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of a court of equity. On the other hand, it is conceivable that a court of equity might, in its discretion, deny this relief, as the sacrifice involved in the sale of a contingent interest may be unconscionable. 25

VALUATION OF WATER RIGHT AND FRANCHISE AS BASIS FOR DETERMINING IRRIGATION RATES. The law is now settled by decision, or by statute that a company engaged in distributing water for irrigation is in the public service. Not only must it supply all who apply properly, but the rates must be reasonable and are subject to public regulation. The basis generally approved for determining the rates is a fair return on the present value of the property used in the business." A recent case decides that water rights are rights of the consumer attached to his land and not property upon which the irrigation company is entitled to an income, but that the company's franchise is to be valued as a basis for returns. San Joaquin &Kings River Canal & Irrigation Co. v. County of Stanislaus, Circ. Ct., N. D. Cal. The case involves the western doctrine of prior appropriation, under which the first taker of water obtains a vested right in it. Appropriation by an irrigation company not owning land has led to conflicting theories regarding the basis of the right. The weight of authority is that the user is the appropriator, and the company, though in the public service, is the agent of the landowner.? Such reasoning is unsatisfactory. The requisites for appropriation being diversion, and application to a beneficial use within a reasonable time, it would seem that the company which diverts the water and applies it to lands other than its own meets the requirements. The company may change the point of diversion, the place of use, and may sell the right apart from the land.' The water right is a property. right,10 but the fiction that it belongs to the consumer need not be resorted to in order to reach the conclusion of the court in the principal case. Whatever theory be taken, the right is not one upon which a return would be justified. Undoubtedly it depends upon the consumer for its continuance; " so to charge for it is to charge for doing what the consumer allows; it is to require payment for the very right on which

25 In Jacob, Jr. o. Howard, supra, the decree was, that only a small portion of the estate be sold, as a sacrifice was to be avoided, if possible. The Massachusetts court has allowed equitable execution on a remainder subject to a single contingency, but refused to do so as to an interest subject to a double contingency. Clarke v. Fay, 205 Mass. 228, 91 N. E. 328. In Howbert v. Cauthorn, supra, the court said, “It would be a speculative transaction, and ruinous in its consequences, not only to creditors, but to all parties interested.”

1 Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 17 Sup. Ct. 56. ? See, for example, CAL. STAT., 1885, 95. 3 San Diego Land & Town Co. v. Sharp, 97 Fed. 394. · Salt River Valley Canal Co. v. Nelssen, 10 Ariz. 9, 85 Pac. 117. • San Diego Land & Town Co. v. National City, 174 U. S. 739, 19 Sup. Ct. 804. 6 Atchison v. Peterson, 20 Wall. (U. S.) 507. ? Gould v. Maricopa Canal Co., 8 Ariz. 429, 76 Pac. 598.

See Combs v. Agricultural Ditch Co., 17 Colo. 146, 28 Pac. 966, 967. • Strickler o. City of Colorado Springs, 16 Colo. 61, 26 Pac. 313. 10 See Cash o. Thornton, 3 Colo. App. 475, 34 Pac. 268, 269. 11 New Merger Ditch Co. v. Armstrong, 21 Colo. 357, 40 Pac. 989.

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the ability to do business is predicated. To allow a street railway to charge for its right to use its tracks would be as permissible. Attempts by irrigation companies to collect for water rights in addition to the fee for distributing have been held invalid.12 If such charges could not be made, certainly a valuation of such water right could not be added to the value of the property to increase the rates. Of course where the company has paid for the acquisition of water rights, a different result should follow

On principle, the value of a franchise should not be a basis for determining rates. A franchise has value only in proportion to its capacity to earn profits; it increases in value with the earnings. If a high rate would be justified on account of the great value of the franchise, this fact would in turn enhance the value of the franchise itself and justify a still higher charge.13 The principal case is the first square decision on this point, but seems opposed to previous judicial intimations.14 There is a clear distinction between allowing for the value of a franchise where a plant is sold or taken by eminent domain, and allowing for it as a basis of rates. All courts allow for it in the former case,15 as well as where the company has paid for the franchise.16 A franchise has value for such purposes, but a company continuing in business would hardly add its value to the capital stock in estimating the annual income on its property.If the value of the water right cannot be counted because that allows a charge for a value really contributed the consumer, it seems inconsistent to allow for the franchise, really contributed by the public.

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INTERPLEADER IN Tax CASES. - In New York a taxpayer who is about to be forced to pay taxes assessed on the same property in two towns may maintain a bill of interpleader against the towns or their tax collectors. Such a bill is not allowed in Rhode Island 2 nor in Massachusetts. A recent Massachusetts case gives two reasons for denying the relief. Welch v. City of Boston, 94 N. E. 271 (Mass.). The first is that the requirements for a bill of interpleader are not satisfied, in that there is no "privity” between the claimants, and that, as the amount of the taxes is different, the plaintiff is not impartial. These objections are merely technical.4 The substantial reason given is that the relief would require

12 Wheeler v. Northern Colorado Irrigating Co., 10 Colo. 582, 17 Pac. 487; San Diego Land & Town Co. v. National City, supra.

13 ° See WYMAN, PUBLIC SERVICE CORPORATIONS, $ 1104.

14 See Brunswick & Topsham Water District o. Maine Water Co., 99 Me. 371, 375380, 59 Atl. 537, 538-541. The United States Supreme Court has held that a company is entitled to an income on the amount actually paid for a franchise, but not upon the amount which that franchise has since increased in value. Willcox v. Consolidated Gas Co., 212 U. S. 19, 29 Sup. Ct. 192.

16 Brunswick & Topsham Water District o. Maine Water Co., supra. 16 Willcox v. Consolidated Gas Co., supra. 17 Cf. Cedar Rapids Water Co. o. Cedar Rapids, 118 Ia. 234, 263, 91 N. W. 1081, 1091. 1 Thompson v. Ebbet, Hopk. Ch. (N. Y.) 272; Dorn o. Fox, 61 N. Y. 264. 2 Greene v. Mumford, 4 R. I. 313. • Macy v. Inhabitants of Nantucket, 121 Mass. 351. • See 17 Harv. L. REV. 489; 22 id. 294.

delaying the collection of taxes by injunction which is contrary to public policy.

The conflict between this principle of public policy and the desire of courts of equity to give adequate relief to the individual has caused a state of great confusion in the authorities. Three different points of view may be distinguished. 1. Some courts, in direct contradiction to the policy announced in the Massachusetts case, consider that the mere illegality of a tax gives the taxpayer a positive equity to enjoin its collection, even when the law gives an adequate remedy by a suit to recover the money if paid under an illegal tax. 2. In many jurisdictions the courts, while professing to believe that, as a general rule, it is against public policy to enjoin the collection of taxes, do not allow that policy to interfere with the established jurisdiction of equity; but only allow it to prevent an extension of jurisdiction to all cases of illegal taxes. If the jurisdiction is invoked to remove a cloud on title, to prevent multiplicity of actions, or to avoid irreparable injury, these courts will restrain the collection of illegal taxes. 3. There are many states whose courts take firm ground that public policy demands that equity should endeavor not to clog the wheels of government with injunctions. The prevention of multiplicity of suits is not a sufficient ground for enjoining the enforcement of a tax in these jurisdictions,10 and injunctions to remove a cloud on title caused by an illegal tax are given sparingly.il But the rule against enjoining the collection of taxes is seldom applied with perfect uniformity in the states that acknowledge its force. Such an injunction is sometimes allowed simply because of the hardship of a particular case. Thus it seems that the policy of non-interference with taxes is treated, where it is recognized, not as an overriding doctrine cutting through equity jurisdiction,13 but rather as a consideration against granting injunctive relief to be weighed in each case.14

Should the consideration of policy outweigh the hardship of denying the plaintiff relief in the case of interpleader? Dismissal of a bill of interpleader involves no unbearable hardship on anyone. It is a weaker case on the ground of public policy for equity jurisdiction than a bill of peace,15 for a multiplicity of suits is likely to cause inconvenience to the state. It is curious that in New York, where judicial interference with taxes is usually discountenanced, 16 a bill of interpleader should be allowed in tax cases.17 The Massachusetts court, which is one of the firmest adherents of the principle of not interfering with the collection of taxes, and has denied an injunction in a case involving multiplicity of suits,18 is amply justified in allowing public policy to override the jurisdiction of equity in the case of interpleader.

5 Shenandoah Valley R. Co. o. Supervisors of Clarke County, 78 Va. 269. See Allwood 0. Cowen, 111 Ill. 481, 486. A few legislatures also have passed statutes to this effect. GEN. CODE OF OH., 1910, $ 12,075; KAN. GEN. STAT., 1909, $ 5859.

6 Dows v. Chicago, 11 Wall. (U. S.) 108; Indiana Mfg. Co. o. Koehne, 188 U. S. 681, 23 Sup. Ct. 452.

? See Wilson o. Lambert, 168 U. S. 611, 612, 18 Sup. Ct. 217. 8 See Raymond v. Chicago Union Traction Co., 207 U. S. 20, 39, 28 Sup. Ct. 7, 14.

• Messeck v. Supervisors of Columbia County, 50 Barb. (N. Y.) 190. There are statutes in a few jurisdictions prohibiting judicial interference with the collection of taxes. U. S. REV. Stat., 1875, 8 3224; NEB. COMP. STAT., 1901, c. 77, art. 1, § 144.

15 Greenwood v. MacDonald, 183 Mass. 342, 67 N. E. 336; Dodd v. City of Hartford, 25 Conn. 232.

11 New York Life Ins. Co. v. Supervisors of the City of New York, 1 Abb. Prac. (N. Y.) 250.

12 Jackson v. City of New York, 62 N. Y. App. Div. 46, 70 N. Y. Supp. 877.

13 This is the view taken by the younger Pomeroy. i POMEROY, EQUITY JURISPRUDENCE, 3 ed., $ 270.

14 The fact that a court is giving weight to this consideration of policy is often shown by a tendency to adhere strictly, in tax cases, to the ancient limitations of equity jurisdiction. See Dodd v. City of Hartford, supra; New York Life Ins. Co. o. Supervisors of the City of New York, supra.

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CONSTITUTIONALITY OF DISCRIMINATIONS ON THE PARTY-COLUMN FORM OF BALLOT. – A recent case held unconstitutional an amendment of the New York Election Law 2 providing that “if any person shall have been nominated by more than one political party. for the same office, his name shall be printed but once upon the ballot”; and in the party column where his name is not printed shall be printed “see

column";3 and that to vote a "straight ticket” on such party column a mark shall be placed not only at the head of the column but also opposite the place where such candidate's name is actually printed. In the Matter of Hopper, 46 N. Y. L. J. 221 (N. Y. Ct. App., Oct., 1911)."

The New York Constitution provides that every male citizen of twenty-one shall vote at all elections; that no one shall be disfranchised;? and that elections “shall be by ballot or by such other method as may be prescribed by law provided that secrecy in voting be preserved.” 8 But there is no provision that all elections shall be “free and equal.' The New York Court of Appeals, however, based their decision on the ground that such a provision could be implied, and that this law infringed this constitutional right of the electors. The court reasoned that

15 This view is taken in Rhode Island. Compare the case cited in note 2 with McTwiggan v. Hunter, 18 R. I. 776, 30 Atl. 851.

16 Merchants National Bank o. Mayor of New York, 172 N. Y. 35, 64 N. E. 756. 17 See note 1, supra.

18 See note 1o, supra. 1 Three types of the Australian ballot seem to be in use in the United States: the so-called Massachusetts form on which the names of the candidates for an office are placed under the name of the office, followed by a designation of the party or parties by which the candidate is nominated, cf. Sawin o. Pease, 6 Wyo. 91, 42 Pac. 750; the “party-column" form, in use in New York; and a hybrid form, like that used in Colorado. Colo. Rev. Stat., 1908, 88 2235, 2236. A ballot similar to the last was declared unconstitutional in California. Eaton v. Brown, 96 Cal. 371, 31 Pac. 250.

? N. Y. LAWS OF I,II, C. 649, 8 33I.

3 This regulation could hardly be defended on the ground that it saved printing or space on the ballot.

• The Supreme Court, Special Term, held the law to be unconstitutional. 45 N. Y. L. J. 2401. The Appellate Division reversed this decision. 46 N. Y. L. J. 1. This was in turn reversed by the Court of Appeals.

6 Cf. Murphy v. Curry, 137 Cal. 479, 70 Pac. 461. But cf. State ex rel. Runge v. Anderson, 100 Wis. 523, 76 N. W. 482; State ex rel. Bateman v. Bode, 55 Oh. St. 224, 45 N. E. 195; Todd v. Board of Election Commissioners, 104 Mich. 474, 62 N. W. 564, 64 N. W. 496. Since the constitutional provisions as well as the statutes are dissimilar, the cases are not exactly in point. 6 N. Y. Const., Art. II, § 1.

7 N. Y. Const., Art. I, § 1. 8 N. Y. Const., Art. II, $ 5.

9 Many state constitutions so provide. See Pa. Const., Art. I, § 5; Mass. Bill OF Rights, Part I, § 9; Ill. Const., Art. II, § 18.

there were precedents for implying restrictions into a constitution; 10 that the New York Constitution of 1777 had spoken of the “equal freedom of the people” as regards voting; and that therefore under all the circumstances the spirit of the present constitution was that elections should be free and equal.

But a state constitution, unlike the federal Constitution, is not a grant of law-making power, but a restriction on the law-making power of the people through their legislature. And much stronger reasons must exist to justify an implication of a restriction on the law-making power, than are necessary to justify an implied grant of such power. In the light, therefore, of the words of the New York Constitution that elections “shall be by ballot or by such other method as may be prescribed by law provided that secrecy in voting be preserved,” it is difficult to see how the power of the legislature over the rights of electors may be held to be limited by anything except the express constitutional restriction that no male citizen over twenty-one shall be disfranchised and that secret voting be retained.11

It may be suggested, however, that the law is unconstitutional from another point of view; 12 namely, as an impairment of the right of a person to hold office. The New York Constitution, after stating a form of oath for holders of office, provides that "no other oath, declaration or test shall be required as a qualification for any office of public trust.” 13 A recent New York decision held that to prohibit the nomination by one party of a candidate already nominated by another party was unconstitutional.14 The law under discussion in effect provides that, while a candidate already nominated by one party may be nominated by another party, if so nominated he must be voted for by a special mark. This requirement obviously raises a possibility that electors voting straight tickets, for parties in which a particular candidate is named only by a blank, may fail, from forgetfulness or other reason, to vote for that candidate; and, in thus unnecessarily lessening his chances for election, it might be held to infringe his right to be subject to no other test of qualification for public office than that provided by the constitution. 15

10 “Our constitution has never expressly forbidden the taking of private property for private use, but only prescribes that 'private property shall not be taken for public use without compensation. Yet the courts early held that this necessarily excluded the right to take such property for private use, with or without compensation.” Per Cullen, C. J., in the Court of Appeals.

1 See cases cited in note 5. The legislature may restrict representation on the ballot to parties that received a certain percentage of the total vote cast at the last election. State ex rel. Plimmer o. Poston, 58 Oh. St. 620, 51 N. E. 150. But the elector has the power to write the name of a candidate on the ballot. Lamar v. Dillon, 32 Fla. 545, 14 So. 383. Contra, State ex rel. Mize o. McElroy, 44 La. Ann. 796, 11 So. 133. Under the Massachusetts form the printing of a candidate's name more than once may be forbidden. State ex rel. Sturdevant v. Allen, 43 Neb. 651, 62 N. W. 35. But a statute that actually disfranchises constitutionally qualified electors under the guise of regulation is void. Monroe o. Collins, 17 Oh. St. 665. It can hardly be maintained that the statute in the principal case has this effect.

12 This view was expressed in the dissenting opinion to the judgment of the Appellate Division that the law is constitutional.

13 N. Y. CONST., Art. XIII, § 1.
14 In the Matter of Callahan, 200 N. Y. 59, 93 N. E. 262.
15 Cf. Dapper v. Smith, 138 Mich. 104, 101 N. W. 60.

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