many others, but I only mention these because I happen to have before me Webster's Dictionary, which gives quotations from both these authors." Twogood v. Pirie, 56 L. T. Rep. (N. S.) 394.

If there is one "Americanism" more offensive than another it is "rig," to describe a horse, wagon and harness. It is just fit for those horse-legislators who voted for the "pool" bill. It smacks of "thimble-rigging." It makes us sad to see it used by a very intelligent reporter in a head-note in a recent volume of State law reports. The word in this sense or rather nonsense is not recognized

IN

NOTES OF CASES.

N Shippey v. Village of Au Sable, Michigan Supreme Court, April 21, 1887, it was held that a municipal corporation must use its own judgment in regard to the manner in which cross-walks shall connect with sidewalks, and a village cannot be held liable for an injury to a child caused by a part of a cross-walk, put down by a property owner, being allowed to remain a few inches higher near its intersection with the sidewalk than another part thereof. The court said: "The practice is general, if not universal, of having a sharp fall at the curb

of Americanisms.

Among the names suggested for the appointment to the vacant place on the Supreme Court bench we hear that of Judge Somerville, of the Alabama Supreme Court, who has, it is said, the nearly unanimous indorsement of the profession in his State. This is certainly a highly respectable nomination. We know Judge Somerville, through the law reports of Alabama, as a learned member of a court which we have always considered one of the ablest in this country. His age-fifty years — is strongly in his favor.

Mr. Ignatius, Donnelly does not give us the promised cypher to demonstrate that Bacon wrote the Shakespearian plays, but he treats the North American Review to a rehash of the stale and puerile conjectures which satisfy some minds of the soundness of his theory. Among other "arguments" he says Shakespeare never claimed the authorship. This is not true, except as it respects the publication of the plays, but granting it, neither did Bacon claim the authorship, and that is one of the strongest evidences that he had no claim to it. There was no reason why Shakespeare should claim what was accorded to him. There was every reason why Bacon should claim, posthumously at least, what nobody supposed to belong to him.

The

the division between sidewalk and street. There is usually a similar drop at street crossings for surface drainage, which would require the upper walk and the street crossing, if made continuous, to be made so by bridging. There is no authority that we are aware of which prevents such a step from being made and maintained. It is among the commonest things found in cities and villages. gutters parallel with sidewalks, and generally bordering them, are never covered throughout, and all persons passing into the street, except at a corner crossing, must step down to reach it. The danger of falling would be the same whether at a crossing or elsewhere; and whatever might be expected of grown persons, small children left to themselves would be quite as likely to stray off to the one place as to the other. In this case the court charged the jury that the responsibility, laid on corporations by the statute under which this suit was brought, relates as well to the mode of construction of the crossing or of the highway as it does to the condition it is thereafter in. Now, what would be a reasonable mode of building a cross walk in one city might not be in another. There might be in some cities narrow streets and steep declivities, which would make it absolutely necessary to put some steps in a sidewalk, or in a road, or on a crosswalk. It is for you, gentlemen of the jury, under all the testimony in the case, to say whether it was reasonable in the village of Au Sable to put that break in the sidewalk, as testified to, or not. What might be a reasonable condition for an adult person might not be for a child. Our children have as much right on our streets and highways as adult persons. They have a right to walk there, and have a right to play there; and if the walk or highway is in a condition unreasonable and unsafe, why, if damage results, the child is entitled to those damages.' And in a subsequent part of the charge this further instruction was given: 'Now, upon the question of damages, as I have already stated, what might be a reasonable condition for a walk to be in for a grown person might not be for a child. The age of the child must be taken into consideration in considering whether the walk was in a reasonable condition or not.' This last clause occurs in a discussion of what should be the rule of damages, and would in that connection lead to some inference that the damages were to be meas

ured more or less by the fault of the defendant, and not merely by the injury to plaintiff. From this charge it is evident that the attention of the jury was chiefly, if not entirely, turned to the faulty plan of the walk, and not to its being an injurious interference with an existing walk, rendering it unsafe. The reasoning in the rest of the charge leaves no doubt of what was in the mind of the court. It is evident from the language of the court, above quoted, as well as from other remarks in the charge, that the able judge who tried the cause was of opinion that the cases, decided in this court, of Detroit v. Beckman, 34 Mich. 125; S. C., 22 Am. Rep. 507, and Lansing v. Toolan, 37 Mich. 152, had ceased to be applicable since the statute of 1879, under which this suit was brought. Since the trial of this cause two decisions of this court have been made which hold otherwise. The case of Williams v. City of Grand Rapids, 26 N. W. Rep. 279, not only resembles this case very closely in its facts, but resembles it precisely in the questions laid before the jury. It was there held to be beyond the authority of courts to interfere with the action of cities in determining where to build walks, or upon what plan. Reference was there had to those earlier decisions. In Davis v. City of Jackson, 28 N. W. Rep. 526, the same rule was laid down concerning the construction of public ways and surface gutters. In all but the last-named case the injury was caused by falling from a level surface into a depression made or left adjacent to or across it, and in each it was held there was no liability. The reasons for this are fully set out in those cases. All municipal ways must be put under the supervision of the public authorities. It is for them to decide what works shall be undertaken, and how the general safety and convenience require them to be built. There must be some final arbiter as to the

proper way of doing this. In many cases plans more or less formal must be considered, and taxes or assessments levied to complete them. If it can be referred to a jury to determine on the propriety of such action, there will be as many views as there are juries, and it can never be definitely known when a municipality is safe. It is beyond human ingenuity to devise a plan which is not capable of danger to heedless persons, or of young children, who cannot be expected to appreciate the danger. Reasonable safety is what the law requires, and no more. Harris v. Clinton Township, 31 N. W. Rep. 427. In the present charge this matter was carried to extreme results, for it was practically laid down that any thing that was not safe for children was unlawful. Such a fall as this child met with might have happened to her upon any stair or step, or upon any curb-stone, or from stumbling against any thing large or small which she encountered. The injury itself was extreme and uncommon, if not extraordinary. In making walks and connections the authorities, who are always supposed to use common judgment and fidelity, may generally be relied on to do what seems to be reasonably safe and cautious for people of all ages. But they may

also fairly assume that parents will use such caution in taking young children along the highways as will guard them against such dangers as are not improbable. Had these walks been connected by a bridge the child might about as easily have fallen over the side or curb. The rule laid down is impracticable, and there is probably no city where it is or could be followed. Even an unbroken dead level of streets and walks would not entirely prevent the danger, while it would introduce many worse ones, which the usual division of ways for foot and other travel, with paving and drainage, would necessarily obviate."

In Turner v. Mason, Michigan Supreme Court, April 28, 1878, an action by an artist to recover the value of a portrait of children painted for a father, which he refused to accept, held, error to instruct the jury to give as damages what the picture was worth, and what the artist's services were worth, taking into consideration the exhausting studies necessary to acquire skill as an artist, and the time consumed and expenses incurred in acquiring professional knowledge and distinction. The court said: "It appeared on the trial, and is matter of common knowledge, that the compensation of artists is not generally measured by intrinsic merit, either of themselves or of their pictures. Until he is recognized as a celebrity an artist seldom charges, or has a right to expect, very high prices. The pecuniary value of his work cannot, therefore, as a rule, be tested by what some other artist may think of it as a work of art. An opinion may be pertinent concerning its character as a good painting or a poor one, but where a picture is not meant for sale, and would not be readily marketable, its salable value is no test of what the artist earned in painting it. Plaintiff had set up his business at Muskegon, and had dealt with defendant for other pictures. If no fixed price was agreed on for the one in controversy, defendant, if to pay for it what it would be reasonably worth, could not be supposed to contemplate any price not in fair proportion to what was to be paid for the other pictures, or the usual work of this particular artist. The fashionable painters referred to in the record may or may not be more accomplished than plaintiff, but in such a controversy as this he must be judged by his surroundings, and claim no more for his earnings than he is entitled to expect from what he has given reason to believe he would demand. * * * We do not think the jury had any right to consider, or any means of judging, the value of plaintiff's work by the expense, time or character of his studies, and there was no testimony indicating that he had reached exceptional distinction. knew nothing of him beyond his local experience and standing. Whatever may be his claims to eminence, he was not apparently engaged, so far as outward appearances went, in the higher walks of art. The pictures he made or was to make for defendant were substantially copies from photographs,

The jury

of Michigan, and no moneys which were or could be regarded as earned during said year within the limits of said State of Michigan other than as hereinbefore and in said report set forth.

"Sixth. That by the terms of said act it is the duty of said commissioner of railroads to make and file with the auditor-general of said State of Michigan, prior to the 1st day of June of each year, a computation based upon the report of each person, association, copartnership, or corporation taxable thereunder of the amount of tax to become due from them respectively, and each such person, association, copartnership or corporation is required, on or before the 1st day of July in such year, to pay to the treasurer of said State of Michigan, upon the statement of the auditor-general thereof, two and one-half per cent upon its gross receipts as computed by the said commissioner of railroads, and derived from loaning, renting, or hiring of cars to any railroad or other corporation, association, copartnership or party. It was also provided in said act that for the said taxes, and interest thereon, and the penalty imposed for delay in payment thereof, the said State should have a lien upon all the property of the person, association, copartnership or corporation so taxed, and in default of the payment of said tax by and within the time so prescribed, the auditor-general of said State was authorized to issue his warrant to the sheriff of any county in said State, commanding him to levy the same, together with ten per cent for his fees, by distress, and sale of any of the property of the corporation or party neglecting or refusing to pay such tax wherever the same may be found within the county or State.

"Seventh. That the said commissioner of railroads has computed and determined that the amount of the gross receipts of the said transportation company under the said act is the said sum of $28, 890.01, and that there is due from said transportation company to the State of Michigan, as a tax thereon the sum of $722.25, and has transmitted said computation to the said auditor-general, and your orator shows that unless said tax is paid by the said transportation company on or before the 1st day of July, 1884, it will become the duty of the said auditor-general under the said act, and the said auditor-general threatens that he will proceed, to enforce payment of the said tax against said transportation company by the seizure and sale of the property of said transportation company under the provisions of said act.

"Eighth. That your orator is advised, and so charges, that the said act as to the said gross receipts of the said transportation company, or of any of its receipts or earnings from the use of its cars, within the State of Michigan, and the transaction of its business in the manner aforesaid, is in violation of the Constitution of the United States and void, and that said act is inapplicable to the said transportation company, and inoperative for further reasons appearing upon its face, and that said transportation company is not amenable thereto.

"Ninth. That the chief office of the said transportation company for the transaction of corporate business was, during said year, and is, in the city of New York, in the State of New York, and that all the moneys earned by it, as set forth in the second and third paragraphs hereof, were paid to it at its said office; that said company during said year had no funds or property whatsoever within the State of Michigan, except cars in transit and office furniture in the possession of agents, and that during the said year the said transportation company was subject to taxation, and was taxed, on account of its property and earnings, within and under the laws of the State of New York."

The bill then prays for a subpoena against William C. Stevens, auditor-general of the State of Michigan, and for an injunction to prevent him from proceeding in the collection of said taxes. To this bill the defendant Stevens demurred, and the Circuit Court of the county of Washtenaw, in which this suit was brought, overruled the demurrer. From this decree the defendant appealed to the Supreme Court of the State, where the judgment of the lower court was reversed, the demurrer sustained and the bill dismissed. To reverse that decree this writ of error was sued out. The contention of the plaintiff in error is that the statute of Michigan, the material parts of which are recited in the bill, is void as a regulation of commerce among the States, which by the Constitution of the United States, is confided exclusively to Congress. Art. 1, §8, cl. 3. It will be observed that the bill shows that the tax finally assessed by the auditor of State against the transportation company was for the $28,890.01 of the gross receipts which the company had returned to the commissioner as money received for the transportation of freight from points without to points within the State of Michigan, and from points within to points without that State, and that no tax was assessed on the $95,714.50 received for transportation passing entirely through the State to and from other States.

There is nothing in the opinion of the Supreme Court of the State which is found in the transcript of the record to explain this discrimination. There is nothing in the statute of the State on which the tax rests which makes such a distinction, nor is there any thing in the commissioner's requirement for a report which suggests it. It must have been therefore upon some idea of the authorities of the State that the one was inter-State commerce and the other was not, which we are at a loss to comprehend. Freight carried from a point without the State to some point within the State of Michigan as the end of its voyage, and freight carried from some point within that State to other States, is as much commerce among the States as that which passes entirely through the State from its point of original shipment to its destination. This is clearly stated and decided in the case of Reading R. Co. v. Pennsylvania, commonly called the case of the State Freight Tax, 15 Wall. 232, in which it is held that a tax upon freight taken up within the State and carried out of it, or taken up without the State and brought within it, is a burden on inter-State commerce, and therefore a violation of the constitutional provision that Congress shall have power to regulate commerce with foreign nations and among the several States. And in Wabash Ry. Co. v. Illinois, 118 U. S. 557, it is held that a statute attempting to regulate the rates of compensation for transportation of freight from New York to Peoria, in the State of Illinois, or from Peoria to New York, is a regulation of commerce among the States. The same principle is established in Crandall v. Nevada, 6 Wall. 35.

The statute of the State of Michigan of 1883, under which this tax is imposed, is entitled "An act to provide for the taxation of persons, copartnerships, associations, car-loaning companies, corporations and fast freight lines engaged in the business of running cars over any of the railroads of this State, and not being exclusively the property of any railroad company paying taxes on their gross receipts." Sections 1 and 2 require reports to be made to the commissioner of railroads for the gross amount of their receipts for freight earned within the limits of the State from all persons and corporations running railroad cars within the State. The commissioner is by section 4 required to make and file with the auditor-general on the 1st day of June of each year a computation of the amount

of tax which would become due on the 1st day of July next succeeding from each person, association, or corporation liable to pay such taxes. Each one of these is by section 5 required to pay to the State treasurer, upon the statement of the auditor-general, an annual tax of two and one-half per cent upon its gross receipts, as computed by the commissioner of railroads.

It will thus be seen that the act imposed a tax upon all the gross receipts of the Merchants' Despatch Transportation Company, a corporation under the laws of the State of New York, and with its principal place of business in that State, on account of goods transported by it in the State of Michigan; and the bill states that the company carried no freight the transportation of which was between points exclusively within that State.

The subject of the attempts by the States to impose burdens upon what has come to be known as interState commerce or traffic, and which is called in the Constitution of the United States "commerce among the States," by statutes which endeavor to regulate the exercise of that commerce, as to the mode by which it shall be conducted, or by the imposition of taxes upon the articles of commerce, or upon the transportation of those articles, has been very much agitated of late years. It has received the attentive consideration of this court in many cases, and especially within the last five years, and has occupied Congress for a time quite as long. The recent act, approved February 4, 1887, entitled "An act to regulate commerce," passed after many years of effort in that body, is evidence that Congress has at last undertaken a duty imposed upon it by the Constitution of the United States, in the declaration that it shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." Congress has freely exercised this power so far as relates to commerce with foreign nations and with the Indian tribes, but in regard to commerce among the several States it has, until this act, refrained from the passage of any very important reguJation upon this subject, except perhaps the statutes regulating steamboats, and their occupation upon the navigable waters of the country.

With reference to the utterances of this court, until within a very short time past, as to what constitutes commerce among the several States, and also as to what enactments by the State Legislatures are in violation of the constitutional provision on that subject, it may be admitted that the court has not always employed the same language, and that all of the judges of the court who have written opinions for it may not have meant precisely the same thing. Still we think the more recent opinions of the court have pretty clearly established principles upon that subject which can be readily applied to most cases requiring the construction of the constitutional provision, and that these recent decisions leave no room to doubt that the statute of Michigan, as interpreted by its Supreme Court in the present case, is forbidden as a regulation of commerce among the States, the power to make which is withheld from the State.

The whole question has been so fully considered in these decisions, and the cases themselves so carefully reviewed, that it would be little more than repeating the language of the arguments used in them to go over the ground again. The cases of State Freight Tax and State Tax on Railway Gross Receipts, which were considered together, and decided at the December term, 1872, and reported in 15 Wall. 232-328, present the points in the case before us perhaps as clearly as any which have been before this court. A statute of the State of Pennsylvania imposed upon all the rail

road corporations doing business within that State, as well as steamboat companies and others engaged in the carrying trade, a specific tax on each 2,000 pounds of freight carried, graduated according to the articles transported. These were arranged into three classes, on the first of which a tax of two cents per ton was laid, upon the second three cents, and upon the third five cents. The Reading Railroad Company, a party to the suit, in making its report under this statute, divided its freight on which the tax was to be levied into two classes; namely, freight transported between points within the State, and freight which either passed from within the State out of it, or from without the State into it. The Supreme Court of the State of Pennsylvania decided that all the freight carried, without regard to its destination, was liable to the tax imposed by the statute. The court however held that freight carried entirely through the State from without, and the other class of freight brought into the State from without, or carried from within to points without, all came under the description of commerce among the States," within the meaning of the Constitution of the United States; and it held also that freight transported from and to points exclusively within the limits of the State was internal commerce, and not commerce among the States. The taxing law of the State was therefore valid as to the latter class of transportation, but with regard to the others it was invalid, because it was inter-State commerce, and the State could lay no tax upon it. In that case, which has been very thoroughly argued and very fully considered, the case of Crandall v. Nevada, 6 Wall. 35, was cited as showing, in regard to transportation, what was strictly internal commerce of a State and what was inter-State commerce. The court said: "It is not at all material that the tax is levied upon all freight, as well on that which is wholly internal as that embarked in inter-State trade. We are not at this moment inquiring further than whether taxing goods carried because they are carried is a regulation of carriage. The State may tax its internal commerce, but if an act to tax inter-State or foreign commerce is unconstitutional, it is not cured by including in its provisions subjects within the domain f the State. Nor is a rule prescribed for carriage of goods through, out of, or into a State any the less a regulation of transportation because the same rule may be applied to carriage which is wholly internal. Doubtless a State may regulate its internal commerce as it pleases. If a State chooses to exact conditions for allowing the passage or carriage of persons or freight through it into another State, the nature of the exaction is not changed by adding to it similar conditions for allowing transportation wholly within the State."

In the case of Erie Ry. Co. (a corporation of the State of New York) v. Pennsylvania, decided at the same time, it appeared that the road of that company was constructed for a short distance through a part of the State of Pennsylvania, and that a similar tax was levied upon it for freight carried over its road. This was held to be invalid for the reasons given in the case of the Reading Road.

In the other case of State Tax on Railway Gross Receipts, which was also a suit between the Reading Railway Company and the State of Pennsylvania, an act of the Legislature of that State was relied on, which declared that "in addition to the taxes now provided by law, every railroad, canal and transportation company incorporated under the laws of this Commonwealth, and not liable to the tax upon income under existing laws, shall pay to the Commonwealth a tax of three-fourths of one per centum upon the gross receipts of said company, and the said tax