to ask is a fair return upon the value of that which it employs for the public convenience."

Both of these cases have been cited over

and again where rates fixed by legislative acts, by public service commissions and by municipal ordinances were passed upon and now, for the first time, we see in an opinion by U. S. Supreme Court a qualification about impossibility of performance and about the necessity of showing that a rate. contract will not be unremunerative when the entire term is taken into consideration.

The question of impossibility of performance is not one that concerns the compensation which one is to receive for a service that is contracted to be rendered. This is a supervening condition arising after a contract is entered into. A familiar illustration is found in leases for a particular kind of business which statute forbids to be carried on, or it may arise out of circumstances that make it, without the fault of either party, impossible of performance. It is where present surroundings are assumed to continue, but unexpectedly they cease. Generally speaking, it may be said it is not a thing that relates to cost and it applies, if it apply at all, to any and all sorts of contracts, whether the public have an interest in their performance

or not.

The guarantee of adequate compensation, however, to a public service company, is in the rendition of service in the usual customary way. And agreements cannot vary this.

It is the duty of the state to see to it that such a company shall be vested with an inherent power and with inherent right, to exact a living compensation for its services, or it must fail in its duty to the public.

It might be possible for the state or its authorized tribunals to say that contracts for a fixed term shall be irrepealable. But, even that sort of thing must be within reason. If it is plainly evident that a rate contract for a twenty-five-year term would, or

probably might, endanger the ability of a public service company at all times to render to the public the service it should, the state in sustaining it would overstep the limits of police power, which must always have regard to the constitutional rights of the company.

If such a term were fixed by a statute, then inquiry would be open whether it could tie up the police power of successive legislatures. But whether the term be stated by constitution or statute the length thereof, if unreasonable, could be inquired into under the right of the public service company to maintain itself throughout the term.

NOTES OF IMPORTANT DECISIONS.

UNLIQUIDATED CLAIMS ARISING EX DELICTO NOT PROVABLE IN BANKRUPTCY UNLESS TORTFEASOR WAS ENRICHED THEREBY.-The Supreme Court lately has held that amendments to the bankruptcy act have not had the effect of making a claim for damages arising out of tort provable in bankruptcy. Schall v. Connors, 40 Sup. Ct. 135.

The opinion of the court, by Justice Pitney, is a very elaborate review of the course of legislation and of the efforts in a long period of agl tation by commercial conventions, boards of trade, chambers of commerce and other commercial bodies to include tort claims among provable debts against bankrupts. There is also recitation of measures proposed in Congress supposably to this end.

The court held, that it requires a strained construction of the new legislation to make it so to amend existing law so as to "include claims arising purely cx delicto." Therefore, the court concludes that: "upon every consideration we are clear that claims based upon a mere tort are not provable." But the opinion says that:

"Where the tortions act constitutes at the same time a breach of contract, a different question may be raised with which we have no present concern; and where, by means of the tort, the tortfeasor obtains something of value, for which an equivalent price ought to be paid, even if the tort as such be forgiven, there may be a provable claim quasi ex contractu."

It seems to us that every intendment should be in favor of one having a claim in which

though based primarily on tort, the tort may be waived, and the claim provable in a court of bankruptcy. The question of the damages being unliquidated ought not to be a test of provability, or an estate could be enriched by a tortfeasor in property, obtained at the positive loss to another, who would have no claim for his contribution to an estate, unwillingly though that contribution has been made.

When an amendatory law is claimed to go further than this, it ought to be very clear that such is its intent. This would be to expose assets to diminution in distribution to creditors on claims arising ex contractu, to which estates ought to be, primarily at least, subject. Bankruptcy is a statutory mode for distribution of assets, and those entitled to participate therein ought to stand on the same basis of general right. What is not provable, of course, should not be released by discharge in bankruptcy. Tort-feasors do not pledge or be thought to pledge particular property for wrongdoing, even though judgment therefor shall be, or has been, rendered.

The facts in that case show that a decedent with a hammer, from which blow he died. A quarrel arose and deceased told another employe to "straighten up" in the carrying of a heavy bar. Words passed between the two and the other employe seized a hammer and threw it at deceased.

The court said: "It has been held that an employe is injured in the course of his employ. ment where the injury occurs within the period of his employment at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment, or engaged in doing something incidental thereto."

Then the court quotes from a decision in another state, where it is said:

"Where men are working together at the same work, disagreements may be expected to arise about the work, the manner of doing it, as to the use of tools, interference one with one another, and many other details, which may be trifling or important. Infirmity of temper, or worse, may be expected, and occasionally blows and fighting. When the disagreement arises out of the employer's work, in which two men are engaged, and as a result of it one in

jures another, it may be inferred that the injury arose out of the employment."

This sort of ruling certainly takes into consideration the strictly human element, and to contemplate that it is always present as a factor in the risk assumed. And it considers a human being as an instrumentality with all of the qualities of a human being.

While, however, this is recognized, there is nothing said about conduct of one injured as being of a nature provocative of what results in injury, and, therefore, making him guilty as bringing it on. Many workmen's compensation acts make a workman's wilful fault preclude recovery. If so, might not the essential wrong resulting in injury be considered, when there are disputes or disagreements between workmen?

PROTECTING TRADE NAME AND GOOD WILL IN PREVENTION OF PRICE-CUTTING IN RESALES.-The case of Robert H. Ingersoll & Bro. v. Hahne & Co., 108 Atl. 128, decided by New Jersey Court of Chancery, shows an attack on price-cutting by retailers in the sale of a manufactured article, under a contract between them and a manufacturer, from what to us is a wholly new angle.

The facts show that the manufacturer had built up a large business in the manufacture of watches, which it sold under certain trade names, as, for example, "Yankee Watch" and "Dollar Watch," to be sold to ultimate purchaser for $1.35. Its trade had grown under much advertising for watches at this price, all of which were sold under a trade mark and guaranty. It made contracts with the retail trade not to resell at less than this price unless there should be removed from the article sold the name of the watch sold, the trade name and the notice of guaranty.

The manufacturer brought its bill to prevent retailers reselling or otherwise disposing of watches with the trade name and notice of guaranty unremoved, when they were resold at less than the standard price. It is recited that defendant, a jobber, had sold to defendant the watches to be disposed of at a cut price, etc. It was urged by defendant that the contract against price-cutting was contrary to the Sherman and Clayton Acts, reference being made especially to Boston Store of Chicago v. American Graphopone Co., 246 U. S. 8.

It is unnecessary here to go into much consideration of federal cases touching these acts, but we content ourselves with what the Chancery Court says, as differentiating this case

from those coming under their scope. The Court said:

"In the cases which have gone to the Supreme Court of the United States there have been involved questions of patent or copyright law not here present. In those cases in which the right to fix a resale price has been under consideration the prohibition against the resale has been against the resale of the article itself. The name or trade mark or what not has been so much an integral part of the article that a resale of the article without reference to the trade mark or trade name would be practically impossible. In the case at bar the prohibition is not against the resale of the article, nor is it impracticable to resell the article without reference to the trade name. Indeed, complainant offers to manufacture watches similar to those marked with its trade name without the trade name. Complainant does not seek to retain any right in the article itself; it merely seeks to restrain the use of its trade name and good will, except under conditions fixed by it. * * It has an interest, in addition to that of mere protection to its trade name and good will, for it guarantees the article sold and scrupulously performs its guaranty, maintaining a large and expensive repair department for this purpose."

Omitting the final clause of the above sentence, as being a volunteer act by the manufacturer for its own benefit, and we must confess that it seems to us there is not such an inextricable mingling of trade name and good will with the sale and price of the article that some scheme for their protection should be thought impossible. Certainly trade name and good will are property and entitled to protection. Each contract of this kind, however, is referable to surrounding circumstances as to the separability of their properties in resales.

IS THE JUDGMENT OF A FEDERAL COURT A DOMESTIC JUDGMENT?-Domestic judgments by courts of superior and general jurisdiction are not subject to collateral attack, unless want of jurisdiction appears in the face of the evidence; otherwise, an irrebutable presumption is indulged that the court had jurisdiction, both of the persons and the subject-matter. This is a rule of evidence, which is adhered to by the great majority of courts, although in some states there is a tendency to let down the bars and permit want of jurisdiction to be shown by extrinsic evidence. The old rule is the wisest, however, and a perfect remedy is afforded to one injured by a void or voidable judgment to proceed directly to correct or vacate the judgment by motion or bill in equity.

But the point has recently been raised whether the judgment of a federal court located in the state is a "domestic judgment" and

entitled to the benefit of the rule just referred to. Louisville & Nashville Ry. Co. v. Tally, 83 So. Rep. 114. The Court in holding that such a judgment was a "domestic judgment," said:

"It is true the judgment in question was rendered by the federal court, but it is a court of this state, and to every intent and purpose its judgment is what is termed a 'domestic judgment' and should be accorded the same verity as one rendered by the courts of general jurisdiction of this state. Black on Judgments, § 285; Pearce v. Winter Iron Works, 32 Ala. 68; Riverside Cotton Mills v. Ala. Mfg. Co., 198 U. S. 188, 25 Sup. Ct. 629, 49 L. Ed. 1008; 15 R. C. L., § 364, p. 886; Reed v. Vaughan, 15 Mo. 137, 55 Am. Dec. 133, and note. See, also, note 32 Am. St. Rep. 213. We think that the rule was well stated in the case of Sandwich Mfg. Co. v. Earl, 56 Minn. 390, 57 N. W. 938, wherein it was said that a judg ment of a federal court in this state cannot be collaterally attacked in a state court, unless a want of jurisdiction appears on the face of the record; the theory being that it stands on the same footing as a judgment of a domestic court of record."

(See 23 Cyc. (d), p. 1600, note 73.)

THE CONSTITUTIONALITY OF THE CONSTITUTION IS NOT A JUSTICIABLE QUESTION.

If the procedure outlined in the Constitution has been followed in adopting the amendment and the subject-matter is not excepted under Article V, the validity of the amendment is not open to question. In a republican or democratic form of government, the people are the ultimate source of power. They have been called the Court of Last Resort. When they adopt a constitution or an amendment to it, in a legal and orderly manner, the court interprets it and determines whether the procedure followed in amending it was valid. But once it has been adopted according to the manner prescribed therein, the court, which is one of the great departments of government, operates under that Constitution, not above it. The people under this form of government may, of course, do unwise things. This is the alleged danger of a republican or democratic form of government. If the elector

ate is not intelligent, moral and patriotic, our government will fail. Our forefathers took this chance in choosing a form of government which was controlled entirely by the people. History proves that they builded more wisely than they knew. The people have kept step with advancing civ

ilization under the sane construction of our Constitution by the Supreme Court.

The last advance in the prohibition of the beverage-liquor traffic, which is one of the greatest evils that ever cursed humanity, is additional evidence of the wisdom of our forbears. This is generally recognized as the greatest piece of constructive legislation that was ever adopted by a self-governing people. The determination of the people to secure this legislation, is evidenced by the fact that two-thirds of Congress elected by the people voted to submit the question to the state legislatures for adoption or rejection. Forty-five of the forty-eight states of the Union ratified the amendment through their legislatures within fourteen months after it was submitted. Thirtythree states had prohibited the beverage liquor traffic before the Eighteenth Amendment was adopted. Sixty-two per cent of the population of the United States lived in territory under state or local prohibition before the Constitutional provision was accepted as a national governmental policy. Inasmuch as the people have spoken through their legal representatives in the only way provided in the Constitution for amending the organic law, the courts should not interfere with that guaranteed and Constitutional right of the people to promote their general welfare in a legal and orderly manner. In other words, when the method prescribed has been used by the people, the question is a political one, and not judicial.1

"A problem not infrequently arising in

wisdom or folly of an executive or legislative act," etc.

This question was decided in principle when Oregon adopted the initiative in referendum, and it was claimed that it was a violation of the guarantee to the states of a republican form of government. The Court held that this was a political question, and not a judicial one.2 In other words, all questions relating to what Constitution shall be adopted, or how it shall be amended, if the prescribed manner is used, are not questions for the court.

con

The Eighteenth Amendment was. tested on this point in the United States District Court at Cincinnati. In the case of Erkenbrecker v. James M. Cox, the Court so held:

"But it is argued, that an amendment. must be germane to that which it amends, and that there is no clause in the Constitution to which the proposed amendment is in any way related. Assuming, however, that it is not, yet one unwilling to go so far as to say that the people have limited their right to surrender their power over any subject theretofore reserved because unrelated to any power theretofore surrendered. The amendment goes to the Constitution as a whole, not necessarily to any particular clause of it. The Constitution is the organic and fundamental law, but that law may be changed, added to or repealed if that is done by the states and the people themselves in the way provided. Their power to better it, as they think, is not to be hamstrung by mere rigidity of definition of words. Adding something new to the organic law is an amendment to the organic law, in the judgment of this

Court."

It is manifest, therefore, that either from. the standpoint of being germane or from the viewpoint that the question is not justice

ical questions involved. All political questions are questions for the political department of the government to settle; they lie wholly outside of the jurisdiction of the courts. Thus, the courts never decide as to

WAYNE B. WHEELER.

Washington, D. C.

HAS THE LEGISLATURE POWER TO RESTRICT THE SALE OF THE STATE'S NATURAL PRODUCTS INTO OTHER STATES?

A discussion of this subject requires consideration of two great powers-each of such powers possessed by a sovereign government. In the exercise of these powers by the respective governments there is a twilight zone, in which, at times, it may be difficult to define the precise line of division in the exerice of the respective powers.

"The Congress shall have power *** to regulate commerce, with foreign nations, and among the several states. ***” This power was granted by the states to the Federal Government, by the express terms of the Federal Constitution. And, again, by the express terms of the Federal Constitution, "No tax or duty shall be laid on articles exported from any state. *** No state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws."

The framers of the Constitution were wiser in their day even than they knew when they incorporated into the Federal Constitution the grants of power to the Federal Government respecting interstate commerce. This statement must be conIceded when we but consider the immense volume of interstate trade, the tremendous machinery engaged in its transportation, the lightning flash of communication, the wonderful discoveries of science and material resources and the startling social developments of the present day. The nation owes its commanding position in so many lines. among the nations of the earth today very largely to the provisions of the Federal Constitution above set forth.

The foregoing provisions have prevented our nation from being made up of a num

gress, and Congress alone, has full and plenary power over interstate commerce, and with this power no state can interfere; therefore, any law enacted by a state forbidding the sale of a commodity in interstate commerce, when that commodity has been reduced to the possession of a citizen, or the transportation thereof, in a lawful manner and for lawful purposes, through the channels of interstate commerce, is in conflict with the Federal Constitution, and, therefore, invalid. The great purposes of the nation, as a nation, would be stifled were the state permitted to restrict the free, lawful flow of commerce between the states. And, moreover, if a state possessed the power to forbid the sale of its natural products into other states, then the highest possible development of a state itself would not be accomplished. Nature, in her economy, has widely distributed her natural wealth. It is in the assembling and combining of the natural products of the several states by human energy-requiring the building and operating of great arteries of commerce-inspiring the genius of manthat society makes great advances. And, after all, the state that is wisely and honestly governed in the interest of and for the good of all is the truly great commonwealth.

When framing the Federal Constitution, however, the states reserved to themselves their inherent police power; and, further, by the Tenth Amendment to the Federal Constitution it was expressly provided that "the powers not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

The police power reserved to the states is absolutely essential to the exercise of their sovereignty within the spheres of their sovereignty; without this reserved power a state would be under great disadvantages in carrying out the purposes of its sover

each commercially jealous of the others, each seeking retaliation of the others. Con

and promote the general welfare, happiness and prosperity of its people. It is difficult,