But

motives can be attributed in the former case, while they often are in the latter, and hurt the usefulness of the judges. Governors are apt to appoint moderate men of mediocre abilities, and not chiefs of the bar. Sometimes they make good nominations for vacancies, and then their nominees are taken up and elected. Frequently both parties unite on the same man. The election of Judges Rapallo and Andrews was a noteworthy instance of this. our point is this: no governor or series of governors would have had the wisdom, the experience and the independence to appoint such a list of judges as have graced our bench for forty years, who have built up such a magnificent system of law, and have made themselves honored and our State famous all over the world. Look at the names of some of these great and useful men: Jewett, Bronson, Gardiner, Jones, Wright, Cady, Harris, Edmonds, Denio, A. S. Johnson, Parker, Allen, Samuel L. Selden, Comstock, Paige, Strong, Grover, Davies, Hogeboom, Porter, Potter, Davis, Peckham, Miller, Woodruff, Daniels, Earl, Ingalls, Church, Folger, Rapallo, Andrews-here is a list of above thirty of the most eminent, taken from recollection, and we will ask if any partisan of the appointing system will have the confidence to assert that the governors would have given us these men, or any to compare with them, as a whole, in ability and reputation? The governors have meantime made some excellent, some tolerable, and a few very bad appointments, but the people have not named a single failure for this court, and only two or three for the Supreme Court. It is much better that the judge should be and feel responsible to the people than to the gov

ernor.

Mr. Ward's scheme puts altogether too much patronage in the hands of the governorseven judges, at a salary of $12,000, for fourteen years almost $1,200,000. It is not wholesome for any judge to feel that he is indebted to any one man for an office worth $168,000. Mr. Ward's device for making the appointees non-partisan is very ineffectual. Not more than three from any political party at present that means three Democrats, three Republicans and one Prohibitionist. Well, suppose Governor Hill wanted all Prohibitionists; what is to hinder, if by chance he could find three Democratic Prohibition lawyers in the State? Or suppose he wanted them mostly Democrats; he could name three straightout Democrats and three malcontent or pseudo-Republicans, who work for the Democrats, and the thing is done. We draw these instances merely to show how easy the thing is. It is very easy to organize a nonpolitical court by election at the start; much more certainly than by appointment. We have thus hastily gone over the striking objections to Mr. Ward's scheme, reserving it for future occasion to work out the arguments more in detail and with more reflection. As at present advised, we much prefer Mr. Moak's scheme published in this journal some months ago.

Governor Hill has vetoed a bill designed to effectuate the joint resolution to amend the Constitution

so as to provide for an increase of the number of Supreme Court judges, by providing for printing ballots, etc. The Legislature very unfairly provided only for printing affirmative ballots, so that if any one desired to vote against the amendment he would be compelled to write his ballot. This was probably an adroit trick to insure the passage of the amendment, for very few would take the trouble to write a ballot, or get it in the proper form if they undertook it. The governor did wisely in disapproving this scheme. The Judiciary Commission will decide whether the State needs more Supreme Court judges or not. It is doubtful that there is any such need, except perhaps in the first and second districts. We know of judges in other localities who do not earn their salt, and others who are certainly not overworked, and we have received letters from Supreme Court judges expostulating against any increase, and asserting that there would be plenty if the Second Division of the Court of Appeals were remanded to their proper duties.

David Dudley Field, at the age of eighty-four, sets out once more for Europe. He is a prophet not without honor in his own country, but even more honored in other countries. He writes us: "I shall make my arrangements to pass the winter in Europe or Africa. While this is my general plan, I shall take several other things in my way. First, I have to attend the Universal Peace Congress, which meets in London on the 15th of July, and there I shall do what I can to promote the progress of public opinion in favor of disarmament and international arbitration. If the Institute of International Law has a meeting I shall attend it, and so of the Association for the Reform and Codification of the Laws of Nations, which I hope will have a meeting in Copenhagen." Mr. Field intimates that he is still inclined to favor codification of the common law. How much more admirable is the career of this honored

publicist than the lives of men who invent dynamite guns, smokeless powder and range-fixers!

The New York Law Journal very justly criticises the printing and binding of 118th New York. It also says: "We note also a novelty, which, to us at least, is very unpleasant, which concerns the reporter, Mr. Sickels, and not the publisher - that is, printing at the top of the pages the names of cases in much too abbreviated a form. For instance, we find page 443 headed C. E. Bank v. F. N. Bank.' This conveys no impression to the mind of the real name of the case. Neither does Todd v. U. S. D. Institution,' page 341, nor Miller v. O. S. 8. Co.,' page 207, nor Mayor v. E. A. R. R. Co.,' page 389. Some headings are complete puzzles, as 'Uransky v. D. D., E. B. & B. R. R. Co.,' page 304." It is undoubtedly better to give the title in full at the top of the page when possible, but it is rarely possible, for want of room. In a few instances the first word of the titles of these corporations might have been given, and this would have been better than what is given. There is no excuse whatever for "R. R.”

well v. Railroad Co., 8 N. E. Rep. 537. I am aware that complainant's counsel rely upon the first two of these cases, and insist that the present one is clearly within the rules there laid down. But after a very full consideration, I am wholly unable to come to that conclusion; and this view of the case, I think, is well supported by the case of Railroad Co. v. City of Newark, 10 N. J. Eq. 352, which shows that there must be some negligence or abuse of its privileges on the part of the company. Radcliff's Ex'rs v. Mayor, etc., 4 N. Y. 196; 53 Am. Dec. 357, and numerous cases cited at the end of the case in the volume last referred to. Bellinger v. Railroad Co., 23 N. Y. 42; and see especially the case of Beseman v. Railroad Co., 50 N. J. Law, 235, which decision was sustained on appeal."

In Herreshoff v. Boutineau, Supreme Court of Rhode Island, April 14, 1890, it was held that a contract not to teach the French or German language, nor aid or advertise to teach them, nor to be connected with any person or institution teaching them, in the State of Rhode Island, for a year after leaving complainant's employ, is not void on the ground of public policy, simply because it applies to the entire State. The court said: "The argument is, if the restraint is general throughout the realm, the public interest is interfered with, since the party restrained can only resort to his trade for a livelihood by expatriation. But if the restraint be local and partial, the party and the public may still have the benefit of his services in his own land, in some other place. While this distinction has frequently been recognized, the cases in which it has had the sanction of a decision have been few. In Rousillon v. Rousillon, 14 Ch. Div. 351, Fry, J., mentions only two, and these, he says, seem to have been decided upon the ground of unreasonableness, rather than upon the ground of universality. In other words, the universality was held to be unreasonable. This case, following Whitaker v. Howe, 3 Beav. 383; Jones v. Lees, 1 Hurl. & N. 189, and Leather Cloth Co. v. Lorsont, L. R., 9 Eq. 345 expressly holds that there is no absolute rule that a covenant in restraint of trade is void if it is unlim

ited in regard to space. The respondent urges that Rousillon v. Rousillon has been overruled by the recent case of Davies v. Davies, 36 Ch. Div. 359, but we do not think this is so. While Cotton, L. J., showing great willingness, if not anxiety, to overrule it, based his opinion upon the ground that the restriction was void, because unlimited in space, Bowen, L. J., did not put his decision on that ground, and Fry, L. J., adhered to his opinion in Rousillon v. Rousillon. That Davies v. Davies was not received in England as overruling the lastnamed case, see note to this case in Law Quarterly Review, vol. 4, p. 240. In view of these cases, we do not think it is now the rule in England that restraint throughout the kingdom is absolutely void. In this country the cases have been quite similar to those in England. Match Co. v. Roeber, 106 N. Y. 473; Navigation Co. v. Winsor, 20 Wall. 64. It would therefore be absurd, in the

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light of this common experience now, to say that a man shuts himself up to idleness or to expatriation, and thus injures the public, when he agrees, for a sufficient consideration, not to follow some one calling within the limits of a particular State. There is no expatriation in moving from one State to another, and from such removals a State would be likely to gain as many as it would lose. We do not | think public policy demands an agreement of the kind in question to be declared void, and we do not think such a rule is established upon authority. * * * In determining the reasonableness of a contract, regard must be had to the nature and circumstances of the transaction. * But it is unreasonable to ask courts to enforce a greater restriction than is needed. So it has been uniformly held that restrictions which go too far are void. As was said in the note of the Law Quarterly Review, above cited: 'Covenantees desiring the maximum of protection have no doubt a difficult task. When they fail it is commonly because, like the dog in the fable, they grasp at too much, and so lose all.' Besides the matter of protection, the hardship of the restriction upon the party and the public should also be considered. In the present case we think the restriction is unreasonable. Not as a rule of law because it extends throughout the State, but because it extends beyond any apparently necessary protection which the complainant might reasonably require, and thus, without benefiting him, it oppresses the respondent, and deprives people in other places of the chance which might be offered them to learn the French and German languages of the respondent. The complainant urges that he has established a school in Providence, at great expense, to teach languages by a new method, where scholars come from all parts of the State, and that by reason of the small extent of the State, and the ease of passing to and fro within it, such a restriction is reasonable and necessary to keep teachers from setting up similar schools, and enticing away his scholars. All this may be true with reference to Providence and its vicinity. But while, as is averred, many pupils from all parts of the State may come to Providence, as a center, for the same reason few would go to other places. For example, a school in Westerly or Newport would be likely to draw scholars from Providence, or places from which Providence is more easily reached. Indeed the complainant says he offered, after the contract was made, and now offers, to allow the respondent to teach in Newport, thereby admitting that the restriction is greater than the necessity. The people of Newport, Westerly and other places have the right to provide for education in languages without coming to Providence. It is hard to believe, and the bill does not aver, that the losing the few, if any, from some such place who might leave the complainant, if the respondent were to teach there, would seriously affect the complainant's school. Teaching in Providence, or in any place from which the complainant receives a considerable number of pupils, might affect it, and a restriction limited accordingly might be reasonable; but we think it is

unreasonable to go further. The complainant bought nothing of the respondent whose value he now seeks to destroy. He hired the latter as a teacher at no more than fair wages. He needs and has the right only to be secured against injury to his school from teachers who may entice away his scholars after leaving his employ. The contract clearly goes beyond this."

THE

THE SENATE LIQUOR BILL.

HE Senate of the United States recently passed a bill entitled "An act to limit the effect of the regulations of commerce between the several States and with foreign States in certain cases," which provides:

"That all fermented, distilled or other intoxicating liquors, or liquids, transported into any State or Territory for use, consumption, sale or storage, shall, on arrival in such State or Territory, or remaining therein, be subject to the operation and effect of the laws of such State or Territory, enacted in the exercise of the police powers, to the same extent and in the same manner as though such liquors or liquids had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced in original packages or otherwise."

Chief Justice Fuller, in stating the reasons for the recent decision of the Supreme Court of the United States in what is known as the Iowa Original Package Case, said that "up to that point of time"-namely, the point of time when the article introduced into a State has become mingled with the common mass of property within the State "--" we hold that, in the absence of congressional permission to do so, the State had no power to interfere by seizure or any other action in the prohibition of importation and sale by the foreign nonresident or importer." He also said that "to concede to a State the power to exclude, directly or indirectly, articles so situated"—namely, before they had become thus "mingled"-" without congressional permission, is to concede to a majority of the people in a State, represented in the State Legislature, the power to regulate commercial intercourse between the States by determining what shall be its subjects, when that power was distinctly granted to be exercised by the people of the United States represented in Congress."

The intimation of Chief Justice Fuller, as above referred to, implies that, with the Congressional permission" mentioned, a State might, in respect to the matter under consideration, constitutionally do what it could not do without such "permission." This suggestion at once called attention to a method by which, according to the suggestion, certain difficulties arising from the recent decision of the Supreme Court might be obviated. The Senate bill, as above quoted, seems to be based on this suggestion, and is designed to secure this result. Upon the bill the following comment is submitted to the reader:

It is unquestionably no easy task to mark, by a certain and definite line, the division between foreign and domestic commerce, and to fix the precise point in relation to every imported article where the paramount power of Congress terminates, and that of the State begins. The Constitution itself does not attempt to define these limits. They cannot be determined by the laws of Congress or the States, as neither can by its own legislation enlarge its own powers or restrict those of the other. And, as the Constitution itself does not draw the line, the question is necessarily one for judicial decision and depends altogether upon the words of the Constitution."

There is profound sense in this language. Either the States can or they cannot constitutionally legislate within the domain of foreign and inter-State commerce. If they can do so, then they need no permissive act by Congress to give them this power; and if they cannot do so, then it is difficult to see how Congress can, by a mere legislative definition, enable them to do what the Constitution, by necessary implication, says that they shall not do, and nowhere, either expressly or by implication, says that they may do, provided that Congress shall give its consent.

4. This bill legislatively contradicts the doctrine of the Supreme Court of the United States in respect to the very matter to which it refers. That doctrine is that an article of foreign or inter-State commerce, under the Constitution, remains such so long as it continues in the original package in the hands of the first consignee or purchaser, with the right of sale, independently of any State laws to the contrary. The doctrine of this bill is that intoxicating liquors, brought into a State as articles of foreign or inter-State commerce, become, in the matter of use, consumption and traffic, subject to State jurisdiction, like liquors there "produced," upon their "arrival" therein. Here are two different and incompatible doctrines, alike in terms and substance as expositions of the Constitution. If the Senate bill is right, then the Supreme Court of the United States has been wrong for a long series of years.

5. The underlying principle of this bill, though in the bill itself limited to intoxicating liquors, is just as applicable to the entire foreign and inter-State commerce of the country, and to all the articles of such commerce. The principle, in itself considered, virtually relinquishes and abdicates the commercial power of Congress in respect to any article, by the Constitution declared to be subject to that power, the moment that article by transportation arrives in a State; and whether the article, having thus reached its destination, may there be sold at all or not, is, according to the principle of this bill, a question with which the people of the United States, under the Constitution, have nothing to do, and in respect to which the police powers of the State are supreme and absolute. If this be not the result, then we have two supreme jurisdictions operating in the same territory and in respect to the same matter.

Generalize the principle of this bill by applying it to all the foreign and inter-State commerce of the country, and to every thing embraced in such commerce, and one would not need a prophet's eye to see the immensity of the change that would be thus effected. The principle makes false a large number of decisions of the Supreme Court of the United States, and limits the commercial power of Congress to the mere matter of transportation, and does not allow that power to follow the transported article beyond its "arrival" in a State. Then that power becomes inoperative, and that of the State becomes exclusive and supreme. This is carrying the "State Rights" doctrine to a great length. It is true that this bill applies the doctrine only to intoxicating liquors; yet this does not alter the principle involved. That is the same, no matter to what it applies.

6. What is needed is a specific law, definite in its terms as to the articles to which it is applicable, to be carried into effect by the government of the United States, that can and would be thus enforced, and would have the effect of preventing the introduction of intoxicating liquors into any State, as articles of foreign or inter-State commerce, in which the manufacture and sale of such liquors are forbidden by law. Such a law would meet the practical necessities of the moment, as connected with those States in which the doctrine of Prohibition has been adopted; and if further legislation by Congress should become necessary, time would disclose the fact, and also the specific character of the legislation.

Daniel Webster once said that the impression that "something must be done," is the source of not a little bad legislation. Such an impression is very apt to find its reasons in political and party considerations, and be specially potent when a popular election is near at hand. Congress will do well to look before it leaps, and to look long enough to see the precise nature of its own action.

HARLAN, J. Henry E. Barber, the appeliee, was convicted before a justice of the peace in Ramsey county. Minnesota, of the offense of having wrongfully and unlawfully offered and exposed for sale, and of having sold, for human food, one hundred pounds of fresh uncured beef, part of an animal slaughtered in the State of Illinois, but which had not been inspected in Min nesota, and "certified" before slaughter by an inspector appointed under the laws of the latter State. Hav ing been committed to the common jail of the county pursuant to a judgment of imprisonment for the term of thirty days, he sued out a writ of habeas corpus from the Circuit Court of the United States for the District of Minnesota, and prayed to be discharged from such imprisonment, upon the ground that the statute of that State, approved April 16, 1889, and under which he was prosecuted, was repugnant to the provis ion of the Constitution giving Congress power to regulate commerce among the several States, as well as to the provision declaring that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. Art. 1, § 8; art. 4, §2. The court below, speaking by Judge Nelson, held the statute to be in violation of both of these provisions, and discharged the prisoner from custody. In re Barber, 39 Fed. Rep. 641. A similar conclusion in reference to the same statute had been previously reached by Judge Blodgett, holding the Circuit Court of the United States for the Northern District of Illinois. Swift v. Sutphin, 39 Fed. Rep. 630.

From the judgment discharging Barber the State has prosecuted the present appeal. R. S., § 764; 23 Stat. 437, chap. 353.

Attorneys representing persons interested in maintaining the validity of a statute of Indiana, alleged to be similar to that of Minnesota, were allowed to participate in the argument in this court, and to file briefs.

The statute of Minnesota upon the validity of which the decision of the case depends is as follows: "AN ACT for the protection of the public health by providing for inspection before slaughter of cattle, sheep and swine designed for slaughter for human food.

"SECTION 1. The sale of any fresh beef, veal, mutton, lamb or pork for human food in this State, except as hereinafter provided, is hereby prohibited.

§ 2. It shall be the duty of the several local boards of health of the several cities, villages, boroughs and townships within this State to appoint one or more inspectors of cattle, sheep and swine, for said city, vil lage, borough or township, who shall hold their offices for one year, and until their successors are appointed and qualified, and whose authority and jurisdiction shall be territorially co-extensive with the board so appointing them; and said several boards shall regu late the form of certificate to be issued by such inspectors and the fees to be paid them by the person applying for such inspection, which fees shall be no greater than are actually necessary to defray the costs of the inspection provided for in section three of this act.

"§ 3. It shall be the duty of the inspectors appointed hereunder to inspect all cattle, sheep and swine slaugh tered for human food within their respective jurisdictions within twenty-four hours before the slaughter of the same, and if found healthy and in suitable condition to be slaughtered for human food, to give to the applicant a certificate in writing to that effect. If found unfit for food by reason of infectious disease, such inspectors shall order the immediate removal and destruction of such diseased animals, and no liability for damages shall accrue by reason of such action.

§ 4. Any person who shall sell, expose or offer for sale for human food in this State, any fresh beef, veal, mutton, lamb or pork whatsoever, which has not been