However, since he has taken advantage of one incident of the unit of service it would seem that he could not use the ticket for a later journey. But a passenger should not be required to travel on the same train with the baggage. McKibbin v. Wisconsin Central R. Co., too Minn. 270, 110 N. W. 964; see 20 HARV. L. REV. 647; Larned v. Central R. Co., 81 N. J. L. 571, 79 Atl. 289; Moffat v. Long Island R. Co., 123 N. Y. App. Div. 719, 107 N. Y. Supp. 1113. Although the old view was contra. Collins v. Boston & Maine R., 10 Cush. (Mass.) 506; Wilson v. Grand Trunk Ry., 56 Me. 60. In breaking away from this rule, the principal case, it is submitted, has gone too far. The proper restriction would seem to be that the trip take place within such a space of time after checking the baggage as to indicate that both relate to the same journey. See Southern Ry. Co. v. Dinkins, supra. The reasoning of the principal case, that the plaintiff has purchased two rights with the ticket, cannot be reconciled with the above principles. Also, the court's admission here that the plaintiff must, technically at least, have intended to become a passenger, seems inconsistent with its other reasoning.

CARRIERS - PASSENGERS-FAILURE TO TRANSPORT TO DESTINATION. A passenger on the appellant's train paid his fare to a flag station and notified the conductor of his desire to be set down there. The train stopped about a mile before reaching the station, and upon being directed by the conductor that it was his station, the passenger alighted. The passenger sues for injuries due to his being compelled to walk to his destination. Held, that he may recover without regard to the defendant's negligence. Beaumont, S. L. & W. Ry. Co. v. Bishop, 160 S. W. 975 (Tex. Civ. App.).

The contract of a railroad with a passenger is not as absolute and unconditional as the reasoning of the court in the principal case would indicate. It is not liable for delay in transportation not due to its negligence. Gordon v. Manchester & Lawrence R. Co., 52 N. H. 596; Cormack v. New York, N. H. & H. R. Co., 196 N. Y. 442, 90 N. E. 56; Southern Ry. Co. v. Miller, 129 Ky. 98, IIO S. W. 351. But see Renfro v. Texas C. Ry. Co., 141 S. W. 820 (Tex. Civ. App.). Nor is it absolutely liable for the safety of the passenger. Readhead v. Midland Ry. Co., 2 Q. B. 412, 4 Q. B. 379; Glennen v. Boston Elevated Ry., 207 Mass. 497, 498, 93 N. E. 700, 701. It is bound only to exercise the utmost diligence, consistent with its duties as a common carrier, to transport the passenger promptly and safely to his destination and give him a reasonable opportunity to alight. The passenger must use due diligence to inform himself of the places and times for entering and alighting from trains, and the carrier is under no obligation to inform him personally of his arrival at his destination, or to see that he alights. Southern Ry. Co. v. O'Bryan, 115 Ga. 659, 42 S. E. 42; Southern R. R. Co. v. Kendrick, 40 Miss. 374. Probably by universal practise the railroads have assumed the duty of giving a general announcement of approach to stations. See Southern R. R. Co. v. Kendrick, supra, 385; Southern Ry. Co. v. Hobbs, 118 Ga. 227, 231, 45 S. E. 23, 24. At all events, where the carrier through its authorized agents has undertaken in a particular case to direct the passenger, it will be liable for all delay, expense, or injury proximately resulting from any misdirection. Louisville, N. A. & C. Ry. v. Hosapple, 12 Ind. App. 301, 38 N. E. 1107; Louisville & N. R. R. Co. v. Jenkins, 15 Ky. L. R. 239; Tennessee C. R. Co. v. Brasher's Guardian, 29 Ky. L. R. 1277, 97 S. W. 349.

CONFLICT OF LAWS - RECOGNITION OF FOREIGN JUDGMENT

CITIZENSHIP

AS A GROUND FOR PERSONAL JURISDICTION. — The plaintiff, through service by publication, secured a judgment in a Bavarian court against the defendant, a Bavarian subject, who throughout the proceedings was domiciled in New York. The defendant had filed his intention of becoming a United States citizen, but

the judgment was secured before naturalization. Held, that the foreign judgment is not enforceable. Grubel v. Nassauer, 210 N. Y. 149.

For a discussion of this case and the principles involved, see NOTES, p. 464.

CONSTITUTIONAL LAW - DUE PROCESS OF LAW - RIGHTS UNDER THE FOURTEENTH AMENDMENT. - The defendant was indicted under a statute which provided that whoever should agree to lease any building, knowing, or with good reason to know, that it was intended to be used as a house of illfame, or whoever should, knowingly, or with good reason to know, permit the building to be so used, should be guilty of a misdemeanor. A second statute provided that two convictions in the same house within six months would satisfy the requirement that the house had been so used with the permission of the owner. This was the only evidence of knowledge in the principal case. A writ of habeas corpus is brought to secure the relator's release. Held, that the relator be discharged, the second statute being unconstitutional. People v. Warden of City Prison, 143 N. Y. Supp. 912 (Sup. Ct.).

One who leases a house with knowledge that it is to be used as a disorderly house, or who permits it to be so used, is guilty of a misdemeanor at common law. People v. Erwin, 4 Den. (N. Y.) 129. Contra, Reg. v. Stannard, L. & C. 349. A disorderly house is a common-law nuisance. Price v. State, 96 Ala. 1, II So. 128. Therefore no mens rea need be shown. Reg. v. Stephens, L. R. IQ. B. 702. The element of knowledge is, however, necessary. See State v. Williams, 30 N. J. L. 102, 106. The lessor has to be connected in some way as a principal in the misdemeanor, since mere ownership of the property imposes no responsibility for the nuisance. Schmidt v. Cook, 4 Misc. (Ñ. Y.) 85, 23 N. Y. Supp. 799. The first statute is, except for the punishment provided, declaratory of the common law. The second statute, in terms, precludes the defendant from denying his connection with the crime on the score of knowledge. Such a conclusive presumption has been held unconstitutional. Groesbeck v. Seeley, 13 Mich. 329. More probably the intent was to make knowledge unnecessary. The first statute also gave the owner a right to oust a once-convicted tenant. This puts a duty on him to enforce that right. Failing to do so before a second conviction, he has violated the statute. The maximum penalty provided is a five hundred dollars fine, or one year's imprisonment, or both. PENAL LAW, 1909, § 1937. To punish thus a morally guiltless defendant savors of a deprivation without due process of law. Yet the police power has often been extended equally far in the interest of public health and morals. People v. West, 106 N. Y. 293, 12 N. E. 610; Ford v. State, 85 Md. 465, 37 Atl. 172; Ah Sin v. Wittman, 198 U. S. 500.

CONSTITUTIONAL LAW- PERSONAL RIGHTS, CIVIL, POLITICAL, AND RELIGIOUS - OPERATION TO PREVENT PROCREATION. THE Board of Examiners of Feeble-Minded, Epileptics, Criminals, and other Defectives, to prevent procreation, ordered the operation of salpingectomy on the plaintiff, a woman confined in a charitable institution for epileptics. A statute provided for the asexualization of feeble-minded, epileptics, rapists, certain criminals and other defectives who were confined in state reformatories, charitable, and penal institutions. Held, that the portion of the statute relating to epileptics is unconstitutional because, not applying equally to all epileptics within the state, it does not afford equal protection of the laws. Smith v. Board of Examiners, 88 Atl. 963 (N. J. Sup. Ct.).

Aside from this apparently impregnable position, the opinion contains a strong dictum on the broader ground that statutes of this nature are invalid under the "due process of law" clause as an unreasonable exercise of police power. The case is interesting to compare with State v. Feilen, 126 Pac. 75 (Wash.), discussed in 26 HARV. L. REV. 163. There the question arose under

circumstances most favorable to the right of the state- the operation being vasectomy (the surgical sterilization of a male, relatively a very simple affair), to be performed on a man convicted of a sexual crime- the only constitutional difficulty being the prohibition against "cruel and unusual punishment." Here the operation was a serious one, although the simplest method of asexualizing a woman, and the question is raised as to the suppression of the rights of the individual for the artificial enhancement of the public welfare. Since this New Jersey statute expressly provided that the fact that it is held unconstitutional in regard to a single class shall not invalidate the act as a whole, the court may yet be given an opportunity to express itself on the criminal portion of the statute. Statutes similar to that in the principal case have been enacted in Indiana, Iowa, California, Washington, Connecticut, New York, Utah and Michigan. In Vermont such a bill was vetoed. But they have not been passed upon by the courts except in these two states. For a general discussion of the whole question see 27 Medico-Legal Journal, 134, in which such statutes are advocated; and 4 Journ. Crim. Law, 326, where they are strongly disapproved. See also MOSBY, CRIME, III.

CONSTITUTIONAL LAW - POWER OF EXECUTIVE — PRESERVATION OF NEUTRALITY BY INTERNMENT. Mexican soldiers belonging to the Federalist forces, having been put to flight, crossed the boundary into the United States. They surrendered to the United States army, and by order of the President were disarmed and interned. They now petition for a writ of habeas corpus. Held, that the writ be denied, no provision of the Constitution of the United States having been violated. Ex parte Toscano, 208 Fed. 938 (Dist. Ct., S. D. Cal.). It is clear that aliens fall under the protection of the "due process" clause. Wong Wing v. United States, 163 U. S. 228. By an express provision of the Convention of The Hague, belligerent troops which are received by a neutral power are to be interned. 36 U. S. STAT. AT LARGE, 2324. The principles governing the status of neutrality are old. See 2 WESTLAKE, INT. LAW, 169. They are as necessary a part of sovereignty as the war power, and the federal government from the first has enforced them. The Santissima Trinidad, 1 Brock. (U. S. Circ. Ct.) 478, 488, 496. See I AMER. STATE PAPERS, 69, et seq.; 7 MOORE, DIG. INT. LAW, 1002, et seq.; 8 AMER. JOURN. INT. LAW, 1. The provision of the treaty is merely declaratory. The admittance of foreign troops into the territory is a matter of grace. See The Schooner Exchange v. McFadden, 7 Cranch (U. S.) 116, 139. It is granted under the circumstances of the principal case for reasons of humanity. See HALL, INT. LAW, 625. But having permitted the entrance, the nation could not allow the belligerents to leave without a violation of neutrality. 2 HALLECK, INT. LAW, 173. This internment, as well as the decision whether there is a state of belligerency, properly falls within the executive functions without the interposition of the judiciary. If a crime were charged a judicial trial would be necessary. Wong Wing v. United States, supra, 236. Here, however, such is not the case. There is no violation of the neutrality laws. Thus the case differs from Ex parte Orozco, 201 Fed. 106. See 7 MOORE, DIG. INT. LAW, 1018, et seq. 1026. The jurisdiction of the executive here is based on the exigencies of government. See 27 POL. SC. QUART. 215, 238. The restraint of liberty is necessary, first, to preserve peace internally; second, to prevent the nation from being involved in a foreign war. Liberty may also be restrained by the executive officers acting alone in the analogous case of the detention and exclusion of aliens. See Wong Wing v. United States, supra, 231. See also 22 HARV. L. REV. 221, 360. So, too, by boards of health in passing on questions of quarantine and enforcing their decisions. Valentine v. Englewood, 76 N. J. L. 509, 71 Atl. 344. In the principal case, therefore, there seems to have been a proper exercise of the executive power in the enforcement of a declaratory treaty.

CORPORATIONS REORGANIZATION AND CONSOLIDATION -SALE OF ASSETS UNDER CONSENT DECREE OF COURT-IS VALUE SET BY DECREE BINDING ON SURETIES WHEN CREDITORS TAKE OVER ASSTES. -The creditors of an insolvent corporation, with the knowledge and consent of the surety, took over the assets under a consent decree of court as a step in a plan of reorganization. They formed a new corporation to take the assets and issued paid-up capital stock equal in par value to more than the amount of their claims against the old insolvent corporation. The creditors asserted the right to apply to their claims only the value as set by the decree and to hold the sureties for the balance. Held, that the creditors were estopped by the issue of paidup capital stock to assert that the assets were worth less than the full amount of their claims. Mechanics & Metals Nat. Bank v. Howell, 207 Fed. 973. See NOTES, p. 467.

DOMICILE ACQUIRING OF DOMICILE BY MILITARY MEN - POSSIBILITY OF DOMICILE IN FEDERAL TERRITORY. — The deceased, who had acquired a domicile of choice in New York, became an officer in the regular army, and served in Texas, at Governor's Island, in Chicago, and again at Governor's Island, where his headquarters were at the time of his death. He intended to live in the District of Columbia after leaving Governor's Island. Held, that his residence in federal territory, Governor's Island, coupled with his intention to continue to live in federal territory, the District of Columbia, gave him a domicile of choice in federal territory, so that his estate was not subject to the New York transfer tax. Matter of Grant, 83 N. Y. Misc. 257.

The portions of territory, such as Governor's Island, over which the United States exercises exclusive control, are nevertheless portions of the legal units, the states, in which they lie. The decision therefore seems erroneous. See NOTES, p. 472.

EMINENT DOMAIN — RESTRICTIONS UPON PROPERTY ADJACENT TO PUBLIC PARKS. A Pennsylvania statute conferred upon cities the power to purchase private property within two hundred feet of public parks and parkways, and "to resell... with such restrictions in regard to the use thereof as will fairly insure the protection of such . . . parks their environs, the preservation of the view, appearance, light, air, health, and usefulness." ACT, June 8, 1907 (P. L. 466). In pursuance thereof, the councils of the defendant city passed an ordinance appropriating the plaintiff's property, and authorized its resale to B. subject to restrictions. Held, that the statute is unconstitutional. Pennsylvania Mutual Life Ins. Co. v. City of Philadelphia, 88 Atl. 904 (Pa.) The right of eminent domain may be invoked only for a public use. Embury v. Conner, 3 N. Y. 511; Gaylord v. Sanitary District of Chicago, 204 Ill. 576, 68 N. E. 522. But as to what is a public use the courts are not agreed. One line of decisions makes the phrase synonymous with "general utility," "public advantage or benefit." Olmstead v. Camp, 33 Conn. 532. See Tuttle v. Moore, 3 Ind. Ter. 712, 725, 64 S. W. 585, 591; see 15 HARV. L. REV. 399. Another, and closer, interpretation, and one to which the principal case subscribes, requires that there be a "use or right of use by the public." Matter of the Application of the Eureka Basin Warehouse and Manufacturing Co., 96 N. Y. Arnsperger v. Crawford, 101 Md. 247, 253, 61 Atl. 413, 415. See I LEWIS, EMINENT DOMAIN, 3 ed., § 258. All this is involved in the question which the principal case suggests as to how building restrictions for æsthetic purposes can be imposed upon property surrounding public parks. The simplest method would be to make a direct limitation upon the present owners. Whether this could be justified as an exercise of the police power is at least doubtful. Passaic v. Paterson Bill Posting Co., 72 N. J. L. 285, 62 Atl. 267; People v. Green, 85 N. Y. App. Div. 400, 83 N. Y. Supp. 460. See 20 HARV.

42;

L. REV. 35. But the right to take land by eminent domain includes the taking of a limited interest in property in the nature of an easement. Pacific Postal Telegraph-Cable Co. v. Oregon, etc. R. Co., 163 Fed. 967. See Attorney-General v. Williams, 174 Mass. 476, 55 N. E. 77, 178 Mass. 330, 59 N. E. 812; Williams v. Parker, 188 U. S. 491, 23 Sup. Ct. 440. And this might be under either theory of public use. A second plan would be for the state to purchase and retain the fee of the surrounding property; a third, for the state to resell subject to restrictions. Either of these would be within the broader interpretation of public use. But under the stricter view, there would be the difficulty of proving a sufficient public user beyond mere public advantage. Where the state retains the fee, it might be a close case. But where the right retained is solely in the nature of an easement, the method would be unconstitutional.

EVIDENCE - HEARSAY: IN GENERAL - ADMISSIBILITY OF DECLARATIONS ON QUESTIONS OF IDENTIFICATION. At a trial for murder, in order to identify the defendant as the guilty party, the prosecution offered in evidence a declaration of the victim, in which he pointed out the accused and identified him as the assailant. The statement was not shown to be a dying declaration. Held, that the evidence is admissible. State v. Findling, 144 N. W. 142 (Minn.).

The court assumes a general relaxation of the rules of evidence on questions of identification. In a few respects this appears to be true. Thus the opinion rule does not exclude the opinions of properly informed witnesses concerning the identity of a person. Craig v. State, 171 Ind. 317, 86 N. E. 397; State v. Powers, 130 Mo. 475, 32 S. W. 984. Leading questions are also allowed with greater freedom. Rex v. Watson, 2 Stark. 116, 128. But see Rex v. Dickman, 5 Cr. App. R. 135, 142. These minor variations, however, scarcely sustain the broad ground taken by the court. An unsworn identification, by declaration alone or with gesture, presents all the elements of hearsay, and is therefore inadmissible by the weight of authority. O'Toole v. State, 105 Wis. 18, 80 N. W. 915; State v. Houghton, 43 Ore. 125, 71 Pac. 982. Some courts admit the declaration as part of the res gesta, on the ground that it accompanies and explains the material act of pointing out the accused. Lander v. People, 104 Ill. 248. Such a view, however, ignores the hearsay quality of the gesture itself, and virtually makes an accompanying gesture the only requisite for the admissibility of any declaration. The mere recognition of the defendant by the victim might possibly have enough probative value on the issue of identification to render it admissible as an expression of a material mental state. See Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285; Jacobs v. Whitcomb, 10 Cush. (Mass.) 255. But this exception to the hearsay rule would not cover the accompanying descriptive declaration. State v. Egbert, 125 Ia. 443, 101 N. W. 191; Clark v. State, 39 Tex. Cr. R. 152, 45 S. W. 696. A different situation arises, of course, when a former identification is used to supplement a witness's recollection. Regina v. Burke, 2 Cox C. C. 295. And the hearsay rule would not affect the admissibility of the previous declaration to support an impeached witness. See Murphy v. State, 4I Tex. Cr. R. I20, I S. W. 940. See also 2 WIGMORE, EVIDENCE, § 1130. But the principal case seems difficult to support.

FALSE IMPRISONMENT - ARREST WITHOUT WARRANT WHERE CRIME CHARGED NOT COMMITTED. A bookseller having suffered repeated losses, and reasonably believing a certain clerk to be guilty of the thefts, caused him to be arrested without a warrant and prosecuted, on the charge of having stolen a particular book. This book had not in fact been stolen. Held, that the bookseller, though not liable for malicious prosecution, is liable for false imprisonment. Walters v. Smith, 30 T. L. Rep. 158.