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WAGES. See Assignment.

WATERS AND WATERCOURSES. Mill-ouners Mill-lams Right of Passage Waters-Reasonable Use. -A mill-owner upon a floatable river is pot under legal obligativu to provide a public way, for the passage of logs over his dam, better than would be afforded by the natural condition of the river unobstructed by his mills. The right of passage is the natural flow of the river or its equivalent: Pearson v. Rolfe, 76 Me.

A mill-owner is not under legal obligation to furnish any public passage for logs over his dam or through his mills at a time when the river at such place, in its natural condition, does not contain water enough to be fioutable if unobstructed by mills, although the river is generally of a floatable character : Id.

Whenever a river, with mills upon it, is floatable, and the mill-owner and those who want to float logs past the mills are desirous of using the water at the same time, all parties are entitled to reasonable use of the common boom; the right of passage is the superior, but not an usurping, excessive or exclusive, right: the law authorizing mills put some incumbrance upon the right of passage: Id.

What is a reasonable use is a question of fact, and depends upon the size and nature of the stream, the extent and kinds of business upon it, and all other circumstances : Id.

LIST OF THE PRINCIPAL NEW LAW BOOKS. BARBOUR.--A Summary of the Law of Parties to Actions at Law and Suits in Equity. By 0. L. BARBOUR. 2d ed. Revised and adapted to the Codes and Recent Statutes. 8vo., pp. 875. Albany: W. C. Little & Co.

BARTON.-IIistory of a Suit in Equity from its commencement to its final Termination. By č. Barton. New Edition adapted to Modern Practice in the United States, with Numerous Equity Forms. By H. H. INGERSOLL. And an Appendix Containing the Rules of Practice for the Courts of Equity of the United States, and a Digest of the Acts of Congress relating to Equity, revised to date, and the Ordinances of Lord Bacon. 8vo., pp. 245. Cincinnati : Robert Clarke & Co.

BASSETT.-Criminal Pleading and Practice, with Precedents of Indictments and Special Pleas, adapted for all the States and the Reformed Procedure. By James Bassett. 2d ed. Revised and Enlarged by II. BISMORE. 8vo., pp. 563. Chicago : E. B. Myers & Co.

BRUNNER.-Reports of Cases Argued and Determined in the Circuit Courts of the United States. Collected and Annotated hy Albert BRUNNER. Vol I. (Cases omitted from the regular series of reports.) 8vo., pp. 742. San Francisco: Sumner, Whitney & Co.

CANFIELD.-Laws of the United States and the Several States and Canada, relating to Telegraphs. Compiled for the Baltimore and Ohio Tel. Co. New York: The James Kempster Printing Co.

HIGGINS.-A Concise Treatise on the Law and Practice of Patents for Inventions. Consisting of the Patents, Designs and Trade-marks Act, 1883.

pp. 737.

The New Rules and Numerous Notes and Cases. By C. Higgins. 8vo., pp. 217. London: W. Clowes & Sons, Limited.

KENT.—Commentaries on American Law. By James KENT. 13th ed. by C. M. BIRSES. 4 rols. Boston: Little, Brown & Co.

Lowell. The Transfer of Stock in Private Corporations. By A. L. LowEll and F. C. Lowell. 8vo., pp. 297. Boston: Little, Brown & Co.

Mac SwinNEY.-'The Law of Mines, Quarries and Minerals. By R. F. Mac Swixxey. 8vo.,

Mielzirer.—The Jewish Law of Marriage and Divorce in Ancient and Modern Times, and its Relation to the Law of the State. By M. MIELZIRER. Svo., pp. 149. Cincinnati : Block Pub. and Print. Co.

Morey.-Outlines of Roman Law, Comprising its Historical Growth and General Principles. By W. C. MOREY. 8vo., pp. 433. New York and London: G. P. Putnam's Sons.

Pollock.-A Digest of the Law of Partnership. By F. Pollock. 3d ed. Sro., pp. 162.

RAPALJE.-A Treatise on Contempt, including Civil and Criminal Contempts of Judicial Tribunals, Justices of the Peace, Legislative Bodies, Municipal Boards, Committees, Notaries, Commissioners, Referees and other Officers exercising judicial and quasi judicial functions. With Practice and Forms. By STEWART RAPALJE. 8vo., pp. 273. New York: L. K. Strouse & Co.

REESE.-Text-Book of Medical Jurisprudence and Toxicology. By J. J. REESE. 8vo., pp. 606. Philadelphia : P. Blackiston, Son & Co.

Roby.-An Introduction to the Study of Justinian's Digest, containing an Account of its Composition and of the Jurists used or referred to therein. Together with a full Commentary on one l'itle (De Usufructu). By H. J. Roby. 8vo., pp. 260. Cambridge: University Press.

SEBASTIAN.—The Law of Trade Marks and their Registration, and matters connected therewith ; including a Chapter on Goodwill. Together with the Patents, Designs and Trade Marks Act 1883, and the Trade Marks, Rules and Instructions thereunder; Forms and Precedents; The Merchandise-Marks Act 1862, and other Statutory enactments; The United States Statutes 1708-81, and the Rules and Forms thereunder; and the Treaty with the United States 1877. By L. B. Sebastian. 2d ed. 8vo., pp. 560. London: Stevens & Song.

Smith.—A Treatise on the Law of Negligence. By II. Smith. 2d ed. Svo., pp. 312. London : Stevens & Sons.

Smith, ILARE, WALLACE, LANDRETA, LEWIS.-A Selection of Leading Cases on Various Branches of the Law; with Notes by J. W. SMITH. American Editors : J. I. ClarK HARE and H. B. WALLACE. 8th Am. ed., from the last English ed., with additional Notes and References to American Decisions. By J. I. CLARK HARE, L. S. LANDRETH and F. A. LEWIS. 2 vols. 8vo., pp. 2661. Philadelphia : T. & J. W. Johnson & Co.

SPEAR.—The Law of Extradition, International and Inter-State. With an Appendix, containing the Extradition Treaties and Laws of the United States; The Extradition Laws of the States ; Several Sections of the English Extradition Act of 1870, and the Opinion of Governor Cullom. By SAMUEL T. SPEAR. 21 ed. 8vo., pp. 766. Albany: Weed, Parsons & Co.

Travis.-A Law Treatise on the Constitutional Powers of Parliament, and of the Local Legislatures, under the British North America Act 1867. By J. Travis. Svo., pp. 184. Saint John, N. B.: Sun Publishing Co.



MARCH 1885.



RULES prescribing forms for the guidance of legislatures are incorporated in many of the state constitutions now in force. These vary in their scope, in some cases extending to a considerable number of requirements, and in others being few in number. They are also expressed in varying terms. Their purpose is the prevention of some of the evils which grew out of legislation when little or no restriction was placed upon the mode of procedure, “as if with the advance toward a higher civilization' greater precautions were requisite in legislative matters than in the early days of our state's history.”

The English Doctrine.—There are no restrictions upon the Parliament of Great Britain as to the mode of its procedure, and there is no such thing known to English law as the unconstitutional enactment of a statute. There can be no inquiry as to the regularity of an enactment; the enrolled act is a verity: Rex v. Arundel, Hob. 110; Prince's Case, 8 Coke 145. There is no common law in this country in conflict with this: People v. Devlin, 33 N. Y. 281 ; State v. Swift, 10 Nev. 176; Pangborn v. Young, 32 N. J. L. 29; Sherman v. Story, 30 Cal. 253; Falconer v. Higgins, 2 McLean 195; Pacific Railroad Co. v. Governor, 23 Mo. 362; Fouke v. Fleming, 13 Md. 412; Brodnar v. Groom, 64 N. C. 244; People v. Starne, 35 III. 121.

In many cases constitutional regulations of the forms of procedure Vol. XXXIII.-20


are said to be mandatory on legislative bodies; but after action the presumption is that they have been observed, and the courts will not go back of the enrolled act to impeach it. See Usener v. State, 8 Tex. App. 177; Central Railway Co. v. Hearne, 32 Tex. 546; Blessing v. Galveston, 42 Id. 611 ; Kilgore v. Magee, 85 Penn. St. 401; People v. Burke, 31 Cal. 661; Eld v. Gorham, 20 Conn. 8; People v. Commissioners, 54 N. Y. 276; Evans v. Browne, 30 Ind. 514; Bender v. State, 53 Id. 254; Commissioners v. Burford, 93 Id. 383; Edger v. Board, 70 Id. 331; Lottery Co. v. Richour, 23 La. Ann. 743; Green v. Weller, 32 Miss. 650; Swann v. Buck, 40 Id. 268; Mayor v. Harwood, 32 Md. 471; Thompson's Case, 9 Op. Attys.-Gen. 1; Miller v. State, 5 Ohio St. 275; Purdy v. People, 4 Hill 390; De Bow v. People, 1 Den. 14; State v. Glenn, 1 West Coast Rep. 50, and cases cited ante.

Conflict of Authority.The rule which seems to be established by these cases has not been uniformly held by several of the courts which decided them. In some states, especially California and Missouri, changes in the fundamental law have necessitated the establishment of a rule different from that announced in the cases cited. But before the constitutions now in force in these states were adopted there was a conflict of authority. In Fowler v. Peirce, 2 Cal. 165, the court say, by MURRAY, C. J.: "I am of opinion that there is no difference between declaring a law uuconstitutional for matters patent upon its face, though passed regularly, and a law apparently good, yet passed in violation of those rules which the constitution has imposed for the protection of the rights and liberties of the citizen.” The court held an act which purported to have been approved on a day on which it might legally have been done, void, because as a matter of fact it was approved when the power to do the act did not exist. In State v. McBride, 4 Mo. 303, the question was whether an amendment to the constitution had been voted for by the required number of members of the legislature, and it appears to have been determined by the record contained in the legislative journals. This case was doubtless overruled by Pacific Railroad Co. v. Governor, ante, which has been overruled by Bradley v. West, 60 Mo. 33, and State v. Mead, 71 Id. 266. Both these last cases were decided under the present constitution, which differs materially from that in force when the earlier cases were ruled. Sherman v. Story has also been overruled by Weill v. Kenfield, 54 Cal. 111, under a like change in the fundamental law. The earlier cases in Indiana held to the American doctrine. See Skinner v. Deming, 2 Ind. 558; Coleman v. Dobbins, 8 Id. 156. And intimations and dicta in its favor are to be found in some of the New York cases, which have been frequently cited in its support. See People, v. Purdy, 2 Hill 31; s. c. in error, 4 Id. 384; De Bow v. People, 1 Den. 9; Com. Bank v. Sparrow, 2 Id. 97. The rule in Maryland has been changed by Berry v. Baltimore, etc., Railroad Co., 41 Md. 446, and Legg v. Mayor, etc., 42 Id. 203. The cases cited from Mississippi must be considered overruled by Brady v. West, 50 Miss. 68, where the court say: “It is clearly competent to show from the journals of either branch of the legislature that a particular act was not passed in the mode prescribed by the constitution, and thus defeat its operation altogether.” Two Iowa cases (Clare v. State, 5 Iowa 509; Duncombe v. Prindle, 12 Id. 1) are often cited in support of the doctrine that the enrolled act is conclusive; but they only determine that where there is a conflict between the printed and the enrolled act, the latter is the ultimate proof of the expression of the legislative will. Whether the journals were competent, evidence, or their effect, was not considered in either case: Koehler. v. Hill, 60 Iowa 543.

The American Doctrine.—The power and duty of courts to look behind the enrolled act and determine that it has received the required number of votes, or that in its enactment there has been a substantial compliance with the forms prescribed by the constitution is upheld by a large number of cases : Skinner v. Denning, 2 Ind. 528; Post v. Supervisors, 105 U. S. 667; Smithee v. Garth, 33 Ark. 17; Hull v. Miller, 4 Neb. 503; Walker v. Griffith, 60 Ala. 361; Williams v. State, 6 Lea (Tenn.) 549; Supervisors v. Heenan, 2 Minn. 330; Coleman v. Dobbins, 8 Ind. 156; In re Roberts, 5 Colo. 525; In re Welman, 20 Vt. 656; Legg v. Mayor, fc., 42 Md. 203; Osburn v. Staley, 5 W. Va. 85; State v. Platt, 2 S. C. 150; Walker v. State, 12 Ind. 200; State v. Hagood, 13 Id. 46; Worthen v. Badgett, 32 Ark. 496; State v. Mead, 71 Mo. 266; Smithee v. Campbell, 41 Ark. 471; South Ottawa v. Perkins, 94 U. S. 260; Spangler v. Jacoby, 14 Ill. 297; Prescott v. Trustees, 19 Id. 324 ; People v. Starne, 35 Id. 121; Ryan v. Lynch, 68 Id. 160: Turley v. County of Logan, 17 Id. 151; Burr v. Ro88, 19 Ark. 250; Weill v. Kenfield, 54

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