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is a business affected with a public interest and that as such the legislatures could fix the maximum as well as the minimum wages, as well as the rates and charges, there would have been less ground for dissent, and though his opinion would perhaps have aroused a stronger protest among the unthinking, it might at the same time have commanded a wider measure of acclaim among the thoughtful.

What is to be said of the constitutionality of the various state laws? Would Justice Sutherland and the majority of the court say that since they are adapted to local conditions, are passed by the state legislatures and approved by the state courts, the Supreme Court of the nation should stretch the law, as in the case of Powell v. Pennsylvania, and yield the point, or will they say that they are fundamentally unreasonable? Will they draw a distinction between the statutes of Minnesota, California, Colorado, Oregon, Washington, and Wisconsin which make violations of their provisions criminal offenses, and those of Massachusetts, Nebraska, Arkansas, and Utah which merely provide for commissions to fix the wage and seek to bring about their adoption by publishing the names of the dissenting employers in the newspapers? What will they do with the Oregon law if it once more comes before them?

A. A. B.

EASEMENTS-IMPLICATION OR ESTOPPEL FROM EXHIBITING Plat.-In the case of Weber v. Aluminum Ore Co. 304 Ill. 277, 136 N. E. 685, a syndicate owned a tract of land of about 70 acres. This syndicate appointed a trust company to act for it and to mortgage, sell and dispose of the land in a certain way. No plat of the land was ever put on record, but a plat was made of a part of the property, into lots, blocks, streets, and alleys, and appellants purchased, through the president of the trust company, a portion of the land. In that connection the president of the trust company exhibited a plat to appellants showing an alley immediately adjoining the property that appellant proposed to purchase, and appellants purchased the land with the understanding that this was an alley immediately adjoining the property so purchased. The deed to the property (from the syndicate), however, contained the provision that it was made with the understanding that when the land was platted the grantor, its successor or legal representatives might include in the plat the property thus conveyed along with the adjoining property, and might subdivide the same into lots of 25 feet front, with a 20-foot alley in the rear of the premises. Thereafter the balance of the land so owned by the syndicate was purchased by appellee, and appellee has denied the right of appellant to the alley above referred to, and appellant brought this bill for an injunction.

The court denied appellants' claim to this alleyway as an easement by estoppel, because, so the court held, a president of a corporation has no authority implied by his office to charge his principal

in that way.

The case is interesting in view of the oft-stated rule that an easement may arise by implication from the fact that property was sold according to a plat holding out such easement as existing (Clark v. Gaffeney 116 Ill. 362; Gulick v. Hamilton 287 Ill. 373; Cihak v. Klekr 117 Ill. 643; Turpin v. Dennis 139 Ill. 274; Field v. Barling 149 Ill. 556; Swedish Ev. Lutheran Church v. Jackson 229 Ill. 506; Hawkins v. Hendricks 247 Ill. 517). But it would seem that these cases are all cases either where the plat appeared of record, or it was sought to enforce the claim of easement against the original owner, and even there it was held that a plat thus exhibited by school officers who had no authority to plat streets gave no easement (Seeger v. Mueller 133 Ill. 86).

In the principal case there was no plat of record, nor was the title still in the original owner. Title had gone to a third person, so that, in addition to the point that the officer who exhibited the plat had no authority to bind his principal in that way, there was raised here also the question: "May an easement, as against a grantee of the original owner, result from exhibition of and reliance upon a plat not of record.” It would seem it may if the easement is continuous and apparent (ILL. L. Rev. XV 101), for then a subsequent purchaser of the property over which the easement is claimed is put upon inquiry.

In the principal case, however, as already stated, the court found that there was no right even as against the original owner, either by *implication or estoppel, or by prescription, for, to use the language of the court, "a verbal permission or permissive use of the property will not ripen into a prescriptive right, however long such permissive use is enjoyed.” (The strip had been used as a farm field-road while the land was still a farm and it appeared that some coal had at times been hauled over it; but this the court finds was permissive only and not under claim of right.)

The claim of way of necessity appears also to have been raised, but as the property abutted on public streets there was no merit to such claim (ILL. L. Rev. XII 294).

E. M. L.

EVIDENCE UNLAWFULLY OBTAINED_Right TO INTRODUCE IN EVIDENCE.People v. Brocamp 307 I11. 456, 138 N. E. 728, contains this language:

“This raises in this court for the first time the question whether it is the duty of the court to determine whether or not property and papers of the defendant were obtained by unlawful search and seizure when an application has been made in apt time for their exclusion, and it is our duty in view of our obligations to support the constitution, to hold that it was the duty of the trial court to inquire into the truth of the charge of defendant, and, if it be found to be true, to sustain his objection to the introduction of all exhibits that were claimed by him as his property and taken from his home by means of unlawful search and seizure.”

In People v. Paisley 288 Ill. 315, after pointing out that in that case the evidence, certain books of banks conducted by defendants, had not been unlawfully obtained, the court says: “Even papers and documents illegally seized from a defendant's possession are admissible in evidence against him in a criminal case if otherwise competent": citing two Illinois cases, one of which, Gindrat v. People 138 Ill. 105, was very similar to the principal case, for there the evidence was jewelry which a plain clothes policeman got from the rooms of defendant by searching them without warrant or authority. “The court at the trial permitted the prosecution to show, over the objections of the plaintiffs in error," etc., from which it appears that here the evidence was objected to, but the court said (138 Ill. 111):

"Courts in the administration of the criminal law, are not accustomed to be oversensitive in regard to the sources from which the evidence comes .. In the other case, Trask v. People 151 Ill. 529, the court says of the contents of a valise found by a police officer in a room occupied by the defendant:

"The same question arose in two recent cases: Gindrat v. People 138 Ill. 103, and Siebert v. People 143 Ill. 583, and we there held that, although letters or papers may be unlawfully obtained by an officer from the possession of a party charged with crime, this will afford no valid objection to their admissibility against him if they are otherwise competent.”

The court in People v. Paisley, supra, cites also two United States cases, in one of which, Ensign v. Pennsylvania 227 U. S. 592, schedules filed by a bankrupt were used against him in another matter, and in the other, Johnson v. United States 228 U. S., books which the bankrupt's receiver in bankruptcy had gotten possession of were used against the bankrupt in a criminal proceeding.

The situation thus projected is further illuminated by the case of Silverthorne Lumber Co. v. United States 251 U. S. 390, which was on contempt because the officers of a corporation refused to deliver to the grand jury for inspection certain books of the corporation. It appears that certain representatives of the Department of Justice had gone to the office of the corporation, and “without a shadow of authority, had seized the books and papers and made photographic copies thereof." The district court ordered a return of the originals, but impounded the photographs and copies. Subpænas were then issued for the originals, refusal to obey which was the occasion for the contempt order. The court says (p. 391):

“The proposition could not be presented more nakedly. It is that although, of course, its seizure was an outrage which the government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more regular form to produce them; that the protection of the constitution covers the physical possession, but not any advantages that the government can gain over the object of its pursuit by doing the forbidden act. . The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used


at all. Of course, this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be procured like any others, but this knowledge gained by the government's own wrong cannot be used by it in the way proposed. The numerous decisions, like Adams v. N. Y. 192 U. S. 585,

holding that a collateral inquiry into the mode in which evidence has been gotten, will not be allowed when the question is raised for the first time at the trial, are no authority in the present proceeding.

It is interesting to note in passing that the government may use papers stolen by a thief and by him given to the government. (Burdeau v. McDowell 256 U. S. 465, Mr. Justice Holmes, who wrote the opinion just above copiously quoted from, and Mr. Justice Brandeis dissenting.)

The Supreme Court of the state in the principal case, it seems, proceeds on analogy to the rule applied by the federal decisions ( 307 Ill. 455, 456), viz., that before trial the defendant must apply to the court having the case for the purposes of which the evidence was unlawfully obtained for an order that the evidence be returned to the defendant, and if this motion is made, then when the case comes on for trial, and the evidence is offered and objection is made to it, such objection must be sustained. That, it appears, was done in the principal case, and that is the point of distinction of the principal case from the cases cited in People v. Paisley, supra, and referred to above. But note the language in the principal case (307 Ill. 456):

and it is our duty to hold that it was the duty of the trial court to inquire into the truth of the charge of the defendant, and, if it be found to be true, to sustain his objection to all exhibits that were claimed by him as his property and taken from his home by means of unlawful search and seizure.”

Does the court intend by this language to go further and hold that objecting to the evidence thus unlawfully obtained, when it is offered at the trial, is enough to call for its exclusion whether the preliminary proceedings to return the evidence were had or not?

E. M. L.



Second edition. By Felix Frankfurter. Cambridge: Har

vard University Press, 1922. Pp. 789.

The appearance of the second edition of this important selection of cases is very timely, coming, as it does, on the eve of an increased interest on the part of the public in the transportation facilities of the country. The Transportation Act of 1920 inaugurated a new policy with respect to federal regulation of interstate commerce, particularly with reference to carriers by rail; and, while Mr. Frankfurter's selection of cases contains but relatively few decisions concerning this new phase of the transportation problem, it is an indispensable guide-book to the present law, in fact the best work in the field, if one would understand the intricacies and complexities of the development of federal regulation of interstate carriers by rail.

Mr. Frankfurter has spared no pains in bringing together within a brief compass the leading cases on this ever-increasing and expanding field of case law. Some of these, besides other values which they may possess, show the growth and development of the law within the past decade. The Intermountain Rate cases—in fact almost all the cases-reveal clearly the enormous growth in executive justice within the past few years, and, as one of its concomitants, the growth of a dogma of judicial review of the findings of administrative tribunals. Fortunately, the federal Supreme Court has in the majority of instances taken a statesmanlike attitude toward the findings of this "economic court” or “expert jury” known as the Interstate Commerce Commission, so that on the whole the commission has not been hampered by a too rigid review of its findings. How far the Ohio Valley Water case, 253 U. S. 287 (1920), will modify this doctrine of review is questionable. Mr. Frankfurter does not consider this case, as it is perhaps outside the field of interstate commerce, the case being a review of a state commission and not of the Interstate Commerce Commission.

The other tendency observable in this collection of cases is that of the increasing expansion of federal regulation and federal law over those of the states. From the Shreveport cases to the recent Wisconsin Rate cases there is a steady trend toward federal regulation and control over intra-state rates in the interest of interstate rates, all in the interest of providing an "adequate transportation system to the people of the United States." Here again, if one enjoys philosophizing, it might be said that the cases show that the Supreme Court of the United States—at least with its personnel of the past—has not permitted a particular dogma of states' rights to obstruct the necessities and conveniences of an easy flow of commerce between the states, so that the people might be more ade

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