regulation of rates by the state cannot be carried. In general, a railroad is entitled to earn from its entire business a reasonable return upon the fair value of its capital investment, and any reduction which deprives it of such a return is confiscatory.18 Moreover, the state's power to regulate rates is confined to the business of the carrier within its limits, and any reduction of charges upon that business which throws a disproportionate burden upon the business conducted in other states or in interstate commerce is unconstitutional.19 And it may well be that a railroad cannot be compelled to transport a particular class of traffic at a rate which does not cover the actual out-of-pocket cost of moving it, since obviously such traffic can contribute nothing to the road's income.20 Finally, gross inequalities in the rates for different kinds of traffic moving under substantially similar economic conditions may well be interdicted as discriminatory. But the mere fact that each separate class of service does not yield a return exactly equal to its arbitrarily guessed proportionate share of total operating costs does not necessarily indicate that the charge for such service is confiscatory or discriminatory. It has never been thought that a railroad was entitled to earn a fair return from "every mile, section, or other part into which the road might be divided," 23 nor that every additional facility which it might be required to furnish should show a fair net profit to the company,24 and the court itself concedes in the principal cases that the rates need not be uniform for all commodities so as to secure the same percentage of profit on every class of business.25 The principal cases will no doubt settle the law contrary to the views here expressed; 26 and in the particular instances before the court the result is perhaps not regrettable, but if every rate fixed by the regulating authorities is to be subjected to this rigid test a serious

18 Coke & Coal Ry. Co. v. Conley, 67 W. Va. 129, 67 S. E. 613; Smyth v. Ames, 169 U. S. 466; The Minnesota Rate Cases, 230 U. S. 352.

19 Smyth v. Ames, 169 U. S. 466.

20 Chicago, St. P. M. & O. Ry. Co. v. Becker, 35 Fed. 883. But see Atlantic Coast Line R. Co. v. North Carolina Corporation Commission, 206 U. S. 1; Gulf Central & S. F. R. Co. v. Railroad Commission of Texas, 102 Tex. 338, 354, 116 S. W. 795, 796. In the exercise of the police power the state may doubtless compel the rendering of certain services at a loss. See Interstate Consolidated St. Ry. Co. v. Massachusetts, 207 U. S. 79, 86.

21 Lake Shore & M. S. Ry. Co. v. Smith, 173 U. S. 684. See 14 COL. L. REV. 442. But it is doubtful whether the company could object to the rates on the ground that they were discriminatory. See Willcox v. Consolidated Gas Co., 212 U. S. 19, 54; Tucker v. Missouri Pacific Ry. Co., 82 Kan. 222, 225, 108 Pac. 89, 90; Interstate Commerce Commission v. Chicago, R. I. & P. Ry. Co., 218 U. S. 88, 109.

22 Puget Sound Elec. Ry. v. Railroad Commission, 65 Wash. 75, 117 Pac. 739. See Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257, 267. But see 25 HARV. L. REV. 276.

23 St. Louis & S. F. Ry. Co. v. Gill, 156 U. S. 649; Chesapeake & O. Ry. Co. v. Public Service Commission, 83 S. E. (W. Va.) 286. See 13 MICH. L. REV. 407.

24 Atlantic Coast Line R. Co. v. North Carolina Corporation Commission, 206 U. S. 1; Missouri Pacific Ry. Co. v. Kansas, 216 U. S. 262; Chicago, B. & Q. R. Co. v. Railroad Commission of Wisconsin, 152 Wis. 654, 140 N. W. 296. But see Yazoo & M. V. R. Co. v. Railroad Commission of Louisiana, 130 La. 1012, 58 So. 862.

25 Northern Pacific Ry. Co. v. North Dakota, Supreme Court Official, Nos. 420,

421, p. 9.

26 A previous Note in the REVIEW, accepting for better or worse the current trend of rate-regulating authority, predicted this very fate of economic law at the hands of the courts. See 25 HARV. L. REV. 276.

obstacle has been opposed to an intelligent adjustment of charges according to economic conditions.

MAY A CRIMINAL PENALTY BE SHIFTED? — Whether one upon whom a criminal penalty has been imposed for an act of his own regarded as criminal, may shift the burden of his fine by a civil action against another primarily responsible was squarely presented by a recent English case. R. Leslie (Lid.) v. Reliable Advertising and Addressing Agency (Ltd.), [1915] 1 K. B. 652. The plaintiffs, moneylenders, had been fined for the statutory misdemeanor of sending circulars to an infant, because the defendant agency in addressing envelopes had, contrary to its contract, negligently included a minor's name. The moneylenders were allowed only nominal damages, it being considered contrary to the public interest that one so sentenced should not bear both his fine and costs. The question decided seems never to have arisen in this country. English authority is not abundant, but the question was discussed by way of dicta in two cases. The first, in 1834, took the view, in a suit against the managing editor of a newspaper by the proprietor who on his account had been fined for libel, that there was no right of compensation for an injury of this character. The second, at a much later date, attempted to introduce a qualification to this general rule against shifting a penalty. In this case a trooper brought an action of deceit for personal injuries sustained while innocently participating at the defendant's solicitation in the Jameson Raid in violation of the Foreign Enlistment Act.5 Neither criminal prosecution nor fine was involved, but one judge was of opinion that no public policy precluded one who had been convicted of a crime of which mens rea was not an element from receiving full indemnity. Prior to the principal case, this suggested exception does not seem to have been questioned, for in two subsequent cases persons convicted of the minor statutory misdemeanor of selling impure meat or fish succeeded in recovering the amount of their fines against their vendors on warranty without the legality being questioned.7

This dividing line of the English decisions allowing recovery over of fines only in the case of lesser crimes, at first sight seems analogous to the distinction in the law of torts as to contribution between tortfeasors. Although as a rule there is said to be no right of contribution, it is now somewhat generally established that there may be a legal adjustment of the loss unless the wrong was conscious, intentional, or immoral.8 1 A statement of the case appears in this issue of the REVIEW, p. 705.

2 BETTING AND LOANS (INFANTS) ACT, 1892 (55 & 56 Vict., ch. 4), § 2. MONEYLENDERS ACT, 1900 (63 & 64 Vict., ch. 51), § 5.

3 Colburn v. Patmore, 4 Tyrw. 677, 1 C. M. & R. 73. The case was decided, however, on a point in pleading. Cf. Poplett v. Stockdale, 1 R. & M. 337 (1825), in which Best, C. J., said, "It would be strange if a man could be fined and imprisoned for doing that for which he could maintain an action at law."

Burrows v. Rhodes, [1899] 1 Q. B. 816; see 13 HARV. L. REV. 215, 226.

5 1870 (33 & 34 Vict., ch. 90), § 11.

See Burrows v. Rhodes, supra, 831, per Kennedy, J.

Crage v. Fry, 67 J. P. 240; Cointat v. Myham, [1913] 2 K. B. 220.

8 See 12 HARV. L. Rev. 176, containing an explanation of the leading case of Merryweather v. Nixan, 8 T. R. 186.

The purpose of the general rule, which recognizes that the denial of contribution may, as among the tortfeasors, result in unfairness, is to create a deterrent upon this sort of conduct. Thus, for intentional conversion,10 defamation," or knowingly maintaining a danger,12 one jointly responsible cannot apportion his loss. But there may be contribution where there has been an unintentional conversion,13 or where one has been held responsible owing to some legal doctrine, such as partnership,1 respondeat superior,15 or the virtual suretyship of a municipal corporation for the safe condition of the streets.16

The principal case would seem more nearly to resemble the latter classification, where according to the later English cases involving crimes, as in the law of tortfeasors, the burden may be passed along or divided. The plaintiffs were innocent, in fact, and mens rea was not an element of the misdemeanor.17 Had the plaintiff been injured through loss of trade or in some such other collateral way on account of his conviction, there would therefore have been no objection to recovery. The only damages claimed, however, were the fine and costs, and these the court on account of the policy of the criminal law refused to recognize. Such a conclusion, involving as it does a rejection of the later English exception permitting the shifting of criminal penalties in the case of the lesser crimes, seems proper. There being a strong policy against minors receiving moneylenders' advertisements at all, the object of the legislature would be better effectuated by leaving the results of criminal liability where they fall. If the plaintiff could shift the pecuniary loss to the defendant, an additional safeguard against this evil would be simultaneously destroyed, for the incentive to each moneylender to see to it personally that none of his circulars reached minors would be lessened. Of course, it is possible that a subcontractor or agent might likewise have violated the statute, and have been fined himself. To shift the principal's fine to him also, however, would merely serve to accumulate the deterrents of criminal and civil liability upon one person presumably of less responsibility. Without regard to justice among the parties, the rule to prevail should be the one most likely to prevent the occurrence of the acts the statute intended to obviate. This policy of the criminal law would seem to require that a

See Thweatt's Adm'r v. Jones, Adm'r, 1 Rand. (Va.) 328, 333.

10 Peck v. Ellis, 2 Johns. Ch. (N. Y.) 131; Boyd v. Gill, 19 Fed. 145; Davis v. Gilham, 44 Oh. St. 69; Boyer v. Bolender, 129 Pa. 324.

11 Arnold v. Clifford, 2 Sumn. (Ú. S.) 238; Atkins v. Johnson, 43 Vt. 78. Libel stands on peculiar grounds for historical reasons, it being conclusively regarded as knowingly committed. See Kennedy, J., in Burrows v. Rhodes, supra, p. 833, referring to Colburn v. Patmore, supra: "The plaintiff though actually ignorant was legally cognizant of the publication of the libel."

12 Spaulding v. Oakes, 42 Vt. 343.

13 Adamson v. Jarvis, 4 Bing. 66; Thweatt's Adm'r v. Jones, Adm'r, supra; Acheson v. Miller, 2 Oh. St. 203.

14 Wooley v. Batte, 2 C. & P. 417; Pearson v. Skelton, 1 M. & W. 504; Horbach v. Elder, 18 Pa. 33.

15 Bailey v. Bussing, 28 Conn. 455.

16 Lowell v. Boston & Lowell R., 23 Pick. (Mass.) 24; Westfield v. Mayo, 122 Mass. 100; cf. Armstrong County v. Clarion County, 66 Pa. 218. See 28 HARV. L. REV. 636. 17 The fact that nominal damages were allowed in the principal case corroborates this view. The opinion of the court in claiming this was a crime involving mens rea seems to have been an unsuccessful attempt to reconcile the result desired with the previous English test.

punishment, whether in the form of fine or imprisonment, should always remain fixed with him upon whom it was imposed.18 The ordinary test of the law as to contribution or indemnity in the case of other elements of damage is inapposite to criminal penalties, because of the stronger policy of repression in the latter.

POSSIBLE INTERESTS IN ONE'S NAME OR PICTURE. "The law is utilitarian. It exists for the realization of the reasonable needs of the community." " So it is not surprising that with the advent of modern photography and the growth of a certain type of unscrupulous journalism the law has come to recognize to a limited extent an individual's right of privacy, a right not to have his personal affairs subjected to public comment and scrutiny without his consent. Yet the courts have handled the matter very unsatisfactorily.3 A recent case in New York evidences the confusion of thought which pervades the entire subject. The plaintiff secured from an actress the exclusive right to the use of her picture on posterettes. The defendant thereafter with the consent of the actress published and sold posterettes bearing the same picture. The court refused an injunction on the ground that the statutory right of privacy was a purely personal right, and therefore not subject to assignment. Pekas Co. v. Leslie, 52 N. Y. L. J. 1864 (N. Y. Sup. Ct.).

18 If, in a particular statute, it is not intended to preclude the adjudication of justice between the parties, a clause may be inserted declaring that any fine imposed under its provisions may be recovered in damages. See the English SALE OF FOOD AND DRUGS ACT (1875), § 78. In the absence of such a clause, it should be presumed that no such recovery over was intended.

1 Ames, "Law and Morals," 22 HARV. L. REV. 110.

2 Pavesich v. N. Eng. Life Ins. Co., 122 Ga. 190, 50 S. E. 68; Foster-Milburn Co. v. Chinn, 134 Ky. 424, 120 S. W. 364; Douglas v. Stokes, 149 Ky. 506, 149 S. W. 849; Munden v. Harris, 153 Mo. App. 652, 134 S. W. 1076; Edison v. Edison Polyform, etc. Co., 73 N. J. Eq. 136, 67 Atl. 392; Warren and Brandeis, "The Right to Privacy,' 4 HARV. L. REV. 193; WIGMORE, SUMMARY OF THE PRINCIPLES OF TORTS, § 148; COOLEY, TORTS, 3 ed., p. 364. In some states the right has been expressly recognized by statute. NEW YORK CONSOL. Law, ch. 6, §§ 50, 51; CAL. PENAL CODE, 8258. It can be waived by consent or voluntary submission to public scrutiny. Corliss v. Walker, 64 Fed. 280. See Pavesich v. N. Eng. Life Ins. Co., 122 Ga. 190, 199, 50 S. E. 68, 72. And it must give way if in conflict with the freedom of the press. Moser v. Press Pub. Co., 59 N. Y. Misc. 78, 109 N. Y. Supp. 963. See Pavesich v. N. Eng. Life Ins. Co., 122 Ga. 190, 204, 50 S. E. 68, 74.

3 The right of privacy, whether recognized or not, is generally considered a personal right. Relief granted: Pavesich v. N. Eng. Life Ins. Co., supra; Foster-Milburn Co. v. Cherin, supra; Douglas v. Stokes, supra. Relief refused: Roberson v. Rochester Box Co., 171 N. Y. 538, 64 N. E. 442; Henry v. Cherry & Webb, 30 R. I. 13, 73 Atl. 97. But a few courts grant relief on the ground of the violation of a right of property analogous to one's right in the products of his mind, such as unpublished letters, sketches, etc. Munden v. Harris, supra. Edison v. Edison Polyform, etc. Co., supra. And there is some judicial expression to the effect that both a personal right and a property right are involved. See the dissenting opinion of Gray, J., in Roberson v. Rochester Box Co., 171 N. Y. 538, 561, 564; also Colt, J., in Corliss v. Walker, supra, p. 282.

4 NEW YORK CONSOL. LAWS, ch. 6, § 51, provides: "Any person whose name, portrait, or picture is used for advertising purposes or for purposes of trade without written consent first obtained . . . may maintain an equitable action to prevent and restrain

Individual interests are not created by the law. They exist by virtue of the demands which each individual may make as a member of society in so far as such are not outweighed by the like demands of others. Only in so far as the law recognizes these interests are legal rights created. From this standpoint, and considered solely apart from the question of legal rights, an unauthorized publication of one's name or picture may involve at least three distinct interests. First, there may be the interest that his mental peace and comfort be not disturbed by dragging him before the public. This is obviously an interest of personality, and must be recognized if at all as a personal right of privacy. Secondly, there may be the interest in reputation - that he be not held up to hatred, contempt, or ridicule. If infringed, an action for libel will lie, although an interest in privacy may also be involved. Thirdly, there may be an interest in property. Herein lies the confusion. Generally, one's interest that his name or picture be not published broadcast is an interest of personality. But if the owner has treated it as of pecuniary value, or if by virtue of his profession or business it has become such, privacy ceases to be the dominant element, for there is now the distinct interest of substance that no one interfere with that name or picture to detract from its value. A celebrated artist's name is as much a part of his property as the picture he paints, for it gives added value to his productions. Again, if an actress uses her picture as an advertisement, it becomes for her a valuable asset which the law should recognize as property. But the interest of a sensitive girl is far otherwise. She is strongly opposed to publicity. A surreptitious use of her photograph causes her no pecuniary loss whatsoever, but only mental distress. To the actress, however, publicity is the very thing desired. It is another's unauthorized interference with a pecuniary interest which she complains of. And just as the interests are distinct, so the rights securing them are distinct. Whether the interest, and consequently the right, is one of substance or of personality must be considered from the

the use thereof, and may also recover damages. The statute is construed as creating a personal right of privacy. Rhodes v. Sperry & Hutchinson Co., 193 N. Y. 223, 85 N. E. 1097; Riddle v. MacFadden, 201 N. Y. 215, 94 N. E. 644.

Pound,

"Interests of Personality," 28 HARV. L. REV. 343.

Ibid., p. 362. Relief may be had by an injunction as well as an action for damages, for the better view is that the restraining power of equity extends over personal as well as property rights. Pierce v. Swan Point Cemetery Proprietors, 10 R. I. 227.

7 Peck v. Tribune Co., 214 U. S. 185. See Munden v. Harris, 153 Mo. App. 652, 662, 134 S. W. 1076, 1080.

8 This distinction is clearly recognized in the Civil Law. BAUDRY-LACANTINERIE, PRÉCIS DE DROIT CIVIL, Vol. 1, §§ 116, 119; ENNECCERUS, LEHRBUCH DES BÜRGERLICHEN RECHTS, Band 1, Abteilung 1, § 93, (9) NAME. But there is some conflict in the common law. The English doctrine seems to be that the owner must have actually used his name (or picture) in a commercial way, or relief will be refused. Dockrell v. Dougall, 78 L. T. 840. See Clark v. Freeman, 11 Beav. 112, 119. The better view would seem to be that if one's name had become an asset through reputation the law should protect it as such although not actually put to a business use. Mackenzie v. Soden Mineral Springs Co., 27 Abb. N. C. 402, 18 N. Y. Supp. 240. In Edison v. Edison Polyform, etc. Co., supra, the court based its decision on the broad ground that every private individual has a property right in his name or picture. There was no doubt a property right involved under the particular facts, for the interest of a famous inventor in his picture is clearly one of substance.