only be done by the municipality acting for all. But while this is true, nevertheless there is bound to be some limitation to the taking of private property for a public use whether by eminent domain or the more insidious mode of taxation, and that limit to our mind is whether the use is one by which the great majority of the people will be directly benefited and one which under present social conditions cannot be adequately supplied by private enterprise.

The above test is our own and we like it better than the one given by many text writers, to-wit, the custom of the community. In Gray, Limitations of the Taxing Power, Sec. 176, the author states that the limit should be the "custoins of the government and the community." The Washington Supreme Court very properly objects to this standard because it "is wholly out of harmony with the thought permeating all of the later decisions, that new conditions and new public necessities are weighty considerations in determining the question of public purpose; for, if custom is to be the controlling factor in deciding the question, then the consideration of new conditions and new necessities are of little moment in deciding the question."

Our objection to the decision of the Washington Supreme Court in the Clausen case, however, is that it has no test whatever of a public use and seems to be wandering in the dark with not even a ray of light to guide its future course. So far as that Court is concerned the legislature can go as far as it likes and tax the people for any purpose which it arbitrarily labels a public use. Such a weak position on the part of a Court whose supreme duty it is to uphold and protect the Constitutional rights of the people even as against the will of the majority offers no obstacle to the increasing boldness of those who profess no regard for our Constitutions and whose sole purpose in legislation seems to be to take from those who have and give to those

who have not. In the Clausen case the Supreme Court of Washington thus justifies the Reclamation Act:

"Is there not abundant room for arguing that the development of our unoccupied lands suitable for agriculture, by a land policy which would encourage the settlement thereon of home-owning farmers, will materially contribute to the welfare of our people as a whole Can it not be argi ed with a fair show of reason that, not only will such a policy ultimately lead to the enhancement of the material wealth of the state, but that it will also make for better citizenship, better notions of necessity for law and order, and a sounder and saner patriotism? In the light of the debatable character of these questions, we are quite convinced that it is not within the province of the judicial branch of our state government to answer them in the negative."

The Reclamation Act of Washington does not, by reason of its objectives come within the category of laws regulating public utilities-those institutions or lines of business in which the public have a direct interest, such as schools, highways, mills, grain elevators, railroads, hotels, telegraphs, telephones, electric light and power, water rights and power, and many other lines of business which are declared to be affected with a public interest. In this case the parties to be directly benefited are those who buy improved farms from the

.state.

Under this scheme A is to be taxed so that B can have the opportunity to buy a good farm on easy terms. Applying our double test let us inquire first, are the people directly benefited by this use of the fund or only a few individuals; second, could the purpose of this Act be achieved by private enterprise? It does not seem to us that this Act benefits the whole people except in a very remote way. Second, it seems to be wholly unnecessary for the public to go into the real estate and mortgage business in order to start off a few young farmers in the style proposed by this Act. Private enterprise is amply able to furnish any man with a good farm and with

money enough to improve it, and when a man by his own initiative has thus achieved success he will not have to hold his head down and admit that he has been a ward of the government. Moreover, if the state can stake a young farmer to a farm, why not stake a young manufacturer to a new factory? Why not create a fund to drill oil lands for oil speculators? North Dakota lev s a tax to buy seed for the farmers. Why not levy a tax to buy law books for young lawyers. They need them about as badly as a farmer needs seed and if they had them, their clients and indirectly the public might suffer less from their bungling methods.

It would be well for our courts to pay greater heed to the sound decision and clear argument of the Massachusetts Court in Lowell v. Boston, 111 Mass. 454, 15 Am. Rep. 39, which declared unconstitutional an act to raise by taxation a fund of $20,000,000 to loan to those whose homes had been destroyed by fire. The Court said:

"The promotion of the interests of individuals, either in respect of property or business, although it may result incidentally in the advancement of the public welfare, is, in its essential character, a private and not a public object. However certain and great the resulting good to the general public, it does not, by reason of its comparative importance, cease to be incidental. The incidental advantage to the public, or to the state, which results from the promotion of private interests, and the prosperity of private enterprises or business, does not justify their aid by the use of public money raised by taxation, or for which taxation may become necessary. It is the essential character of the direct object of the expenditure which must determine its validity, as justifying a tax, and not the magnitude of the interests to be affected, nor the degree to which the general advantage of the community, and thus the public welfare, may be ultimately benefited by their promotion."

Somewhere there must be a limit to the power to tax; some sort of definition must be made of a "public use" for which taxes

may be raised; otherwise the mad rush to cure all the ills of man by law and by funds raised by the taxation will not cease until the whole fabric of our civilization breaks down under a load it should never have been called upon to bear. Moreover every such act as this that makes the people dependent on the state for support serves to undermine the strength and initiative of the American character and encourages men to rely more upon the state than upon their

own resources.

NOTES OF IMPORTANT DECISIONS.

APPROPRIATING MONEY GIVEN FOR A SPECIAL PURPOSE IS LARCENY.-The distinction between larceny and false pretense, which is sometimes very difficult to make, is discussed by the Court of Appeals of California in the recent case of People v. Shwartz, 185 Pac. 686.

In this case the defendant accepted $100 from each of several prosecuting witnesses who were engaged in the business of conducting bath and massage parlors in the city of Los Angeles, for the conduct of which they were required to have a license. Defendant stated that he could fix the police commissioners and se cure their license for the amount that was paid. The money was never paid to the police commissioners nor to any one else, but was appropriated by the defendant for his own use. Defendant contended that if he was guilty of any crime it was obtaining money under false pretense. The Court, however, held that he was guilty of grand larceny, and in explanation of the distinction existing between these two classes of offenses, said:

"It is claimed by appellant that if the evidence shows him to be guilty of any crime it Is that of obtaining money by false pretenses, and not grand larceny-the crime of which he was convicted. In support of this claim it is contended that the evidence shows indubitably that each of the complaining witnesses intended to part with the title to her money as well as its possession. The distinction between larceny and false pretense is substantially this: In larceny the owner of a thing has no intention to part with his property therein to the person taking it, although he may intend to part with possession. In false pretense the owner does intend to part with his property in the money or chattel, but it is obtained from

him by fraud (People, etc., v. Delbos, 146 Cal. 734, 81 Pac. 131). There would be merit in ap

Amendment of June 18, 1910, telegraph,

witnesses delivered the several sums to him, they had intended that the moneys should then and there become his property. So far from such being the case, it appears from the evidence that each complaining witness, at the time when she delivered her money to appellant, intended that it should be received by him for the purpose of carrying it and paying it to some person, unknown to the witness, whom, however, she supposed to be an actually existing person, but who, as a matter of fact, was a spurious and mythical individual, invented by appellant for the fraudulent purpose of tricking the witness into parting with the possession of her money.

APPLICABILITY OF THE INTERSTATE COMMERCE ACT TO TELEGRAPH COMPANIES.*

The exercise by the Federal congress in recent years of its powers to define the rights and regulate the conduct of our people has attracted considerable attention. This legislation is so extensive and has such distinctive features that we might say that we have entered upon a new era in the development of our Federal law. One of the most important branches of Federal legislation in recent years, I think, is the exercise of the power of Congress in the regulation of interstate commerce. The original Interstate Commerce Act and its several amendments, the Employers Liability Act, the Food and Drugs Act, the Meat Inspection Act, the Hours of Service Act, the Clayton Act and the Trade Commission Act, the White Slave Act and the Shirley Amendment to the Food and Drugs Act, in the nature of police regulations, show the activity of Congress with reference to this kind of legislation. The Supreme Court of the United States held in the Primrose Case1 that telegraph companies were not common carriers, but by the

A paper read by Mr. W. M. Williams at the 1916 annual meeting of the Alabama State Bar Association.

(1) 154 U. S. 1.

wireless) were brought under the Commerce Act, and therein defined to be "common carriers." The fact that some of the sections of the Commerce Act were amended and others were left as they were before, created some uncertainty as to the extent to which the provisions of the Act applied to such companies. The companies contend that by the amendment Congress has manifested an intention to take possession of this field of legislation, and has thereby removed such companies, in the matter of interstate commerce, from the control of state decisions and state statutes, and that the damages recoverable against them must be measured by common law principles as declared by the Supreme Court of the United States and enforced in the Federal Courts, and that state statutes and decisions applying a different rule are inapplicable.

Beginning with the case of So Relle vs. W. U. T. Co.,2 decided in 1881, there has grown up what is called the "mental pain and anguish doctrine," which is contrary to the principles declared by the Federal Courts. Subsequently the Courts of Alabama, and several other states, adopted a like rule, while it was rejected by the Federal Courts and those of many of the states.3

In the first case declaring the mental pain and anguish doctrine, the Court recognized one of the dangers of the doctrine and said: "It should be remarked that great caution ought to be observed in the trial of causes like this, as it will be so easy and natural to confound the corroding grief occa

(2) 55 Tex. 308. (3) Many of the cases are reviewed in W. U. T. Co. vs. Choteau (1911), 28 Okla. 604, Am. Cas. 1912 D, 824, 49 L. R. A. (N. S.) 206 and note; So. Exp. Co. vs. Byers (Adv. Op. U. S. p. 410); the general subject is discussed and the authorities Sherman & Redfield on Negligence, 6th ed. Sec. Sedgwick on Damages, 9th ed. Sec. 43, et seq. and cited in Sutherland on Damages, 3d Ed. Sec. 975; 756, et seq.

sioned by the loss of the parent or other relative with the disappointment and regret occasioned by the fault or neglect of the company; for it is only the latter for which a recovery may be had."

In some of the states, especially where the Courts had rejected the doctrine, the legislatures enacted statutes which practically made telegraph companies insurers and held them liable for special and uncontemplated damages. Some of the states imposed penalties for mere errors or delays in transmission or delivery, which penalties. varied in amount according to the personnel and whims of the various legislatures. In Missouri the penalty was three hundred dollars for "every neglect" to be recovered by the person sending the message, two-thirds of the amount recovered to be retained by the plaintiff and one-third to be paid into the county school fund, though the school, of course, was not damaged, and in some instances the employes of the company as well as the company were made subject to the penalty. In Mississippi the penalty was twenty-five dollars in addition to damages; in Virginia, one hundred dollars; in Georgia, twenty-five dollars, in addition to damages; and so on. In Virginia the penalty was recovered from the Postal Telegraph Company where the delayed delivery of the telegram resulted in profit to the plaintiff.

In addition to the dangerous mental pain and anguish doctrine in force in some of the jurisdictions, in some of the states the stipulations on the back of the printed telegraph and cable blanks classifying the messages and limiting liability, were nullified by the decisions and statutes.

If the Commerce Act does not apply to telegraph companies, in the manner contended for by them, then the rule for measuring the liability for an interstate message

The applicability of the Act to telegraph companies is of the most imporant interest to the government, because under the Act of Congress adopted July 24, 1866, and entitled "An Act to aid in the Construction of Telegraph Lines and to secure to the Government of the United States the use of the same for Postal, Military and other Purposes," telegraph companies accepting the provisions of the Act are governmental agencies and a part of its postal system.12 The purpose of the Act was to secure to the government preferential and economical use of the lines of telegraph companies, and the right to purchase and own the companies, pursuant to the terms of the Act.1

13

The original Commerce Act known as the "Regan Act," adopted February 4, 1877, was limited in its operation, and included within its provisions only "common carriers engaged in the transportation of passengers and property wholly by railroad or partly by railroad and partly by water, when both are used." It has been variously amend

(9) Primrose v. Western Union Tel. Co., 154 U. S. 1; Hart v. Pennsylvania R. Co., 112 U. S. 331.

(10) Western Union Tel. Co. vs. Commercial M. Co., 218 U. S. 406; Western Union Tel. Co. v. James, 162 U. S. 650; Pennsylvania R. R. Co. v. Hughes, 191 U. S. 477; Chicago M. & St. P. R. Co. v. Sloan, 169 U. S. 133; Adams Exp. Co. v. Croninger, 226 U. S. 491.

(11) Act of July 24, 1866, ch. 230; 14 Stat. L. 221.

(12) W. U. T. Co. vs. Texas, 105 U. S. 460; Williams v. Talladega, supra.

(13) W. U. T. Co. v. Texas, supra.

ed and supplemented. However, no substantial change was made in the Interstate Commerce Act until 1906, when congress passed the Hepburn Act and the Carmack Amendment which very materially enlarged the field covered by the Act, and included within the provisions thereof, in addition to common carriers by railroad and water, sleeping car companies, express companies, iron and pipe lines and bridges and ferries-all of which were declared to be common carriers and subject to all the provisions of the Act. Enlarged powers were conferred on the Interstate Commerce Commission and express regulation of all contracts of the companies subject to the Act were provided for by the Carmack Amendment. I refer to the several Acts of Congress for the purpose of showing the gradual development and extension of the field covered by the Federal law. It was not until June 18, 1910, that congress mentioned telegraph, telephone and cable companies in this legislation. By the amendment of June 18, 1910,15 Section 1 of the original act was amended to read as follows:

"Section 1. That the provisions of this Act shall apply to any corporation or any person or persons engaged in the transportation of oil or other commodity, except water and except natural or artificial gas, by means of pipe lines, or partly by pipe lines and partly by railroad, or partly by pipe lines and partly by water, and to tele

(14) Act of Feb. 4, 1887, Ch. 104, 24 Statutes at Large, 379; Act of March 2, 1889, Ch. 382, 25 Statutes at Large, 855; Act of Feb. 10, 1891, Ch. 128, 26 Statutes at Large, 743; Act of Feb. 11, 1893, Ch. 83, 27 Statutes at Large, 443; Act of Feb. 19, 1903, Ch. 108, 32 Statutes at Large, 847 (The Elkins Act; Interstate Commerce Act of 1903); Act of Feb. 25, 1903, Ch. 755, 32 Statutes at Large, 904; Act of June 29, 1906, 34 Statutes at Large, 584 (The Hepburn Act); Act of April 13, 1908, Ch. 143, 35 Statutes at Large, 60; Act of Feb. 25, 1909, Ch. 193, 35 Statutes at Large, 648; Act of June 18, 1910, Ch. 309, 36 Statutes at Large, 539; Act of Aug. 24, 1912, Sec. 11, 37 Statutes at Large, 566 (The Panama Canal Act); Act of Oct. 22, 1913, Ch. 32, 38 Statutes at Large, 219, 221. See excellent articles by Mr. Karl W. Kirchwey in 14 Col. L. Rev. 211, and Mr. Wm. Overton Harris in Vol. II, No. 2 Virginia L. Rev. 98. (15) Ch. 309, 36 Statutes at Large p. 539.

graph, telephone and cable companies (whether wire or wireless), engaged in sending messages from one state, territory, or district of the United States, to any other state, territory, or district of the United States, or to any foreign country, who shall be considered and held to be common carriers within the meaning and purpose of this Act, and to any common carrier or carriers engaged in the transportation of passengers or freight wholly by railroad (or partly by railroad and partly by water when both are used under a common control, management, or arrangement for a continuous carriage or shipment), from one state or territory of the United States or the District of Columbia, to any other state or territory in the United States or the District of Columbia, or from one place in a territory to another place in the same territory, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States, and also to the transportation in like manner of property shipped from any place in the United States to a foreign country and carried from such place to a port of transshipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or an adjacent foreign country: Provided, however, That the provisions of this Act shall not apply to the transportation of passengers or property, or to the receiving, delivering, storage, or handling of property wholly within one state and not shipped to or from a foreign country from or to any other state or territory as aforesaid, nor shall they apply to the transmission of message by telephone, telegraph or cable wholly within one state and not transmitted to or from a foreign country from or to any state or territory as aforesaid.15a

"All charges made for any service rendered or to be rendered in the transportation of passengers or property and for the transmission of messages by telegraph, telephone or cable, as aforesaid, or in connection therewith, shall be just and reasonable; and every unjust and unreasonable charge. for such service or any part thereof is prohibited and declared to be unlawful: Provided, That messages by telegraph, tele

(15a) 36 Stat. L. 544.