for instance that a ravine was crossed by the street and the city decided to span it with a bridge rather than to undergo the expense of a heavy fill, would not that and all that it might entail on abutting properties be proper for consideration in estimating the ensuing damages? Or, suppose under like circumstances the city authorities made a fill, and in order not to have the slope of the embankment extend over the limit of the street on to private property they narrowed up the street so that it would not; if his made the situation of any piece of property located at the ravine or in its neighborhood worse than it had been before, will anyone question but that it would be an element of damage to be awarded to the property owner on proceedings duly instituted for that purpose? The condition of the property as affected by the improvement as actually made on the ground is the controlling question; in whatever way it is put at a disadvantage, the owner is entitled to that extent to compensation. It may require a grading up or a grading down of the property, or there may be some other inconvenience of access to be overcome; but, whatever it be, if it is a disadvantage, it enters into the damages to be assessed and paid by the municipality. In the present instance, the way in which the street was left in front of the plaintiff's place was undoubtedly a detri |