Another suggestion has been made which may confine the effect of the law more closely than was intended by the law-makers. This is the provision that the widow takes one-third in fee simple of the real estate of which decedent dies seized. The word "seized" is used here probably in its technical sense; if so, the application of the rule is limited to legal estates and does not extend to equitable estates or to estates based upon contract for purchase and the like. It will be remembered that the Dower Act of this state is expressly made applicable not only to legal estates as at common law, but also to equitable estates and interests under contracts. The use of the word "seized" may, therefore, cause considerable hardship in some of the applications of the law. Under the new law of descent the widow apparently obtains an additional power and right which may or may not be beneficially applied. She becomes practically an heir to the extent of one-third of the real estate. As an heir she obtains the right to cause partition of the real estate of which decedent dies seized. She may, if she be a second wife or otherwise unfriendly to intestate's children, compel the real estate to be sacrificed by public sale, or, in some circumstances, squeeze out infant heirs and deprive them of their inheritance. By partition or by mortgage, she can readily reduce her interest to cash, and, not ordinarily being experienced in the matter of management, may promptly squander and dissipate the provision which should benefit not only herself but the minor heirs. Serious consideration should have been given to the alternative of enlarging the proportion of the estate which the widow is permitted to enjoy during her lifetime, in lieu of expanding the life estate into a fee simple. A slight change in this delicate field of the already complicated law of real estate, made under the pressure of a well-founded appeal for the extension of woman's rights and possibly with too much consideration for creditors, has, by raising the questions above discussed and many other questions which may not have occurred to the writer, opened up a large field of doubt in the management of estates and in the application of the law of titles, merely to benefit the widow of a thoughtless, fearful, or ignorant husband, without giving any additional rights to the widow who really needs protection against the manipulations of her husband. There is, quite clearly, a large field open for further consideration by our legislature, and many new questions touching the construction of the law of descent as it now stands amended will require judicial settlement. ILLINOIS LAW REVIEW Published monthly except July to October, inclusive, by Nathan William MacChesney, President. $3 PER YEAR Frederic B. Crossley, Secretary and Treasurer PRICE OF THIS NUMBER 50 CENTS Subscribers who wish to discontinue their subscriptions at the end of the subscription period should notify the business office of the REVIEW; otherwise it will be assumed that a continuation of the subscription is desired. Ex-Officio, R. ALLAN STEPHENS, Secretary, Illinois State Bar Association To promote free expression of view on the part of contributors, the Editorial Board, collectively, assumes no responsibility for any statement in the columns of the REVIEW. Each article or communication, including editorial notes, comments on cases, and book reviews, is identified by the name or the initials of the writer. COMMENT ON RECENT CASES CONSTITUTIONAL LAW-FOURTEENTH AMENDMENT-TEACHING OF ENGLISH LANGUAGE IN SCHOOLS.-The unanimous opinion in the case of Meyer v. State of Nebraska 43 Sup. Ct. Rep. 625, furnishes an addition to the comparatively small number of cases in which, in applying the Fourteenth Amendment, the Supreme Court of the United States has overruled the discretion of a state court and of a state legislature. If, however, we concede (and a long array of opinions forces us to concede) the construction of that amendment which gives to the court the power to decide wherein liberty and property really exist as well as to see that the right thereto is not interfered with save by an orderly and established procedure, we cannot but concur in the reasoning of the opinion. which is before us. The statute under consideration provided: "Section 1. No person, individually, or as a teacher, shall in any private, denominational, parochial, or public school, teach any subject to any person in any language than the English language. "Section 2. Languages, other than the English language, may be taught as languages only after a pupil shall have attained and successfully passed the eighth grade as evidenced by a certificate of graduation issued by the county superintendent of the county in which the child resides. "Section 3. Any person who violates any of the provisions of the act shall be deemed guilty of a misdemeanor, etc.” This act was sought to be applied to a parochial school which sought to evade its provisions by holding an extra session between the regular morning and afternoon classes for instruction in the German language. It was attacked on the ground that it interfered with both personal and religious liberty and with the right of parental control. It was maintained that in many localities a knowledge of German was necessary to an understanding of the church services and to religious education at home which a parent who spoke the German language might seek to impart to his children. In sustaining the act, and ignoring the fact that its prohibitions were directed against instruction in the foreign languages by the parent as well as by the school teacher and whether in or out of school hours, the majority opinion of the state Supreme Court held that: "The salutary purpose of the statute is clear. The legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land. The result of that condition was found to be inimical to our own safety. To allow the children of foreigners, who had emigrated here, to be taught from early childhood the language of the country of their parents was to rear them with that language as their mother tongue. It was to educate them so that they must always think in that language, and, as a consequence, naturally inculcate in them the ideas and sentiments foreign to the best interests of this country. The statute, therefore, was intended not only to require that the education of all children be conducted in the English language, but that, until they had grown into that language and until it had become a part of them, they should not in the schools be taught any other language. The obvious purpose of this statute was that the English language should be and become the mother tongue of all children reared in this state. The enactment of such a statute comes reasonably within the police power of the state: Pohl v. State 102 Ohio St. 474, 132 N. E. 20; State v. Bartels 191 Iowa 1060, 181 N. W. 508. "It is suggested that the law is an unwarranted restriction, in that it applies to all citizens of the state and arbitrarily interferes with the rights of citizens who are not of foreign ancestry, and prevents them, without reason, from having their children taught foreign languages in school. That argument is not well taken, for it assumes that every citizen finds himself restrained by the statute. The hours which a child is able to devote to study in the confinement of school are limited. It must have ample time for exercise or play. Its daily capacity for learning is comparatively small. A selection of subjects for its education, therefore, from among the many that might be taught, is obviously necessary. The legislature no doubt had in mind the practical operation of the law. The law affects few citizens, except those of foreign lineage. Other citizens, in their selection of studies, except perhaps in rare instances, have never deemed it of importance to teach their children foreign languages before such children have reached the eighth grade. In the legislative mind, the salutary effect of the statute no doubt outweighed the restriction upon the citizens generally, which, it appears, was a restriction of no real consequence": 107 Ind. 607. In a dissenting opinion, which was concurred in by Chief Justice Morrisey, and which might well have been concurred in by the Supreme Court of the United States, and adopted by it as its own announcement, Mr. Justice Letton conceded the right of the state to absolutely control the curricula of the schools which were supported by public taxation, and the finality of the legislative discretion in relation thereto, and even the right "to place other schools under state supervision, and to require the same general standards." He maintained, however, that it had "no right to prevent parents from bestowing upon their children a full measure of education in addition to the state required branches," either at home or in a private school. The opinion of the Supreme Court of the United States was written by Mr. Justice McReynolds. Among other things he said: "The desire of the legislature to foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters is easy to appreciate. Unfortunate experiences during the late war and aversion toward every character of truculent adversaries were certainly enough to quicken that aspiration. But the means adopted, we think, exceed the limitations upon the power of the state and conflict with rights assured to plaintiff in error. The interference is plain enough and no adequate reason there for in time of peace and domestic tranquility has been shown. "The power of the state to compel attendance at some school and to make reasonable regulations for all schools, including a requirement that they shall give instructions in English, is not questioned. Nor has challenge been made of the state's power to prescribe a curriculum for institutions which it supports. Those matters are not within the present controversy. Our concern is with the prohibition approved by the Supreme Court: Adams v. Tanner 244 U. S. 594, 37 Sup. Ct. 662, 61 L. Ed. 1336, L. R. A. 1917F, 1163, Ann. Cas. 1917D, 973, pointed out that mere abuse incident to an occupation ordinarily useful is not enough to justify its abolition, although regulation may be entirely proper. No sudden emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed. We are constrained to conclude that the statute as applied is arbitrary and without reasonable relation to any end within the competency of the state. "As the statute undertakes to interfere only with teaching which involves a modern language, leaving complete freedom as to other matters, there seems no adequate foundation for the suggestion that the purpose was to protect the child's health by limiting his mental activities. It is well known that proficiency in a foreign language seldom comes to one not instructed at an early age, and experience shows that this is not injurious to the health, morals or understanding of the ordinary child." This opinion is not inconsistent with that which was delivered in the case of Berca College v. Kentucky, where, in a state where a general policy of segregation had been established on grounds of public and race welfare and to prevent the intermarriage of white and colored persons and the immorality which the intermingling of the young of the two races so often engenders, it was held that that policy could be enforced even in the case of private schools. The question, however, is still open whether a state legislature can so regulate the curricula of all of its schools, including those which are privately owned, and require so many subjects to be taught to all of its children as a basis for their future citizenship, as to make thorough training in the foreign languages an impossibility without overworking and undermining the health of the students. Could it, for instance, in addition to its now quite common obligatory courses in civics, temperance, hygiene, and similar subjects, extend its requirements in English, and in American and English history which even now in some states consume at least one-third of the time of the students. It would seem, however, that in this the court would apply the rule of reason and would require a reasonable balance to be struck. Mr. Justice McReynolds, at any rate, suggests that— "Liberty may not be interfered with under the guise of protecting the public interest by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive, but is subject to supervision by the courts." A. A. B. EMINENT DOMAIN-RAILROADS-SWITCH TRACKS.-In Litchfield & Madison R. Co. v. A. & S. R. Ço. 305 Ill. 388, 137 N. E. 248, the question arose if private property from the railroad right of way can be condemned for use as a private switch track or spur, to connect private property with the railroad. In the instant case, the property was the right of way of another railroad that intervened between the railroad to which the connection was desired and the private property. The court held against the right of condemnation upon the ground that thereby property would be condemned for non-public purposes. In this holding, the court is supported by the authorities |