can destroy them-if it pleases-taking from them at its pleasure the local self-government it has temporarily allowed. The other is that towns and cities are endowed with a certain limited sovereign power over their own local affairs, free from the control or interference of the State. Mr. Eaton declares that the problem which this conflict in theory presents is too difficult and complicated for solution "unless we go back to the beginning of Municipal Incorporation in England and ascertain the principles on which it rests." He accordingly goes back to the beginning. His conclusion of the matter is that the right to local self-government was and remains still a fundamental Anglo-Saxon right, and was brought to this country by the first settlers. "The rights of municipal corporations, therefore, are not subject to the uncontrolled and uncontrollable will of the legislature any more than are other fundamental AngloSaxon rights, and local self-government itself cannot be interfered with by the legislature, even if the State constitution be silent on the subject, reserving always to the legislature power over all general legislation and power to mould the exercise of town power when requested by a town itself."

We find no reference in Mr. Eaton's learned paper to the case of State v. Williams, 68 Conn. 131. This oversight is noticeable, as he has noted the cases elsewhere decided, which support the same theory as to the right of the legislature to take from the towns their rights and privileges. That case is also noteworthy because of the very able dissenting opinion which the late Chief Justice Andrews delivered and which strongly supports Mr. Eaton's contention. In the course of the opinion of the court, which was written by Judge Baldwin, it is said of the Constitution of Connecticut:

It

"It secured to these territorial sub-divisions (towns and counties) of the State certain political privileges in perpetuity. * ** secured them because it granted them; not because they previously existed. Towns have no inherent rights. They have always been the mere creatures of the Colony or the State, with such functions and such only as were conceded or recognized by law."

Mr. Eaton, we think, is somewhat unnecessarily severe in his criticism of the Supreme Court of the United States. He quotes the dictum of that court in Bloomfield v. Charter Oak Bank, 121 U. S. 121 (1887), in which the court said:

"Towns in Connecticut, as in the other New England States, differ from trading companies, or even from municipal corporations elsewhere. They are territorial corporations, into which the State is divided by the legislature from time to time, for political purposes and the convenient administration of government; they have those powers only, which have been expressly conferred upon them by statute, or which are necessary for conducting municipal affairs; and all the inhabitants of the town are members of the quasi corporation."

To this Mr. Eaton replies:

"Imagine the amazement of a Rhode Islander upon being told that all the inhabitants of a town are members of it! Of course it is not intended to deny that some towns have originated through action of the legislature-examples are given in the articles referred to. But as a general statement of the origin and powers of towns in New England the opinion is manifestly incorrect, and could only have been written by one either ignorant of the facts, or reasoning incorrectly from them. It is difficult to continue to retain the respect for the Supreme Court of the United States it should always command, when we find it so constantly indulging in dicta, and in incorrect generalities foreign to the case before the court."

While we cannot sympathise with this rebuke of the Supreme Court, we concede that there are strong reasons in support of the theory which Mr. Eaton ably advocates. H. W. R.

CONTRACTS LIMITING THE LIABILITY OF CARRIERS FOR NEGLIGENT

INJURY TO FREE PASSENGERS.

Recent cases decided in Virginia and in the District of Columbia afford an illustration of the direct conflict of opinion and authority which exists among the courts of the various States in regard to the validity of the well-known stipulation made by carriers of passengers for exemption from liability for the negligence of their servants, as a condition of gratuitous carriage. In N. & W. R. Co. v. Tanner, 41 S. E. 721 (Va.), such a stipulation is held to have no validity, even in the case of a strictly "free pass." The Court of Appeals of the District of Columbia, in Boering v. The Chesapeake Beach Ry. Co., decided Nov. 5, 1902, arrives at the opposite conclusion. Each decision is supported by authorities of weight and number, although an examination of them fails to disclose (what both these cases and others, and text writers as well seem to assume), that the Virginia view is that of the majority. It does, indeed, follow the courts of Pennsylvania, Iowa, Minnesota, Mississippi, Texas and Alabama. But on the other side are New York, Massachusetts, Maine, Connecticut, New Jersey, Georgia, Wisconsin, Indiana, Washington and (except for gross negligence) Illinois. Viewed from an international standpoint, the assumption is still less warranted, since England, Canada, Germany, France and Italy allow validity to these agreements. Quimby v. B. & Me. R. Co., 150 Mass. 365, and Griswold v. N. Y. & N. E. R. Co., 53 Conn. 371, may be cited as forcible statements of this view, while Jacobus v. St. P. & C. R. Co., 20 Minn. 125, well illustrates the contrary authorities.

The conflict of authority is less extensive than some of the cases would at first seem to indicate. There has often been a failure to limit the decision to the exact facts before the court. Thus many of the cases cited as denying the validity of exemptions in a free pass, involved, in point of fact, passes that were not gratuitous, as in the "Drover's Pass" cases. In others, although the passenger

paid no consideration, he was riding by the carrier's consent or invitation, without any stipulation whatever about liability. These distinctions indicate the limits within which the courts of this country, with fair unanimity, take common ground. 1. If the carriage is for hire, in any sense of that word, no stipulation for exemption from liability for its own or its servants' negligence can avail the carrier. 2. Where, in the absence of any stipulation, the carriage is gratuitous, under circumstances not constituting the person carried a trespasser (e. g., with the consent or by the invitation of the carrier), his position is that of a passenger, and the carrier's liability attaches as of course, just as in the case of other passengers. In both classes of cases the carrier is acting in its capacity as a carrier, and the instances of each are exceedingly numerous. Therefore, both a logical deduction from the ordinary principles governing common carriers of passengers, and the very practical danger which would menace the public if carriers could in any proportionable number of cases protect themselves from responsibility for their negligence or that of their servants, unite in demanding that in these cases attempted exemptions be held of no effect.

But to the case of a free passenger who has made an express agreement relieving the carrier of liability, a discussion of the rights and liabilities of a public carrier does not apply, nor does any practical possibility of less vigilant management as a result of exemption endanger the public safety, and so violate public policy. For a common carrier of passengers is one who carries for hire, and who is obliged to carry whoever presents himself, under reasonable regulations, and for a reasonable compensation. It is true that where the carriage is for hire the duty to carry safely (which we have seen cannot be abdicated), does not arise from mere privity of contract. But it must be remembered that it does rest upon a duty to carry, whereas there is no duty at all to carry gratuitously. The carrier is not dictating harsh and unreasonable terms as a condition of doing what it is legally bound to do on reasonable terms. A railroad company does not solicit persons to make gratuitous use of its conveyances; the solicitation is wholly from the other side. And when it yields to the importunity of one who would be carried free, it puts off its character of public carrier, and with it the liability of public carriers. It should be free to impose what conditions it will, before consenting to do that which it is under no obligation, legal or moral, to do at all.

In considering the relation of public policy to the class of contracts under discussion, it is admitted that whatever has an obvious tendency to encourage negligence in the performance of the carrier's public duties cannot be tolerated. But that these contracts have any such tendency is denied. Looking at the matter in a practical way (for the law is a practical science), it is a fair conclusion from the fact that carriers do business for gain and not from altruistic considerations, that the proportion of strictly free passengers to the whole number carried on any given train or other means of conveyance, may be expected to be exceedingly small. And this con

clusion the facts support. It would be absurd to suppose that railroad officials would be so cager to enjoy their exemption as to one or two or a dozen free passengers, that they would consciously incur a vastly heavier liability in the case of the hundred or hundreds who pay. Here, too, experience has shown no relaxation of vigilance where the exemption has been upheld. When, therefore, as a condition of gratuitous carriage, one contracts with a passenger carrier to take upon one's self all risks, the consideration of public policy affords no true ground for refusing to enforce the contract. Indeed, a sound public policy would rather hold to their agreement parties who contract upon terms of perfect equality, and would maintain, as a vital principle of modern business life, freedom of

contract.

EXPRESS PACKAGES OF LIQUORS, C. O. D., AND THE ORIGINAL PACKAGE DOCTRINE.

The rapidly developing practice of ordering intoxicating liquors sent C. O. D. through express companies, amounting to an abuse of the right of a consumer to purchase commodities in a foreign State and to receive same in the original package, has received a decisive check in the Supreme Court of Iowa.

In the late case of State v. American Express Co. et al., 92 N. W. 66, the court held that C. O. D. shipments were not protected by the commerce clause of the federal constitution; that the express company was the agent of the liquor seller for the transfer of title to the goods; that its act in making collection of bill therefor was unlawful under the prohibitory law; that in collecting the purchase price for vendors the transportation company was in fact selling liquors at retail, and that the "Original Package" doctrine in such cases does not apply.

On the doctrine thus laid down the court also in the case of Latta v. U. S. Express Co., 92 N. W. 68, ordered the abatement as a nuisance of the building wherein the express company conducted C. O. D. business in intoxicating liquors.

A point raised was "whether a C. O. D. transaction should be deemed an absolute sale on the part of the vendor, with a provision for withholding delivery until actual payment, so as to preserve a lien for the price, or as an executory contract of sale which is not completed until actual delivery to the buyer." The court relied on the parallel case of State v. U. S. Express Co., 70 Iowa 271, wherein. it was held that liquors so transported were the property of the consignors, and that the company was the agent of the shipper; and upon O'Neil v. Vermont, 144 U. S. 323, a similar case wherein a judgment of conviction against an agent connected with the sale was affirmed. The decision of Rhodes v. Iowa, 170 U. S. 412, the court said, did not militate against the conclusion. Rhodes v. Iowa is a leading case, which arose under the Wilson Original Package Act (26 Stat. L. 313), wherein the United States Supreme Court held that a box of liquors while in transit within the State from a

point without, before arrival and delivery, is protected against the State's power to condemn it, being interstate commerce.

The Iowa mulct liquor law and anti-cigarette acts (see Iowa v. McGregor, 76 Fed. 956, and McGregor v. Cone, 104 Iowa 465; also Lawrie v. Tennessee, 82 Fed. 615, and Austin v. State, IOI Tenn. 563), being the parents of the Original Package cases, it would seem that the effect of these Express Company cases would be far reaching and practically final.

It was also lately decided in Iowa, State v. Hanaphy, 90 N. W. 601, that the law prohibiting a traveling salesman from soliciting or accepting orders to be filled by a foreign liquor house, the goods to be shipped C. O. D., was not within the scope of the Wilson Act and unconstitutional as infringing upon interstate commerce.

The lines are thus gradually being re-established in 'prohibition' States after the upheaval a few years ago caused by the Original Package decisions.

STATE ANTI-TRUST LEGISLATION.

The States are experiencing not a little difficulty with their anti-trust laws. While they unquestionably can, under their police power, pass laws against combinations for the purpose of monopoly and restraint of competition, still they have found it troublesome to determine just where to stop. On the one hand they can not make their laws so broad as to be oppressive and in violation of the freedom of contract guaranteed by the Constitution; on the other, they can not make them so narrow that they operate upon certain classes and exclude from their operation certain others, thus becoming discriminatory in violation of the Fourteenth Amendment. The tendency on the part of most of the State anti-trust laws thus far passed, is to exempt from their operation certain lines of trade and commerce peculiar to the particular locality. This tendency has proved fatal to the anti-trust laws of Texas, Nebraska and Illinois, which have all been declared unconstitutional substantially on the ground that they were discriminatory. Texas made an exemption in favor of the original producer or raiser of agricultural products or live stock; Nebraska undertook to exempt assemblies or associations of laboring men; and Illinois made its law not to apply to agricultural products and live stock in the hands of the raiser. In re Grice, 79 Fed. 627; Ins. Co. v. Cornell, 110 Fed. 816; Connolly v. Union Sewer Pipe Co., 22 Sup. Ct. 431.

The Supreme Court of Kansas has lately, by a divided court, decided the anti-trust law of Kansas, passed in 1897, to be constitutional. This law is different from the three mentioned above, in that it makes no exception in favor of any specific kind of commerce. Hence the question as to whether it is constitutional or not depends upon whether or not it is too broad In other words-whether or no it does not itself unreasonably restrain trade and violate freedom of contract. In deciding this the court had no starting point save that it is unquestionably within the power of