The following tables show the sources from which the twelve successive classes have been drawn, both as to previous college training and as to geographical districts :

As the thirty-three Harvard seniors and the one Dartmouth senior in the first year class have in each instance completed the work required for the A. R. degree, all members of the class are virtually college graduates. The same is true of practically the entire School. Of the sixty-three special students, twenty-seven have entered this year, and of these twenty-two are graduates of a college or university, four having received a degree in law.

One hundred and twenty-one colleges and universities have representatives now in the School as compared with one hundred and twenty-two last year and one hundred and eighteen the previous year. In the first-year class sixty-eight colleges and universities, as compared with sixty-six last

year, are represented, as follows: Harvard, 93; Yale, 30; Brown, 11; Princeton, 9; Dartmouth, 8; Williams, 5; Amherst, Bowdoin, Columbia, Michigan, 4; California, Clark, Cornell University, State University of Iowa, Missouri, Rochester, Tufts, Washington & Jefferson, 3; Bates, Georgia, Hamilton, Leland Stanford, Jr., William Jewell, 2; Allegheny, Beloit, Carleton, Central, Chicago, Cornell College, Dakota Wesleyan, Dalhousie, De Pauw, Fargo, Fordham, Franklin, Georgetown College, Georgetown University, Gustavus Adolphus, Hamline, Holy Cross, University of Illinois, Iowa, Johns Hopkins, Kentucky State, Miami, Ohio Wesleyan, Oxford, Parsons, Pennsylvania, Pomona, St. Joseph's, St. Lawrence, St. Vincent's, Santa Clara, South, Syracuse, Trinity (Conn.), Trinity (N. C.), Union, Vermont, Virginia, Wake Forest, Washington, Wesleyan, Western Reserve, Western University of Pennsylvania, West Virginia, Wooster, 1. There are at present in the School eleven law school graduates, six of whom hold academic degrees also, representing the law schools of the following universities Boston, Harvard, Illinois, Indiana, Iowa, Tennessee, George Washington, Western Reserve, Boston Y. M. C. A., West Virginia.

VERSIES.

WHAT RULE OF DECISION SHOULD CONTROL IN INTERSTATE CONTRO- In the Articles of Confederation provision was made for the appointment of commissioners to hear and determine controversies between the states, who were to decide the questions involved, not necessarily according to common law rules, but according to broad principles of right judgment.1 And at the time of the adoption of the Constitution the narrowing effects of the establishment of the common law as a general rule of decision were contemplated. Neither the Constitution itself, therefore, nor subsequent statutes establish the common law of England or of any state as the standard of decision for the Supreme Court in interstate controversies. But the absence of stipulated rules of decision and of forms of procedure does not appear to have embarrassed the court. In the case of boundary disputes between the states, the common law of the contending states may well serve as an adequate standard of rights. But in complicated questions affecting the so-called quasi-sovereign rights of the states, in cases, for example, involving the pollution or diversion of interstate rivers, the adequacy of common law rules seems questionable. The United States Supreme Court has accordingly developed the doctrine, supported by two recent cases, that the common law of private rights is not the measure of the rights of the states in interstate controversies. Kansas v. Colorado, 206 U. S. 46; Georgia v. Tennessee Copper Co., 206 U. S. 230. Georgia was granted relief in equity against a Tennessee corporation which discharged noxious gases across the state line, on the principle that, though damages might be an adequate remedy for a private person, a state is not to be required to part with its quasi-sovereign rights for damages. This idea of state quasi-sovereignty also led the court to adopt in the Kansas case a position midway between the claim of Kansas, that the common law

496.

1 Art. IX.

2 2 Elliott, Debates, 346.

See Rhode Island v. Mass., 12 Pet. (U. S.) 657; Missouri v. Illinois, 200 U. S.

4 Rhode Island v. Mass., supra. See 19 HARV. L. REV. 606.

5 See also Missouri v. Illinois, supra.

6 See also 21 HARV. L. Rev. 47.

rule of riparian ownership should control, and the contention of Colorado, that international law should be the rule of decision." The court holds, on principles as broad as those suggested in the Articles of Confederation, that equality of right and a balance of benefits should be the rule of law in interstate controversies, and suggests that the body of law which the court is building up in this manner is "interstate common law."

8

It is necessary, however, to employ this phrase cautiously, for "interstate common law" had, of course, no prototype antedating the formation of the Union. But the conception of such a body of law is not fanciful, if simply taken to mean the principles established by the Supreme Court in its decisions of interstate disputes. In this sense it does not involve the much discussed question whether there is a common law of the United States as well as in the United States. For even though it is readily admitted that a separate federal common law of private rights does not exist, the Supreme Court is not forced to apply the common law of the states in the settlement of controversies between the states. That, indeed, would frequently be impossible, as when the rules of law of the conflicting states are opposed to each other. Moreover, it would deny the quasi-sovereign character of the states. This quasi-sovereignty, however, the fact that a state as parens patriae has a higher status than a private person-is so well recognized by the Supreme Court that the mere fact that a state has no pecuniary interest in a controversy does not defeat the original jurisdiction of the court." 10 The notion of a body of law applying peculiarly to interstate relations and this idea of quasi-sovereignty are interdependent. The latter justifies the former; the former is made necessary by the latter. The sanction for such law is to be found in the general language of Article III of the Constitution, which wisely provided for a flexible and progressive system of law by omitting to define the standards which should control the Supreme Court.

CLAIM OF UNCONSTITUTIONALITY BARRED BY ESTOPPEL.-The contention, not infrequently made, that a party can never be estopped from setting up unconstitutionality, is universally denied, but the treatment of the question in the cases is far from satisfactory. Our courts do not sit to revise the work of their co-ordinate department of government, the legislature. Their duty is to decide the controversy of the parties then before them. If the application of a certain statute to the case would result in a clear violation of the constitution, they will refuse to apply it. This, it would seem, is the rationale and extent of judicial power to declare legislation unconstitutional. Moreover, as it is the duty of the legislature to act according to the constitution, the courts will naturally presume it has done so, and will apply the statute unless reason is shown why they should not. The ques

7 See 8 HARV. L. REV. 138.

8 Cf. Penn v. Lord Baltimore, I Ves. 443.

9 See Von Holst, Const. Law, 161n; 36 Am. L. Rev. 498.

10 Missouri v. Illinois, 180 U. S. 208. See also Kansas v. Colorado, 185 U. S. 125,

142.

1 Marbury v. Madison, I Cranch (U. S.) 137, 177, 178; Von Holst, Const. Law, 62; Cooley, Const. Lim., 7 ed., 228.

2 See 7 HARV. L. REV. 129.

tion of estoppel is brought into some situations where, from the foregoing, it would seem unnecessary. It is controverted whether the state is estopped from setting up the unconstitutionality of a statute. The question is frequently only one of materiality. If the state is not affected thereby, the constitutionality of the statute is not at issue, since the court need not refuse to apply the statute to the case before it lest it violate the constitution, and therefore the state cannot go into the question. It is said, when a public officer is sued for money collected under a statute in his official capacity, he is estopped from denying its constitutionality to defeat the recovery. Again the question of constitutionality is immaterial. Granted the statute is unconstitutional, still as between him and the state, on principles of agency or trusts, the latter is entitled to money he avowedly collected for it. The question of constitutionality may thus be eliminated from other situations, but not from all. When a person has accepted benefits under a statute, or when he has merely begun suit under it, he is commonly said to be estopped from denying its constitutionality when it is attempted to impose upon him the liabilities created by it.' Clearly this is not strict estoppel, for both parties are equally cognizant of the facts, and there is no misrepresentation of fact acted upon. Still the courts feel that the adoption of such inconsistent positions in these situations would be contrary to fairness and justice. Much the same feeling causes them to prevent a man dealing with a corporation as such from questioning the legality of its existence. For want of a better expression, apparently, they say the party is estopped. The truth is that the courts apply the statute to the case at bar because the party should not be permitted to show them why they should not.

In a recent Kentucky case this doctrine was extended to estop everybody from denying the constitutionality of an apportionment statute in effect thirteen years. Adams v. Bosworth, 102 S. W. 861. This would seem to be going too far. It is difficult to see how the party has adopted inconsistent attitudes producing an unfair situation. And the weight of authority has properly not extended the doctrine to estop one who has been merely passive, nor even one who has voted under a statute. Theoretically the mere efflux of time should be immaterial, as the court violates the constitution as much in applying this statute now as it would have thirteen years ago, and statutes have been declared unconstitutional after longer lapses of time. Then there is also the consideration that the whole community should not be kept from inquiring into a matter reaching, as this does, the very foundations of government.10 It amounts to constitutional amendment in a most informal way. The expressed fear of the court that the opposite holding would create enormous confusion through invalidating so much legislation, is unfounded, for, as another recent decision " pointed out, the legislatures elected inder an unconstitutional apportionment are de facto ones, and as such their acts are entirely valid.

8 People v. Brooklyn, etc., R. R., 89 N. Y. 75; Atty.-Gen. v. Perkins, 73 Mich. 303. 4 People v. Bunker, 70 Cal. 212; Chandler v. State, I Lea (Tenn.) 296.

5 Cf. State v. Gardner, 54 Oh. St. 24; State v. Heard, 47 La. Ann. 1679.

6 There are a few dicta to the effect that if he also requested the passage of the statute, he can be held in quasi-contract. See Shepard v. Barron, 194 Ù. S. 553.

7 Daniels v. Tearney, 102 U. S. 415; Great Falls Co. v. Atty.-Gen., 124 U. S. 581.

8 Counterman v. Dublin, 38 Oh. St. 515; Greencastle v. Black, 5 Ind. 557. Philadelphia v. Ridge Ave. Ry., 142 Pa. St. 484.

19 Denny v. State, 144 Ind. 503.

11 Sherrill v. O'Brien, 188 N. Y. 185, 212 et seq.

GRANTING CONCESSIONS FROM PUBLISHED INTERSTATE RAILROAD RATES. Section 10 of the Interstate Commerce Act as amended in 1889 made it a misdemeanor to obtain transportation at less than the regular rate by means of false billing, and provided that violations of this section should be prosecuted in any federal court having jurisdiction of crimes in the district in which the offense was committed.' The federal statutes provide that when any offense against the United States is begun in one circuit and completed in another the courts of either circuit shall have jurisdiction over the whole offense. Under these enactments it has been held that the offense of obtaining transportation at less than the regular rate by means of false billing is complete in the district in which the goods were delivered to the carrier, that actual carriage is not an essential element of the offense, and that courts in the district to which the goods were transported have no jurisdiction. The Elkins Act of 1903, amending the Interstate Commerce Act, provided that the offense of giving or accepting concessions from the published rate should be prosecuted in any court of the United States having jurisdiction of crimes in the district in which the offense was committed or "through which the transportation is conducted." The Act also embodies the section of the federal statutes in regard to offenses begun in one jurisdiction and completed in another. These amendments made by the Elkins Act are substantially unaltered by the legislation of 1906. It remains for the courts, therefore, to determine the exact effects of the changes made by the Elkins Act.

3

Though jurisdiction is given to courts in the districts through which transportation is conducted, it is not probable that actual carriage has been made an essential element of the offense of obtaining the forbidden concessions. It is true that giving a "free pass" is not a violation of the section of the Interstate Commerce Act forbidding the granting of preferences unless actual transportation is secured." But the concessions under consideration are like the concessions obtained by false billing, and if the goods are delivered to the carrier, and the concession secured, even if the goods are lost before actual carriage, there is little doubt an indictment would be sustained. Consequently there is ground for holding that the provision under consideration is unconstitutional in that it provides for the prosecution of an offense in districts other than that in which it was committed. However, in a recent federal case where the goods were delivered and the concession received in one district, and the prosecution instituted in a different district, but one through which the transportation had been conducted, it was held that the court had jurisdiction. Armour Packing Co. v. United States, 153 Fed. 1 (C. C. A., Eighth Circ.). In the decision, while it is tacitly admitted that the offense is complete when the concession is obtained and the goods delivered to the carrier, the clause giving jurisdiction to courts in the districts through which the transportation is conducted is held constitutional by resorting to the analogy of the fiction of continuing trespass made use of

1 25 Stat. at L. 858.

2 14 Stat. at L. 484.

3 Davis v. United States, 104 Fed. 136.

4 32 Stat. at L. 847. By this act it is made unlawful "to offer, grant, or give, or to solicit, accept, or receive any rebate, concession, or discrimination in respect to the transportation of any property in interstate or foreign commerce."

5 In re Huntington, 68 Fed. 881.

6 See Amend. VI.