Corporation of Glasgow,10 which in unique circumstances raises a question of wide importance for all local authorities. The plaintiff in this action sought to recover damages from the corporation of the City of Glasgow for the death of his son John MacKay Taylor, who died on August 21, 1919. It appears that on August 20 of that year the pursuer's son, aged 7, proceeded with some other children to the Botanic Gardens, Glasgow. The defenders are the proprietors and custodians of these gardens, which are open to the public as a public park. On the date in question the children are said to have been playing on ground surrounding the bandstand. In the vicinity of this place there is an enclosed plot of ground in which specimen plants and shrubs of various kinds are grown. A wooden fence surrounds this plot of ground, access being obtained by a gate in the fence. According to the pursuer's case the defenders knew that this plot of ground was frequented by members of the public. of all ages. Among the plants growing in the plot of ground was a shrub, atropa belladonna, bearing berries rather similar in appearance, to small grapes and presenting a very alluring and tempting appearance to children. The pursuer says that his son and some of his companions were attracted by the beautiful and tempting appearance of the shrub, that they picked some of the berries and ate them, and shortly afterwards they became seriously ill, and that although he received medical attention the pursuer's son died the following morning. The berries of the atropa belladonna shrub are poisonous, and the pursuer maintained that the death of his son was solely due to the fault of the defenders and of their servants in charge of the gardens for whom they were responsible. He alleged that the poisonous character and the inviting and deceptive appearance of the berries were well known to them. "They knew or (10) 2 S. L. T. 75. ought to have known, if they had exercised reasonable supervision, that said shrub was growing in a conspicuous position in said gardens, in a part open to and much frequented by children, and that it was probable and indeed practically certain that children would be tempted and deceived by the appearance of said shrub, and would eat the berries, which have a sweet taste. The defenders knew or ought to have known that said berries were a deadly poison and that if one or two of them were eaten by a child it was certain to cause illness and likely to result in death. The defenders were in fault in having the said shrub growing in part of said gardens open to children and frequented by them without taking any precautions, as they ought to have done but failed to do, to warn children against the danger or to prevent children from reaching said shrub and picking the berries." His Lordship pointed out that it is well known to all who frequent botanical gardens that the plants and shrubs are not intended to be tampered with, and in particular that berries or fruit growing on trees are not to be eaten. There was nothing in the pursuer's averments to suggest that the defenders in the management of their garden failed to take precautions which are usually taken in connection with similar gardens. The berries of many plants, some of them common plants that grow wild in different parts of the country, are dangerous if indiscriminately eaten by children. It was not clear from the record what precautions the pursuer suggests should be taken by the defenders to protect children from the consequences of their own ignorance or thoughtlessness. In effect his Lordship held that the element of allurement being absent Cooke's case did not apply and therefore the case of Stevenson v. The Corporation of Glasgow was appli cable and for these reasons he dismissed the action. Glasgow, Scotland. DONALD MACKAY. WILL THE EIGHTEENTH AMEND- A vice inherent in the 18th Amendment, arising from its legislative phraseology, is that it burdens the Federal courts as guardians of the Constitution: for, unless the Constitution is to become as easily susceptible to amendment as a Congressional enactment, it will, whenever current public opinion fails to lead to "appropriate" legislation even as regards the Amendment's more radical reaches, throw the burden on the courts themselves enforcing it. Their alternative, of allowing the Constitution to come into disrepute through neglect, is unthinkable. Regardless of Congressional action the Eighteenth Amendment will continue to read that the manufacture, sale, or transportation of intoxicating liquor for beverage purposes "is hereby prohibited." And, according to Article 6, paragraph 2, of the Constitution, it will be the "supreme law of the land." Heretofore even the Thirteenth and Fifteenth Amendments had contented themselves with declaratory phraseology. They were declaratory of a right that could be protected in the absence of appropriate Congressional legislation, by merely holding void any contravening acts. But rather, this is a case where violations are sure to occur while at the same time they cannot be called void. The Eighteenth Amendment is a police law, and must find its enforcement through punishment. So the courts must punish, with or without particular Congressional sanction. The cases brought to their attention will be numerous. Current public opinion may be inert, if not hostile. Why all this when (1) Congress could always, as far as current public opinion. justified, have regulated liquor by taxation as it has heretofore done with opium and even State Bank notes. And (2) the amendment itself could have contented itself with following the path blazed by the Constitution's framers, of granting to Congress power over liquor, and leaving the exercise of the power to depend on current public opinion. That the courts can (and so must) enforce the Eighteenth Amendment regardless of particular Congressional sanction follows from (1) the courts, given jurisdiction, have inherent powers of a court. (2) Jurisdiction is given by (a) the amendment's creation of the offense, and (b) the grant of jurisdiction in Section 24 of the United States Judicial Code, over "offenses." The courts, then, must define "intoxicating" liquor and should apply that definition to whatever liquor is sold, manufactured or transported. This follows, because the amendment prohibits sale or manufacture or transportation of the | identical identical object-namely intoxicating liquors. Manufacture, sale and transportation are on the same level. Now, in the absence of enforcement legislation, can the United States courts enforce the article? In ascertaining whether the court can take cognizance of violations of the Eighteenth Amendment, without Congressional sanction, what are the reasons that have heretofore led the courts to assert that in the United States courts there are no common-law crimes, but only statutory ones?" The courts, then, starting with a bias against infringing State sovereignty, have held first that the United States Government is a government of powers, and secondly, that the lower United States courts, deriving their existence exclusively from Congress, have only such jurisdiction as Congress authorizes. As to the first--the matter of powers-Congress must avail itself of a power before there is a law. As to the second-the matter of jurisdiction-there must not only be a law creating the crime, but also one giving a specified court the right to deal with the crime. These two requisites coupled (if the Eighteenth ties, is not a valid objection to this Amendment is part of the Constitution) with the absence of cause for any prejudice against infringing State's rights, we find regarding the Eighteenth Amendment. In the first place, the prohibiting part of the amendment, section 1, is itself a self-executing law, and not an unexecuted power. In the second place, jurisdiction of the offenses is given the United States District Courts by Sec. 24 of the Judicial Code. And in the third place (beside the power to prohibit being itself executed by the constitutional prohibition), in Sec. 2 of the amendment, power to enforce the prohibition is granted concurrently to the National and State Gov ernments. The stress laid in United States v. Hudson on the United States being a government of limited powers enumerated, so that it took an act of Congress to exercise the power, is not applicable as regards the Eighteenth Amendment; for that amendment is essentially legislative in character. Its language is "is hereby prohibited." True there is in addition power vested in the Congress and in the several States to enforce this prohibition by additional legislation. But in the absence of such additional legislation, the article still prohibits the manufacture, etc., of intoxicating liquors for beverage purposes, and if a part of the Constitution is, of course, the law.3 It is not merely declaratory, but is the execution of a power. The amendment could not, or would not, of course, fix penalties, but by providing for "appropriate" legislation, left them to the control of Congress if it should choose to legislate. Meantime the courts are free to use their discretion. The fact that in United States v. Reese1 the Court summarily dismissed the first section of the theory because (1) no objection to such course seems to have been in the mind of the Court, and (2) the Court refers to the section as merely declaratory of a right, and (3) the rule of construction. that the expression of one is the exclusion of the other, which may well gov ern when Congress is covering a subject, ought not to prevail in the case of the Eighteenth Amendment, where the prohibition is broadly announced and where it would be extremely unwise to fix permanent and unchangeable penalties. It is true that the United States District Court has only such jurisdiction as Congress bestowed upon it. It is said in United States v. Hall:6 (District and Circuit courts) "possess no jurisdiction over crimes and offenses committed against the authority of the U. S. except what is given them by the power that created them nor can they be invested with any such jurisdiction beyond what the power ceded to the U. S. by the Constitution authorizes Congress to confer, from which it follows that before an offense can become cognizable in the Circuit court, the Congress must define or recognize it as such and affix a punishment to it, and confer jurisdiction upon some court to try the offender. U. S. v. Hudson, 7 Cr. 32; U. S. v. Coolidge, 1 Wheat. 415; 1 Am. Cr. L. 163." Mr. Justice Clifford, in United States v. Hall, also drops the significant remark that it has never been decided whether the court could take jurisdiction of treason (defined in the Constitution) without Congressional enactment. He says that "treason is defined by the Constitution, but it has never been decided that the offender could be tried and punished for the offense until some court is vested with the power by act of Congress." Mr. Justice Miller, in United States v. Holliday,' says that at the time the Ju Enforcement Act because it lacked penal- diciary Act was passed “there was no such thing as an offense against the (5) See M'Cullogh v. Md., 4 Wh. 316, 415. United States, unless it was treason as defined in the Constitution." How much more reason is there to allow the courts jurisdiction where the Eighteenth Amendment prohibits, instead of merely defining. In each instance Congress is given power-which they may choose or not to exercise-to fix penalties. Now Sec. 24 of the Judicial Code of March 3, 1911, c. 231, 36 Stat. 1091, gives the District Court jurisdiction of all "crimes and offenses cognizable under the authority of the United States;" and Sec. 262 of the same code gives the court authority to issue all writs necessary to the exercise of its jurisdiction and agreeable to the usages of law. If then the Eighteenth Amendment establishes the offense, is it necessary that any written. law should prescribe the punishment? Power to sentence should be implied from jurisdiction over an offense. The United States judicial power extends "to all cases arising under this Constitution."s In Virginia v. West Virginia' the Court said at page 591 that judicial power involves the right to enforce the results of its exertion. Jurisdiction has been given the District Courts, and jurisdiction is the power to hear and determine. Judgment is not the end of determination. In Wayman v. Southard10 the Court said that jurisdiction is not exhausted by rendition of judgment. Jurisdiction of the offense once taken, under Sec. 24, supra, the Court should, in order to preserve the Constitution from becoming a blue law, follow the practice of common-law courts and impose such penalties as in its discretion are sufficient to insure obedience to law. It would seem that Sec. 262, supra, would give the right to issue the necessary writs. to enforce its penalty. The court has long punished contempts in the exercise of such discretion. Indeed, contempts are within the inherent jurisdiction of the court in the absence of Congressional legislation.11 It only remains then to point out that violations of the Eighteenth Amendment are offenses. In this regard, it is significant to notice the variations of language from that favored in the previous amendments. In them the language is mandatory or prohibitory-shall or shall not. Does not the mandatory language merely mean to make unconstitutional, null and void, any act contravening the mandate or prohibition? In the Civil Rights Cases, 12 it is said: (The Fourteenth Amendment) "nullifies and makes void all state legislation and state action of every kind, which impairs the privileges and immunities of citizens of the U. S., or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws. It not only does this, but, in order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the amendment invests Congress with power to enforce it with appropriate legislation. To enforce what? To enforce the prohibition. To adopt appropriate legislation for correcting the effects of such prohibited state laws and state acts, and thus to render them effectually null, void and innocuous." But the language "is prohibited" not only makes a contravening act void, but makes a violation an offense. The State or even Congress itself, cannot authorize the manufacture, sale or transportation of intoxicating liquors, and the act of manufacture, etc., is criminal, and the court is left to its sound discretion (in the absence of Congressional legislation) to fix the penalty. In any event, where there was a conspiracy to sell, etc., the conspiracy should be punishable under Sec. 37 of the United (11) U. S. v. Hudson, 7 Cranch. 32. (12) 109 U. S. 3. Public policy forbids a real estate broker to act for both parties to an exchange of land, in absence of their knowledge that he is so acting and their express or implied assent thereto; and one who acts in violation of this rule cannot recover for his services, even on an express promise, and even though the exchange of property was of value to the owner; but, if both parties have knowledge that the broker is acting for them both, and do not object thereto, but allow him to do so, they will be held to have assented to his acting in a double capacity. This is an action for an injunction restraining the defendant from negotiating a note and from assigning the mortgage given to secure the same, and for the delivery of the note to the plaintiff and the release and cancellation of the mortgage. There were two counts in the complaint relating to different transactions. The first was decided in favor of the defendant and is not connected with this appeal. Under the second count the court found the facts in substance as follows: The plaintiff had employed the defendant as her broker in a prior real estate transaction, and as a result had become the owner of an apartment block in Waterbury. Finding the block too big for her convenience, she requested the defendant to sell or exchange it. At this time one German and his wife, owning real estate in Waterbury, placed it with the defendant for sale. The defendant informed the plaintiff that he might effect an exchange of the two properties, and requested her to look over the German property. She did so, and came to the conclusion that she would exchange her property for this, if satisfactory terms could be arranged. The defendant informed the plaintiff that he would interview the Germans, and, if a deal was consummated, he would expect a commission of $1,000 from her in payment of his services rendered her The in making the exchange. The plaintiff accepted defendant's proposition and agreed in writing to pay him $1,000 for his services if the exchange of properties was consummated. defendant negotiated with the plaintiff and with the Germans as to an exchange of equities, and as a result of his negotiations it was agreed that there should be an exchange of equities; the Germans to pay the plaintiff $500 cash in addition to the conveyance of their equities. The plaintiff accepted the proposition negotiated by the defendant; a contract drawn by the defendant for the exchange of properties was made between the parties, the defendant signing the contract as plaintiff's agent, and this contract was signed by the plaintiff before the deeds were passed. Thereafter deeds were passed and the exchange was completed. Upon completing the exchange, the plaintiff executed and delivered a note for $1,000 to the defendant for his services as agreed, and also gave defendant a mortgage to secure this note. The defendant received the sum of $315 from the Germans as a commission in payment of the services he rendered them in the exchange. The defendant never informed the plainitff that he was to receive or that he did receive a commission from the Germans in this transaction, and she did not know such fact. No sort of duress was practiced by the defendant on the plaintiff in the making and delivering of the said note and mortgage, except such, if any, as arises from the other facts in the case. The defendant believed that he could collect a commission from each party in the exchange. whether or not the party knew that he was to be paid, or had been paid, a commission by the other party. As a result of the services rendered by the defendant for the plaintiff, she increased the value of her holdings, and to this extent the defendants' services were of value to her. On these facts the court found that the defendant was acting as the agent of the Ger mans, and not as agent of the plaintiff, and rendered judgment for an injunction as prayed for, for the surrender of the note, and the release and cancellation of the mortgage. The defendant appeals, for the various reasons noticed in the opinion. GAGER, J. (after stating the facts as above). [1] In Zimmerman v. Garvey, 81 Conn. 570, 71 Atl. 780, the duty of real estate brokers with respect to fidelity to their clients was clearly and concisely stated by this court: "A recognized rule of public policy forbids a real estate broker, as it does agents generally. to act for both parties to a transaction, in the absence of their knowledge that he is so act |