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wrong. The cases free the defendant.1 If the plaintiff innocently. brought about the error and the defendant was negligent, clearly the latter would be liable.2 If both parties are free from fault, the defendant should not be held on the general theory that he is not to blame and the additional point that if he is to blame the plaintiff is equally so. The cases are hardly conclusive. Of course if the injury is continued after discovery of the error the defendant is liable, no matter how much the plaintiff was to blame originally.1 Also, if the defendant is unjustly enriched by his action he must reimburse the plaintiff to that extent, though not liable in tort.5

No doubt some will think it useless to argue against a principle that has such a weight of authority back of it as the one under consideration. It must be admitted that in certain instances the law is settled and that there is a strong tendency to apply the rule used in those cases to others that arise. To such as think it impossible to prevent the spread of the rule, what has been said may at least call attention to the following facts: (a) that it is an anomaly inconsistent with the law as to accident, (b) that while there are individual sets of fact in which it is not applied, yet it spreads throughout the law of torts and is not confined in its operation to cases of injury to property, (c) that the line between absolute liability and liability only for blamableness, so far as it exists, is not drawn between trespass and case or direct and

1 Crawford v. Satchwell, 2 Strange 1218 (1745); but this case and others following it may rest on the ground that the real defendant cannot take advantage of a mis. nomer except by a proper plea; Hills v. Snell, 104 Mass. 173 (1870); Parker v. Walrod, 16 Wend. 514 (N. Y. 1836). Dawson v. Wood, 3 Taun. 256 (1810), in which the language used is broad enough to be contra, is supportable as a case of trespass ab initio, since the officers detained the goods after learning of the mistake. 2 Moore v. Bowman, 47 N. H. 494 (1867).

See Glasspoole v. Young, 9 B. & C. 696 (1829); Fletcher v. Fletcher, 28 L. J. R. (Q. B.) 134 (1859), where the defendants were held; Ryder v. Hathaway, 21 Pick. 298 (Mass., 1838), where the defendant was not held; Chapman v. Cole, 12 Gray 141 (Mass., 1858); Pearson v. Inlow, 20 Mo. 322 (1855); Hays v. Creery, 60 Tex. 445 (1883); Formwalt v. Hylton, 1 S. W. 376 (Tex., 1886).

Dunston v. Patterson, 2 C. B. N. s. 495 (1857); Chapman v. Cole, 12 Gray 141 (Mass., 1858); Hills v. Snell, 104 Mass. 173 (1870), semble; Moore v. Bowman, 47 N. H. 494 (1867); Parker v. Walrod, 16 Wend. 514 (N. Y., 1836), semble.

Pearson v. Inlow, 20 Mo. 322 (1855). The court gave the value of the property taken, probably as measuring the plaintiff's actual loss; but the defendant's enrichment should be the measure of damages. Compare the German law in the case of taking property bona fide but without consideration, ante, p. 347, note 2.

Both Chief Justice Holmes and Sir Frederick Pollock discuss the matter in places already cited as if so limited. Of course its most conspicuous illustrations are found in such cases and in those of ministerial officers erring in the course of their duties.

indirect injury, but between accident and mistake. In the case of accident the theory of culpability is applied; in the case of mistake the defendant is usually held to act at his peril.

LELAND STANFORD JUNIOR UNIVERSITY.

Clarke Butler Whittier.

1 Statements that as to trespasses and nuisances want of care is immaterial are essentially misleading. One is ordinarily not liable for injuries to realty unless negligent, ante, p. 347, n. 3. That only direct injuries to realty are called trespasses, and that these are usually intentional by no means shows that one is liable for accidental trespasses or nuisances. Cf. Jaggard, Torts, 747.

PUBLIC SERVICE COMPANY RATES AND THE FOURTEENTH AMENDMENT. II.

III.

F the enforcement of any state law or administrative order estab

tional rights of any person or corporation secured by the Fourteenth Amendment, then the only effective and probably the only permissible remedy is by bill in equity against the board or commission that made the order and against the state officials charged with its enforcement.

The elementary and underlying ground of equity jurisdiction from which the special jurisdiction in this class of cases has been developed is the absence of any plain, adequate, and complete remedy at law for the invasion of a clear legal right.1

It is clear that no remedy afforded by the common law can be "complete, practical, or efficient" in the class of cases with which we are dealing.

It has been customary in some of the Western states to give in the statute establishing or authorizing the establishment of railroad rates actions at law to shippers for damages and penalties against railroads in respect of each refusal to accept or to transport goods at the statutory rate. Thus the transactions of a single day may give rise to a thousand suits. And the same result would follow even in the absence of such special statutory grants of actions. Again, it is common knowledge that the only practical way for a gas, water, transportation, or similar company to collect its bills is

1 Bispham, Equity, 6th ed., 26, 533, 553; Boyce's Ex. v. Grundy, 3 Pet. 210; Watson v. Sutherland, 5 Wall. 74; Allen v. B. & O. R. R., 114 U. S. 311, 316; Kilbourn v. Sunderland, 130 U. S. 505, 514, 515; Gormley v. Clark, 134 U. S. 338, 339. The fact that the complainant in equity may have a legal action to redress the wrong, or a legal defence to the respondent's threatened action, is not of itself sufficient to render the complainant's legal remedy, whether by action or defence, either adequate or complete. Boyce's Ex. v. Grundy, 3 Pet. 210; Insurance Co. v. Bailey, 13 Wall. 616, 621; St. Louis, etc., v. Indianapolis, etc., Ry., 9 Bliss 99; Gormley v. Clark, 134 U. S. 338, 349; Kilbourn v. Sunderland, 130 U. S. 505, 514; Tyler v. Savage, 143 U. S. 79, 95; Walla Walla v. Walla Walla Water Co., 172 U. S. 1. As stated by the court in the Walla Walla case, 172 U. S. at p. 12, in order to defeat the jurisdiction of a court in equity, the remedy at law must be as "complete, practical, and efficient as the remedy in equity."

to see that they are paid either in cash at the time the service is rendered (as in the case of transportation and telegraph companies) or from month to month (as in the case of gas and water companies). To let them run on, pending litigation, would be to lose a large part of them altogether. The prompt collection of current bills is an essential condition of the successful prosecution of such a business as that of furnishing gas, water, and similar commodities. After the consumer has moved, collection is, in many cases, impossible; and to postpone the payment of hundreds or thousands of such bills until the termination of the several law suits respecting them would thus necessarily result in certain loss to the company, even if the final decision should be favorable to it. And, besides the multiplicity of suits which would arise, and the consequent irreparable damage to the complainant through impossibility of collection, there is no certainty that the result of a jury trial would be the same in all the cases. The company might be successful in some and lose in others. To resort to the expedient of shutting off the supply (as in the case of gas or electricity) if the consumers refuse to pay the company's price, would not improve the situation; for the result would be an equal number of law suits in which the company would be defendant instead of plaintiff, and a heavy loss in consumption. Thus in every such case the legal remedy appears to produce a multiplicity of suits, or irreparable damage, and generally both.2

It is, however, when we consider the nature of the only way in which the invalidity of a schedule of rates can be made to appear that the inadequacy and impracticability of all legal remedies become most striking. There can rarely if ever be anything in the language or on the face of a statute or administrative order establishing a schedule of rates from which it can be seen that the rates are unreasonably low or that anybody's constitutional rights will be violated by its enforcement. It is only in the application of the schedule to particular cases and from facts outside the law and

1 It hardly needs to be said that the avoidance of a multiplicity of suits is a valid reason for resorting to a court of equity, in which the issue can be litigated and disposed of once for all. 1 Foster's Federal Practice, sect. 209; Union Pacific R. R. v. Cheyenne, 113 U. S. 516; Pollock v. Farmers' L. & T. Co., 157 U. S. 429; Cruikshank v. Bidwell, 176 U. S. 73; Ogden City v. Armstrong, 168 U. S. 224; Smyth v. Ames, 169 U. S. 466; Sanford v. Poe, 16 C. C. A. 305; Taylor v. Louisville & N. R. R., 31 C. C. A. 537.

2 For a case to restrain the collection of an alleged unconstitutional tax, where there was federal jurisdiction but no equity jurisdiction because the remedy at law was adequate, see Shelton v. Platt, 139 U. S. 591.

outside the schedule that the violation of the Fourteenth Amendment can be made to appear. And those facts are of a kind to be established mainly by the testimony of experts and the most careful, complicated, and elaborate investigation of a mass of data generally technical and difficult to understand. The ends of justice and of public policy would not be served by permitting evidence of this character to be submitted to juries in one suit or many suits. Moreover, the state officials charged with the direct enforcement against the company of the statute or order would not respect and could not be expected to regard such judgments as morally or legally binding upon them in cases to which they were not parties and could not offer the evidence favorable to the constitutional validity of the statute or order.

It is such considerations as these that have led to several intimations by the courts that statutes and administrative orders establishing rates are prima facie valid and cannot be attacked in proceedings to which the officials who made them and those charged with their enforcement are not parties. If this is true, then there is no longer any question of the inadequacy or incompleteness of the legal remedy, for there is no legal remedy at all1 as between the company and its customers.

For these several reasons—either because a bill in equity is the only remedy open to the complainant, or because to confine the complainant to its remedy at law would be to work irreparable damage to it, or would lead to a multiplicity of suits it is well settled that a public service corporation can resort to a court of equity to test the validity under the Fourteenth Amendment of an act or order of a state legislature or its agents fixing the price of the commodities in which it deals or the charge for the service it renders, and that upon motion supported by satisfactory affidavits (accompanied, generally, by a bond) the enforcement of the order will be enjoined pendente lite.

I. THE SUPREME COURT Cases.

Of the six cases in the United States Supreme Court in which a state rate has been declared invalid, three 2 were proceedings, either by bill in equity, or by petition for a writ of mandamus by

1 Chicago, etc., R. R. Co. v. Minnesota, 134 U. S. 418, 460; Covington Turnpike Co. v. Sanford, 164 U. S. 578; Lake Shore, etc., R. R. Co. v. Smith, 173 U. S. 684; Haverhill Gas Light Co. v. Barker et al., 109 Fed. Rep. 694.

2 Chicago, M. & St. Paul R. R. v. Minnesota, 134 U. S. 418; Covington Turnpike Co. v. Sanford, 164 U. S. 578; Lake Shore & M. S. R. R. v. Smith, 173 U. S. 684.

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