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witnesses who testified that they voted for M., when in fact only 84 M. ballots were found in the box, as against 123 P. ballots. If these witnesses were admissible and credible, the result was clear.

The opinion distinguishes Beardstown v. Virginia (1875) 76 Ill. 34, where the voter's testimony that he intended to vote the contrary of what his ballot showed was held inadmissible. It accepted, instead, as applicable, the rule of Kreits v. Behrensmeyer (1888) 125 111. 141, 177, 17 N. E. 232, where the voter's testimony is that he cast a ballot of a certain tenor, and where the ballot as later found in the box is of a different tenor, showing that there has been a fraudulent substitution; this testimony being allowable. The opinion also refers, in passing, to two other questions of evidence-law about ballots.

In fact, there are four separate questions possible, two of them closely related, the others totally distinct. It may aid in future cases if we here summarize and distinguish them:

1. a and b: The Parol Evidence rule. The Parol Evidence rule may be applied to ballots, as to other unilateral documents. (a) On the one hand, there is the rule that the document itself is final and conclusive as to its tenor; it is the outward expression of the actor's intent to do an act of a certain tenor, and his private intent to do an act of a different tenor cannot be inquired into (Wigmore on Evidence, $$ 2413, 2421). This is the rule applied in Beardstown v. Virginia, supra. (b) On the other hand, there is the rule that a party charged with a certain written act may always be heard to testify that this particular act was never done by him; e. g., that he never signed or delivered that act, but another one (Wigmore on Evidence, $ 2408). This is the rule applied in Kreits v. Behrensmeyer, supra. In the present case, Metheny v. Pickel, if the ballots found in the box had borne signatures, then the voter thus identified could of course have testified that it was not his signature, i. e., a forgery. In fact, however, the relative numbers of ballots, though bearing no identifying mark, did create just this situation. That is, if 118 persons did offer a printed ballot with M.'s name, and only 84 such ballots were found, then 34 M. ballots must have been destroyed by the election officer and presumably replaced by P. ballots. Had the margin of majority been a small one and the result depended upon the testimony of one or two persons, it might be dangerous to use such testimony (as the opinion points out). But in the present case, perjury by 34 witnesses was unthinkable. And this distinction seems a safe one.

2. The Hearsay Rule about voters' declarations as to disqualification. Where a ballot is alleged to have been cast by an unqualified voter, and his ballot can be identified, can his own extra-judicial statement that he was not a legal voter be admitted ? Here there are several theories (Wigmore on Evidence, $ 1712); but the only question is as to the hearsay nature of the evidence. If the voter takes the stand (but he is privileged not to answer as to the crime of illegal voting), of course his testimony is admissible.

3. The rule about conclusiveness of a Certificate of Election. When an election-return certifies that a certain person was elected, or that a certain person received a particular number of votes, is this conclusive? Or may the ballots themselves be inspected, to overturn the certificate? This involves the principle of conclusiveness of an official certificate (Wigmore on Evidence, $ 1351), and has nothing to do with the other rules—although it is referred to in the opinion in Metheny v. Pickel.

J. H. W.

CONSTITUTIONAL LAW-RULES OF PROPERTY AND THE OBLIGATIONS OF CONTRACTS.-In the case of Tidal Oil Company et al. v. Flanagan 44 S. C. R. 197, Chief Justice Taft seeks to correct what he calls "a persistent error" of counsel in regard to the meaning of Section 1 of Article 1 of the federal Constitution, which protects the obligations of contracts. At the same time he gives to us a perhaps necessary though a somewhat surprising construction of Section 237 of the Judicial Code, as amended by the Act of September 6, 1916, and by the Act of February 17, 1922 (Comp. St. Ann. Supp. 1923, Sec. 1214). We cannot, however, but feel that “the persistent error” has been due to the court's own impossible distinctions and to its tendency to refine when it should overrule, that though this new, much looked for opinion restates, it hardly clarifies, and that the construction of Section 237 of the Judicial Code, as amended, will prove a surprise to the authors of the legislation.

The case arose on a writ of error to the Supreme Court of Oklahoma (not to a federal court). About the year 1909 the Tidal Oil Company obtained a deed to some oil lands from an allottee, a citizen of the Creek Nation, one Robert Marshall, when he was only 14 years of age but married, and after he had been granted majority rights by the district court. This deed he, by his guardian, later sought to have set aside, but a judgment was rendered against him which it is conceded was based upon prior adjudications of the state supreme court as to the power of a minor Indian allottee to divest his title in the manner which had been adopted.

In 1916, after he had reached his majority, the said Marshall gave a quitclaim deed of the properties to J. P. Flanagan, and the said Flanagan brought the present suit to quiet title and for mesne profits. In this suit both the district and supreme courts of the State of Oklahoma gave judgments for the plaintiff Flanagan and against the oil company, and in its opinion the Supreme Court reversed-or rather overruled-its former decisions in similar cases and held that the judgment of the district court in favor of the oil company in the former suit, which was brought by the guardian of the said Marshall to have his deed cancelled, was void and of no effect “because it appeared upon the face of the record that Marshall at the time of the execution of his deed and at the time of said former suit was a minor and that the lands in question were allotted lands of the title to which he could not be divested except in a probate court under procedure required by a state statute and which had not been complied with.”

On the writ of error in the present case the oil company contended that this subsequent judgment deprived it of its property without due process of law, and that in reversing its previous decisions and changing a rule of property upon the faith of which the deed had been made, the state, through its courts, had impaired the obligation of a contract.

This the defendant in error, Flanagan, denied and also claimed that since the writ of error was to a state and not to a federal court the last judgment or construction of the state law by the state supreme court was conclusive upon the federal tribunal, and he no doubt relied upon the opinion in the case of Central Land Company v. Laidley 159 U. S. 396, where in the case of a different construction of a state statute than that which prevailed prior to the making of a deed, the Supreme Court of the United States held that the last construction would control when the writ of error was to a state and not to a federal court.

To this view of the law the oil company not only demurred but cited Section 237 of the Judicial Code, as amended, which provided that:

“In any suit involving the validity of a contract wherein it is claimed that a change in the rule of law or construction of statutes by the highest court of a state applicable to such contract would be repugnant to the Constitution of the United States, the Supreme Court shall, upon writ of error, re-examine, reverse or affirm the final judgment of the highest court of the state in which a decision in the suit could be had, if said claim is made in said court at any time before said final judgment is entered and if the decision is against the claim so made."

No doubt to many the purpose of this statute appeared to have been to avoid the distinction which was made in the case of Central Land Company v. Laidley 159 U. S. 396, and several other decisions, between a writ of error to a state supreme court and one to an inferior federal tribunal, and to announce the rule that in all cases where a contract is claimed to have been impaired by a change in holding or construction in regard to rules of property on the part of the state tribunals, to allow an appeal to the federal Supreme Court. Chief Justice Taft and his associates, however, have thought otherwise, and in their opinion they have announced that this is not the case, but that the intention of Congress was not to add to the general appellate jurisdiction of the Supreme Court of the United States nor to bring about any uniformity of decision, but merely to allow an appeal where a petition for a rehearing had been denied without an opinion, and thus to obviate the result of the general rule that it was “a prerequisite to the consideration of a federal question in a case coming from a state court that the question should have been raised in that court before decision, or that it should have been actually entertained and considered upon petition to rehear," and that a mere denial of the petition by the state court without opinion is not enough.

The opinion in short takes the position that the constitutional provision against the impairment of contracts only applies to a statutory act, or to a changed construction of a statute which was passed after the contract has been made or entered into, when and in such case it is the statute and not the decision which is sought to be avoided; and, such being the case, and the question being one of constitutional power, that Congress could not give to the Supreme Court jurisdiction in the case of the impairment of a contract by a changed judicial construction of a prior statute when it was only against subsequent statutes that the constitutional inhibition was directed.

In the case at bar therefore the Supreme Court of the United States held that as no statute had been passed since the making of the deed in question to the Tidal Oil Company, and all that was involved was a changed judicial construction or holding as to the validity of that deed, the federal court had no jurisdiction of the controversy and that therefore the last decision of the state supreme court must prevail.

The opinion is valuable in that it collects the different cases upon the question. It is unsatisfactory in that it fails to deal satisfactorily with the case of McCullough v. Virginia 172 U. S. 102 and several similar cases which in fact assume jurisdiction, although all that is involved is a change of judicial opinion and which, in the opinion of the writer, can only be justified on the theory that hard cases make poor law. Mr. Justice Taft says that “In each of them the judgment of the state supreme court seemed from its opinion merely to be a reversal of a previous construction by it of a statute upon the faith of which the contract had been made. In fact, however, the judgment merely gave effect to an existing subsequent statute impairing the obligation of the contract which was thus a law passed in violation of Article 1, Section 10.In the case of McCullough v. Virginia, however, the general assembly had authorized the issuance of coupon bonds which were to be receivable in payment of taxes; for a time the validity of the bond issue seems to have been recognized by the courts; later, however, a statute was passed which required the genuineness of the coupons to be established in a court of law before they should be so received. This statute no doubt would have been unconstitutional and would have impaired the obligation of the contract if that had been all there was to the matter. The defense, however, was that the bonds were invalid and that the original statute that had authorized the issuance of the bonds was invalid. How this judgment of invalidity gave effect to "an existing subsequent statute impairing the obligation of a contract” it is difficult to see. The judgment said that there were no bonds. The subsequent existing statute said that the validity of bonds which were offered in payment of taxes should first be tested in the courts. The subsequent statute did not authorize the payment of anything,

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nor did it nor could it destroy anything as a tax-paying medium which at no time was a medium. The real explanation of the case of McCullough v. Virginia is that it was a hard case and that the Supreme Court of the United States was satisfied that Virginia was playing unfairly with its creditors and that Virginia should be made to pay its debts. Why, we ask, did not Mr. Justice Taft admit this fact and save the bar from the confusion of distinctions which do not distinguish?

The basic trouble lay with the case of Gelpke v. Dubuque 1 Wall. 175, in which it was held that, even where there was no subsequent statute, provided the action was first brought in a federal and not a state court, the Supreme Court, on writ of error to the federal tribunal, could ignore the later decisions of a state supreme court and enforce its former but now judicially exploded constructions and rules of property. As long indeed as the two rules prevail and property rights depend upon the tribunal in which the rights are first litigated so long will confusion and dissatisfaction prevail

. Artificial refinements and metaphysical distinctions will not alter the fact that in many instances there is one law for Smith and another for Jones.

A. A. B.

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REAL ESTATE AGENCY AND BROKERAGE AS CORPORATE ACTIVITIES.-Now that the Supreme Court of Illinois has declared in Haberer & Co. v. Smerling 307 III. 191, 138 N. E. 675, that there is a difference (which by the way it does not undertake clearly to define) between a real estate agent and a real estate broker, what will be its conclusion as to the functions of a realtor? It is quite true, as the court observes, that every broker is in a sense an agent, but not every agent is a broker. However, the intimation that a real estate agent may not be a broker may come as a shock to the gentlemen of the realtor profession. Ordinarily the distinction would have very little practical consequences were it not for the anachronism existing in the General Corporation Act of Illinois prohibiting the incorporation of a company for the purpose of doing a real estate brokerage business while providing for the organization of agency loan corporations for the purpose of acting as "agents for others in the purchase, sale, renting, management, etc., of real estate.” The real estate broker, if he is nothing more, is certainly an agent for others in the purchase and sale of real estate. He may be a mere go-between, a bargainer, who brings the buyer and seller together for the purpose of an agreement, while the agent's power may be very much broader, even to the extent of being actually empowered to make the bargain himself on account of his principal. Therefore just why the legislature damned the broker and welcomed the agent is not easy to explain unless the suggestion argued by the plaintiff in the instant case is the correct one, namely: that it was a piece of carelessness or inadvertence. This is a very plausible explanation, for if there is any public interest against a

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