Where the law has intervened to make performance of the contract impossible, the promisor is excused primarily on grounds of public policy, and not from any notion of indulgence. The rule is generally recognized, that a contract for an illegal object is void on its face; and the time fixed for performance is plainly the time at which the legality of the object is finally to be determined. Clearly, then, it is immaterial whether or not the promisor might have anticipated that the thing which he has promised to do, and which was lawful at the time he contracted, would subsequently become unlawful.2 The absolute, arbitrary bar to the enforcement of the contract is present, irrespective of the intention or knowledge of the parties. In cases where the element of illegality is not present, because the defense interposed is impossibility due to foreign, as distinguished from domestic, law, the courts have generally refused to excuse the promisor. In contracts where performance has become impossible in fact, however, the defense is in its nature equitable, resting upon the injustice of enforcing an absolute legal obligation under all circumstances; and if the impossibility might have been foreseen by the promisor, the equitable grounds upon which he claims relief must fail. The importance of this distinction between impossibility in fact and impossibility in law is illustrated by a case lately decided in the United States Supreme Court. During the war between China and Japan a carrier contracted to transport copper from New York to Yokohama. The government official at Tacoma, however, refused to clear the vessel carrying the copper, on the ground that as contraband it could not legally be exported to Japan. The ship accordingly sailed without it. The following day it appeared that there was no legal objection to the exportation. It was held that the mistake of the official was no defense to the carrier in view of circumstances showing that it had taken the risk of any trouble arising from the nature of the goods. Northern Pacific Railway Co. v. American Trading Co., 25 Sup. Ct. Rep. 84. Although the agent of the government had acted within the scope of his employment, that fact could not operate to give validity to his unauthorized act, and the breach of the contract was not due strictly to the operation of law. Consequently, since the principles of public policy upon which an illegal contract is declared void, did not apply, the promisor had no absolute defense. The case was, accordingly, determined upon the same principles as cases presenting a supervening impossibility of fact, with emphasis placed upon the assumption of risk by the promisor. Thus, if the official abuse of discretion could not have been anticipated, one so prevented from performing should have been protected. Where the defense interposed is impossibility due to foreign. law, there is a situation closely analogous, and it would seem that the result should be worked out along the same equitable lines. - A EXEMPTION OF MUNICIPAL PROPERTY FROM STATE TAXATION. municipality being, within its territory, an agency of the state for the exercise of governmental functions, a general rule of exemption excludes prop 2 Cf. Esposito v. Bowden, 7 E. & B. 763, 789, 790. Barker v. Hodgson, 3 M. & S. 267; Blight v. Page, 3 Bos. & Pul. 295, note a; Tweedie Trading Co. v. McDonald Co., 114 Fed. Rep. 985. 4 15 HARV. L. REV. 418. Jennings v. Lyons, 39 Wis. 553; Bryan v. Spurgin, 5 Sneed (Tenn.) 681. 6 See 16 HARV. L. REV. 64. erty held by a city for governmental purposes from state taxation, to avoid the inconsistency of the state taxing itself. Accordingly, such instrumentalities of well-recognized governmental functions as city halls and court houses are nowhere taxed. Changed economic conditions, however, have enlarged the domain of municipal enterprise, and the state has seen fit to confer added power upon its municipalities. Parks, aqueducts, wharves, waterworks and lighting plants have become legitimate objects of municipal ownership; and the question arises whether such property is held for governmental purposes within the meaning of the rule of exemption. A distinction has been taken by some courts, and exemption denied to property held by a city merely for the "profit and convenience of its citizens." In applying this limitation, the Court of Appeals of Kentucky lately refused to exempt bonds of a gas company acquired by the city of Frankfort in exchange for its gas plant, although the income from the bonds was used for lighting the streets. City of Frankfort v. Commonwealth, 82 S. E. Rep. 1008. A previous decision of the same court exempting a public park is distinguished on the ground that the city derived no revenue from its park. It would seem, however, that the profit and convenience of the citizens of a particular community are quite as much the sole objects of a public park as of street lamps. Moreover, the city has constitutional authority to provide for street lighting. It would hardly be urged that taxes directly levied for that purpose are taxable by the commonwealth, and the means of effectuating such an object should be regulated only by the test of reasonableness. The majority of jurisdictions have taken a broader view, and, therefore, in the absence of special statutes, municipal waterworks and lighting plants, though yielding revenue, are exempt from taxation. The collection of water-rents is generally considered, not a source of private profit, but a mode of taxation. To the extent that a municipality is given enlarged power to acquire and engage in industries directly for the public benefit, it is regarded as invested with so much more governmental power, in the broader meaning of the term. Whatever property it acquires through taxation is exempt;" for, obviously, the product of one tax should not be made the subject of another. The power to levy taxes is based on the right of governmental administration and public welfare. Only public purposes justify the levying of a tax, and the same test as to what constitutes public purposes should be applied in exempting property from taxation as in levying taxes for the purpose of acquiring it. 6 8 RIGHT OF INSPECTION IN SALES C. O. D. Under ordinary circumstances, when a vendor sells and ships goods of a specified description, the vendee clearly has the right of inspection before acceptance.1 If the goods 1 I Cooley, Taxation, 3d ed., 263 et seq. 2 City of Louisville v. Commonwealth, 1 Duv. (Ky.) 295. 3 Cf. City of Owensboro v. Commonwealth, 105 Ky. 344; Rochester v. Rush, So N. Y. 302. 4 Town of West Hartford v. Water Com'r, 44 Conn. 360; State v. Toledo, 54 Oh. St. 418; Smith v. Mayor of Nashville, 88 Tenn. 464; Sumner County v. Wellington, 66 Kan. 590; contra, City of Covington v. Commonwealth, 19 Ky. Law Rep. 105. Springfield, etc., Co. v. Keeseville, 148 N. Y. 46. 6 See Town of West Hartford v. Water Com'r, supra; Rochester v. Rush, supra. 7 State v. Toledo, supra. 8 See People v. Salem, 20 Mich. 452. 1 Isherwood v. Whitmore, 11 M. & W. 347. are according to order, title passes at the moment of shipment and the purchaser is bound to pay the price. If they do not fulfill the required conditions, the buyer need not accept them and there is no sale. But when goods are shipped C. O. D., do the same rules apply? According to the better opinion, the condition of collection on delivery does not prevent the passing of title, though it denies the vendee the right of possession. As to its effect upon the right of inspection, however, the few authorities are in confusion. On the one hand, it has been held that a carrier incurs no liability to the consignee for refusal to allow inspection." On the other hand, an express company which allowed inspection was held not liable in an action by the vendor. In this case the company had delivered the goods to the consignee upon deposit of the purchase price, and had agreed to return the deposit if the goods proved unsatisfactory. Upon the hypothesis that the vendee had a right of inspection, the court reasoned that the carrier should be protected in permitting a reasonable exercise thereof. The question, however, is squarely raised only in actions between the vendor and the vendee. In a Kentucky case where goods were sent C. O. D. without the consignee's authority for so transmitting them, the court diplomatically left it for the jury to determine whether there was a right of inspection. A recent Michigan case raised the question incidentally, the court taking the position that a valid tender could not be made without such a right. Thick v. Detroit, etc., R. R. Co., 101 N. W. Rep. 64. 7 As this utter lack of harmony prevails among the authorities, it may well be asked, what result should be reached on principle. There is a general rule among express companies not to allow inspection of goods sent C. O. D.; and in cases where this method of shipment is contemplated, the parties might well be taken to have agreed that this rule should form part of the contract. After payments were made and the goods obtained, if they should prove not to be in accordance with the order, the buyer would have the usual remedies for the breach of the implied warranty that the goods conformed to the description. In some jurisdictions, he could sue only for damages; in others, he would be allowed the option of rescission or damages. On principle, he clearly should have this option, since he had no opportunity to inspect. 10 But if the vendee had not authorized the shipment of goods C. O. D., he could not be taken to have contracted with reference to the rule of the carrier, his right of inspection would remain, and such a consignment ought not to constitute a valid tender. DECLARATIONS OF TESTAMENTARY INTENTION. As between an antetestamentary declaration by a testator of his intention to dispose of his property in a certain way, and his post-testamentary declaration of the fact of such disposition, it is obvious that neither is entitled to a higher degree of credibility than the other. Nevertheless, the former was at first admitted in Dutton v. Solomonson, 3 Bos. & Pul. 582. 4 Commonwealth v. Fleming, 130 Pa. St. 138. 5 Wiltse v. Barnes, 46 Ia. 210; see Lane v. Chadwick, 146 Mass. 68. Lyons & Co. v. Hill & Co., 46 N. H. 49. Louisville Lithographic Co. v. Schedler, 23 Ky. Law Rep. 465. 8 See Stevenson, Jaques & Co. v. McLean, 5 Q. B. D. 346, 349. • Pope v. Allis, 115 U. S. 363. 10 See 16 HARV. L. REV. 465 ff. evidence as a declaration showing a present condition of mind,1 while the latter was excluded. The admission of such declarations of present intention seems to have been in part influenced by a specious analogy. On an issue of testamentary capacity, declarations of a testator evincing an insane state of mind are clearly admissible. The fundamental reason for the rule was, however, lost sight of in applying it to statements of intention. Imbecilic talk is circumstantial evidence of insanity; but a declaration of intention, though a declaration of a state of mind, is as little circumstantial evidence of the existence of the intention, as is a declaration of an objective fact circumstantial evidence of the existence of the fact declared. On this reasoning some courts have, since the famous case of Sugden v. Lord St. Leonards, put ante-testamentary and post-testamentary declarations on the same footing. The best considered opinions of American courts, whether excluding or admitting the latter, discuss the problem on principles applicable alike to both classes of declarations. The artificiality of attempting to distinguish between declarations of a state of mind and declarations of a fact is well illustrated by a Wisconsin case, where a declaration by a testatrix that she had destroyed a will by burning was held inadmissible as evidence of the fact so declared, but admissible, nevertheless, to show "that she died in the belief that she had left no will," reasoning that seems to involve the assumption that the testatrix may have been lying as to the fact, and yet telling the truth as to her belief in the fact. 5 6 7 9 On an issue of revocation, however, another question may be raised, an example of which is furnished by a recent Montana case, in which, to rebut a presumption of revocation, declarations by the testator that he was satisfied with the will were sought to be introduced, and were held inadmissible. In re Colbert's Estate, 78 Pac. Rep. 971. A present intention to do an act is evidence not only that the act was done, but also of the intention with which it was done, and in a well-known class of cases hearsay declarations of intention are admissible for the latter purpose. Thus, it is well settled that, when a change of domicile is in issue, the party's intention at the time of the moving may be shown by his declarations of an intention to move, as well when made before the time of the moving as when accompanying the act.10 The analogy of these cases would, therefore, point toward admitting the declarations in the principal case as evidence that the testator never had a revoking mind. These propositions obviously take for granted the admissibility of declarations of present intention, and are concerned only with the question of relevancy or remoteness. The credibility of a declaration of an intention, however, cannot depend on the inference to be drawn from the intention; and the question of hearsay bears only on the credibility of the declaration, not on the inference to be drawn from the fact declared. If, therefore, the test of credibility is to prevail, it is clear that a testator's declarations of intention are as objectionable to hearsay as 1 Doe d. Shallcross v. Palmer, 16 Q. B. 747. 2 Quick v. Quick, 3 Sw. & Tr. 442. 3 Waterman v. Whitney, 11 N. Y. 157. 4 See 3 Wigmore, Evidence § 1768. 5 1 P. D. 154. Cockburn, C. J., admitted that he could not distinguish on principle between the two sorts of declarations. 6 See Throckmorton v. Holt, 180 U. S. 552. 7 See Lane v. Hill, 68 N. H. 275. 8 In re Valentine's Will, 93 Wis. 45. 9 Viles v. Waltham, 157 Mass. 542. 10 See Matzenbaugh v. The People, 194 Ill. 108. his declarations of facts. As a matter of policy, owever, since a person's declarations are often the only possible method of determining intention, it may well be that the test of credibility should give way to that of practical convenience. 1 RES JUDICATA AS APPLIED TO MATTERS OF LAW. - It is commonly said that any right, question, or fact, distinctly put in issue and directly determined by a court of competent jurisdiction, cannot be disputed in a subsequent action between the same parties, whether upon the same or upon a different subject-matter. So sweeping a definition of res judicata has in many cases led to a failure to distinguish between its two main applications. It applies primarily in cases where parties seek to litigate again the same cause of action which has been decided between them in a prior suit, but it is employed also to estop them from disputing in one action matters that have been authoritatively settled between them in another.2 In the first class of cases the wisdom of the rule is clear. The parties have had their day in court, the matter is settled, and the most obvious public policy forbids them to raise the controversy afresh. Consequently, the estoppel may fairly cover all matters connected with the former action. In the other class of cases, however, the rule should have a much narrower application. Not only should the estoppel be limited to matters distinctly put in issue and determined in the prior action,' but it should also be restricted to questions of fact or mixed questions of law and fact, and should never be extended to pure questions of law. It is absurd to say that in so far as certain parties are concerned a court should be bound irrevocably to adhere to a proposition of law laid down in a previous suit. Yet this seems to be the result of many decisions. Of course, as a matter of practice, the courts would usually follow a former decision upon the same state of facts, and so it would in most cases make little difference to the parties whether their rights were determined as res judicata or upon the theory of stare decisis. That this is not always true is shown by a recent Nebraska case. A statute provided that railroads should not be subject to county taxes on any part of their continuous line of road. The plaintiff, a railroad, owned a bridge which had for some time been taxed by the defendant county. In 1886 the railroad had brought an action to recover back these taxes. All facts concerning the bridge being conceded, the court had found that it was not a part of the continuous line of road within the meaning of the statute." In subsequent suits between different parties this construction had been held to be erroneous. The present action was brought upon the same conceded facts to restrain the county from assessing the bridge for the year 1901. The court allowed the plaintiff to question the construction given the statute in the former action, holding that a question of law could not be res judicata. Chicago, B., & Q. R. Co. v. Cass County, 101 N. W. Rep. 11. The facts of this case furnish the strongest argument against the rule which applies the 2 Ibid. § 500. 4 Cromwell v. County of Sac, 94 U. S. 351. 6 Bigelow, Estoppel 100; Philadelphia v. Ridge Ave. R. R. Co., 142 Pa. St. 484. • Southern, etc., Co. v. St. Pauls, etc., R. Co., 5 C. C. A. 249. 7 Cass County v. Chicago, etc., R. Co., 25 Neb. 348. |