15.- -Damages.-A coal dealer, suing for wrongful delivery to others of a carload of coal consigned to him, cannot recover his prospective profits on the resale of the coal at retail, when no facts entitling him to special damages are pleaded.-Smith v. New York, O. & W. R. R. Co., N. Y., 196 N. Y. S. 521.

16. Constitutional Law-License.-City ordinance of Seattle, enacted in July, 1921, providing for licensing and regulating the business of pawnbroking, and that no licenses should be granted unless applicant was a citizen of the United States, is not in violation of Const. art. 1, § 3, or of Const. U. S. Amend. 14, § 1.-Asakura v. City of Seattle, Wash., 210 Pac. 30.

17. License.-Section 35a of chapter 32 of Code 1913, as amended and re-enacted by chapter 109, Acts 1921, properly construed, does not confer upon county courts or municipalities the discretion to arbitrarily grant or refuse licenses to persons to carry on the several kinds of business therein authorized, so as to render said statute void for infringing any of the provisions of the Constitution of the United States or of this state. -State v. Pocahontas County Court, W. Va., 114 S. E., 519.

18. Police Power. The regulation of places where non-intoxicating liquors, as defined in Laws 1921, c. 441, are sold, is within the state police power, which may be delegated to counties. Kroeplin v. Milwaukee County, Wis., 190 N. W. 454.

19. Contracts-Official Fiduciaries.-Where an uncle, whose relationship with his nephew was practically that of parent and child, proposed to the nephew that if he would wholly abstain from the use of intoxicating liquors and devote his time to the uncle's business for five years he would pay him $10,000, the promise when accepted and carried out by the nephew constituted a valid and enforceable contract.-Greensboro Bank & Trust Co. v. Scott, N. C., 114 S. E. 475.

20. Option.-An option is a continuing offer which the offeror may not withdraw until the expiration of the time fixed for the reason that the promise is based on a consideration, being distinguished from a continuing offer which can be withdrawn at any time before acceptance, in that there is no consideration for such offer.-Sargent & Co. v. Heggen, Iowa, 190 N. W. 506.

21. Corporations - Implied Knowledge.-The president of a corporation, making representations to a purchaser of his stock, is bound to know the financial condition of the company, regardless of whether he does so in fact.-Wilgrube v. Nast, Wis., 190 N. W. 451.

22. Right to Rescind.-Where, in such case, the party contracting with such corporation has knowledge that an agent employed by him. in negotiating the contract is assisting the corporation to raise the money to pay a part of the purchase price, and is also furnishing collateral to secure the further performance of the contract on behalf of the corporation, he will be charged with notice that such agent is acting in a fiduciary capacity for such corporation, and the corporation, upon discovering that such agent, because of the making of said contract, is to receive a large secret profit from the party with whom it contracts, may repudiate the same, and compel the restoration to it of what it has paid or delivered under the contract.-Tri-State Coal & Timber

Lands Ass'n v. Neace, W. Va., 114 S. E. 569.

23. Covenants-Highways.-A public highway is not an incumbrance within the covenants of a warranty deed.-Dierksen v. Pahl, Iowa, 190 N. W.. 423.

24. Criminal Law-Evidence.-Upon the trial of a criminal prosecution, a general objection to the introduction of evidence obtained by search and seizure raises no question other than that of the competency, relevancy, and materiality of the evidence tendered, and the court is not required to then examine the collateral question of the regularity of the proceeding whereby such evidence came into the possession of the prosecution.-Ciano v. State, Ohio, 137 N. E. 11.

25. Customs and Usages-Parties Affected.Cutoms or usages generally and universally recog

nized in a trade or business are presumed to be known by those outside of, as well as within, the trade or business, in all transactions and contracts relating thereto, unless the contrary appears.— City of Somerset v. Gainesboro Telephone Co., Ky., 244 S. W. 758.

26. Death-Amount of Damages.-An award of $1,500 for the wrongful death of a 3-year-old child, $1,000 being for the loss of the pecuniary benefits after majority, held not excessive.-McGonegle v. Wisconsin Gas & Electric Co., Wis., 190 N. W. 471.

27.- -Damages. In administrator's action for death of wife for the benefit of the surviving husband under Laws 1917, p. 495, in which the value of the wife's services was variously estimated at from $30 to $75 per month, verdict of $4.000 held not excessive where the life expectancy of a woman of the age of decedent at the time she was killed was 12 years.-Danielson v. Carstens Packing Co., Wash., 210 Pac. 12.

28. Damages.-A verdict of $5,000 in favor of a mother for the death of her child two years old held not so excessive as to suggest passion, prejudice, or corruption.-Rosenbloom v. Southern Pac. Co., Calif., 210 Pac. 53.

29.

Electricity-Rates.-When a municipal corporation by an ordinance gives its consent to a public service corporation to enter the municipality and furnish electricity or gas to consumers upon terms and conditions which are accepted in writing by the public service company, such action by both parties constitutes a contract, and the rights of the parties thereunder are to be determined by the contract itself; but the right to regulate the rates of public service corporations is a governmental power vested in the state in its sovereign capacity, which it may exercise directly or through a commission or may delegate to a municipality. under the police power.-Town of Pocahontas v. Central Power & Light Co., Ark., 244 S. W. 712.

30. Trespass.-That an employer telephone company maintained its wires on defendant electric light company's poles raises the presumption it had acquired right to such maintenance, and its workman, when ascending the pole to make repairs, is not a trespasser upon the electric light company's property.-Cappuccio V. Hammonton Electric Light Co., N. J., 118 Atl. 712.

31.-Wires.-Where

a telephone company. whose wires were 10 or 12 feet above, and 6 or 8 feet to one side, of an electric wire, let a broken wire hang from its line in such a position that, from natural causes or playing of children, it could be brought into contact with the electric wires. the company was guilty of an act of negligence rendering it liable for the death of boys 13 and 17 years of age, who were killed thereby.-Sebring v. Bell Telephone Co., Pa., 118 Atl. 729.

an

32. Frauds, Statute of-Contract.-A contract between a railroad company and engineer, whereby the engineer was to be paid a bonus of $1,000 if he continued in the service of the company until the railroad was completed, held within Ky. St. § 470, subsec. 7, as not to be performed within one year, where, though it was possible, it was not within the contemplation of the parties that it could or would be performed within such time.-Cumberland & M. R. Co. v. Posey, Ky..

244 S. W. 770.

33. Parole Evidence.-A written contract for the sale of land, being within the statute of frauds. cannot be varied by a substituted subsequent oral agreement, purporting to make material changes in the written agreement.-Kerzner v. Chanin, N. J., 118 Atl. 693.

34. Insurance Accident.-In absence of some qualifying exception, death from an unprovoked murder is within the terms of a policy covering death from accidental causes.-National Life & Accident Ins. Co. v. Hodge, Tex., 244 S. W. 863. 35. Application.-Where the insured died of double pnuemonia folowing an attack of influenza, an alleged false statement in the insured's application touching the cause of his father's death. which was either accidental gunshot wound or suicide, is immaterial. Gen. St. 1915, § 5290.Hayslip v. Great American Life Ins. Co., Kan., 210 Pac. 188.

36.- -Gas.-The term "gas," as used in the policy, must be accepted in its common and ordinary meaning, and would cover any substance in the aeriform state having noxious or poisonous qualities, as perhaps distinguished from smoke or dust, which is matter in the solid state finely diffused through the air.-Birss v. Order of United Commercial Travelers, Neb., 190 N. W. 486.

37-Marine Policy.-Under a marine policy insuring a cargo of coal against perils of the sea, the insured was entitled to recover for the loss of the coal, where the vessel was lost as a result of a storm and the action of the wind and waves; the phrase "perils of the sea". not being limited to extraordinary perils, but covering all kinds of marine casualties.-Clinchfield Fuel Co. v. Aetna Ins. Co., S. C., 114 S. E. 543.

38.-Post Facts Laws Acts 1917, p. 2087 (Crawford & Moses' Dig. § 6068 et seq.), regulating fraternal benefit societies, does not apply to question of age of one to whom a benefit certificate was issued prior to the enactment of the statute.-Home Mut. Ben. Ass'n v. Rowland, Ark., 244 S. W. 719.

39.- -Suicide.-In a suit on a policy under which there was no liability for suicide, insurer has the burden of proving that insured committed suicide.-Mott v. Sovereign Camp, W. O. W., Ark., 244 S W. 733.

40. Intoxicating Liquors-Contempt Proceedings. Where affiant signed and swore to the verification to a complaint in contempt proceedings for violating an injunction order obtained under National Prohibition Act, tit. 2, § 22, the typist's failure to insert the name of the affiant in the verification did not vitiate the complaint.-Weiss v. United States, U. S. C. C. A., 283 Fed. 785.

41.- -State Statute. Though the Dean Law (Gen. Laws 37th Leg. First Called Sess. [1921] c. 61 [Vernon's Ann. Pen. Code Supp. 1922, art. 5884 et seq.]), would seem to allow the possession of intoxicating liquor for personal use, the courts are not permitted to construe it as authorizing the manufacture and transportation of such liquors, which is clearly and unmistakably prohibited.Copeland v. State, Tex., 244 S. W. 818.

42. Transportation.-The burden of proving that liquor is being transported for one of the excepted purposes is upon the one accused of illegal transportation.-Mayfield v. State, Tex., 244 S. W.

819.

43. Joint-Stock Companies and Business Trusts -Trustees.-Trustees, who by a company's declarations of trust are, without reservation, given absolute control and management of its affairs, cannot, under the rules governing trusts, without resigning, divest themselves of the authority to manage and control its property and affairs, as by employing a general manager not subject to their control.-Phoenix Oil Co. v. McLarren, Tex., 244 S. W. 830.

44. Landlord and Tenant-Possession.-Where there was evidence that landlord desired to personally use tenant's apartment, no increase in rent had been demanded, and there was nothing to negative the apparent good faith of landlord, it was error to dismiss a petition for possession.— Leichtman v. Schonberger, N. Y., 196 N. Y. S. 516.

45. -Rent.-Under Civil Practice Act, § 1410, subd. 2-a, relative to summary proceedings to recover possession of real property in a city of the first class, etc.. for non-payment of rent. it must not only be alleged, but proved as a fact, that the rent, the non-payment of which is relied on, is no greater than the amount for which the tenant was liable for the preceding month -Breslaw v. Rightmire. N. Y., 196 N. Y. S. 539.

46. Livery Stable and Garage Keepers-Conversion.-A truck company, holding a truck merely in storage or with authority to sell, cannot apply the truck in payment of, or pledge it as security for, its own debt.-Western Finance & Development Co. v. Fisher, Colo., 210 Pac. 66.

47. Repair Lien.-Where conditional vendor of an automobile had the note recorded, and had no knowledge that repairs were being made on the automobile. repairman not complying with Rev. St. c. 96, 56, has no common-law lien for repairs as against conditional vendor, though repairman

had no actual knowledge of the conditional sale prior to making repairs.-Bath Motor Mart V. Miller, Me., 118 Atl. 715.

48. Master and Servant-Federal Employers' Liability Act.-A pleading in a railroad engineer's action for injuries, warranting a recovery under either the federal Employers' Liability Act (Comp. St. 88 8657-8665) or the common law and statutes of the state, as the jury shall find, is not contrary to the statutes of the United States.-New York Cent. & H. R. R. Co. v. Kinney, U. S. S. C., 43 Sup. Ct. 122.

49.- -Railroads.-The chaining together of detached cars which have stood for hours and may stand for hours longer on a side track used only for storage of crippled cars is not a coupling in connection with the movement or hauling of such cars within the meaning of Safety Appliance Act April 14, 1910, § 4 (Comp. St. § 8621).M'Calmont v. Pennsylvania R. Co., U. S. C. C. A.. 283 Fed. 736.

50. Mines and Minerals Laches.-Complainant held barred by laches from maintaining a suit to recover a half interest in mining property which with his knowledge had been acquired by defendant and others more than two years before, and had been developed by them at large expense until it had been proved a very valuable property, and where he also had knowledge, or means of knoweldge, during that time of the facts relied on.-Bacon v. Neill, U. S. C. C. A., 283 Fed. 717.

of

51. Municipal Corporations-Appropriation Funds-Section 3959, General Code, is constitutional, and operates as a valid limitation upon the uses and purposes for which revenues derived from municipally owned waterworks may be applied. By virtue of the provisions of that section, surplus revenues derived from water rents may be applied only to repairs, enlargement or extension of the works, or of the reservoirs, and to the payment of the interest, of any loan made for their construction, or for the creation of a sinking fund for the liquidation of the debt.-City of Cincinnati v. Roettinger, Ohio, 137 N. E. 6.

52. Automobiles.-An automobile is not an inherently dangerous instrumentality, and the owner generally is not liable for its negligent use by another, to whom he loans or intrusts it for the other's purposes, but the owner is liable if he intrusts his automobile to such other person, knowing such other person to be so reckless, heedless, or incompetent in the operation of automobiles as to render the machine while in his hands a dangerous instrumentality.-Jones Wash., 210 Pac. 22.

V. Harris,

in an

53. -Contributory Negligence.-Where, action against a city for damages resulting from dangerous condition of a board sidewalk, it was shown that the walk was in daily use by the public, that at the time of plaintiff's injury it was a quite dark, foggy evening, and that she was aware of the general bad condition of the walk, but not the particular broken board which resulted in her injury, her contributory negligence was properly submitted to the jury.-Stockdale v. City of Renton, Wash., 210 Pac. 360.

54. Proximate Cause.-Though both parties to an automobile collision were negligent, because violating traffic laws, recovery is not precluded if plaintiff's act contributed in no material degree to the collision, and defendant's negligence was the direct and proximate cause.-Twedt V. Seattle Taxicab Co., Wash., 210 Pac. 20.

55. Principle and Agent-Authority.-Under Civ. Code, 2317, defining ostensible authority, the fact that an employee was permitted to open the mill of his employer and intrusted with the duty of bringing to the attention of proper officers correspondence addressed to employer was insufficient to bind the employer by a letter subscribing for reports, written by employee without authority, in the absence of evidence that complaining party knew such facts or was misled by them.-Allen v. San Francisco Wholesale Dairy Produce Exch.. Calif., 210 Pac. 41.

56. Railroads Service.-Where a New York railroad corporation owned no road in Ohio, but ran through trains over the road of another company,

and ticket agents for both companies sold tickets good over either or both lines, the proceeds being divided on periodical settlements, the New York company held not doing business in Ohio, and the agents of other company in Ohio not its agents, and hence service on one of such agents was not valid service on it.-General Inv. Co. V. Lake Shore & M. S. Ry. Co., U. S. S. C., 43 Sup. Ct. 106. 57. Removal of Causes-Jurisdiction.-An allegation in a petition for removal, in a suit involving a special sewer assessment, that complainant was a corporation of another state, and defendant "an incorporated town," held sufficient to show diversity of citizenship, though in fact defendant was a city of the second class; the court taking judicial notice that a town or city in its district is incorporated under the laws of the state and is a citizen thereof, and the error in description being also a matter of judicial knowledge, and subject to correction by amendment.-Chicago, M. & St. P. Ry. v. City of Spencer, Iowa, U. S. D. C., 283 Fed. 824.

58. Sales-Delivery.-Where contract for the sale of potatoes required seller to deliver them to buyer at freight cars at a named station, under Uniform Sales Act (St. 1921, § 1684t-19, subd. 5), the title did not pass until seller had made delivery to the station; hence where potatoes froze after being sorted and sacked, but before delivery, the loss fell on the seller.-Zank v. Jones, Wisc., 190 N. W. 445.

59.-Warranties.-Under Rev. Codes 1921, § 7624, providing that upon breach of warranty buyer may rescind an agreement for sale, but not an executed sale, unless the warranty was a condition, a complaint, drafted upon the theory that plaintiff had rescinded his contract for breach of warranty, does not state a cause of action, where a completed sale was alleged.-Rickards v. Aultman & Taylor Machinery Co., Mont., 210 Pac. 82.

60. Taxation-Indian Land. Lands, previously subject to taxation, purchased for a minor Creek Indian by her guardian, with approval of the Secretary of the Interior, with funds received as royalties under mining lease of her allotment, held not exempt from state taxation.-United States v. Ransom, U. S. C. C. A., 284 Fed. 108.

61. Merchant. Advertising space in newspapers, magazines and other publications is a commodity that can be bought and sold; but where an advertising agency did not sell its advertising space, but reserved absolute control thereof at all times, merely placing therein advertisements of its clients, which it charged an amount which might include a profit and fee for its services, it was not taxable by the state tax commission as a "mercantile corporation," under Tax Law, art. 9-a, as added by Laws 1917, c. 726, and amended by Laws 1918, c. 417, or exempted by section 219-j from local personal property taxation on its capital stock and surplus under section 12; for the word "mercantile," in its ordinary acceptation, pertains to the business of merchants, and has to do with trade, or the buying and selling of commodities, and a "merchant" is one who trafficks, or who buys or sells goods or commodities.-People v. Cantor, N. Y., 196 N. Y. S. 514.

62. Pensions.-Pensions payable from the income of a trust fund during the pensioners' lives, though subject to revocation by grantor, are not subject on his death to the transfer tax, where not a single pension was revoked, and grantor showed no intention of exercising his power to revoke.In re Carnegie's Estate, N. Y., 196 N. Y. S., 502.

63.- -Taxable Property.-Under Const. art. 13, § 2, requiring all property, including moneys, franchises, etc., to be taxed, the franchise to be a corporation is not taxable property, but can only be reached by a license tax.-Utah-Idaho Sugar Co., v. Salt Lake County, Utah, 210 Pac. 106.

64. Warehousemen-Damages.-Where furniture is in good condition when shipped, and is delivered by the carrier to a warehouseman, and, when later delivered to the owner, is found to be injured, the presumption is, in the absence of evidence, that it was damaged while in the possession of the last bailee, and the burden is on him to show the contrary.-Dantes v. McGann, N. J., 118 Atl. 709.

65.

Wills-Election.-An election by a surviving widow to take under her husband's will, in the manner prescribed by Act June 7, 1917, § 23 "c" (P. L. 403; Pa. St. 1920, § 8337) is not binding on her, where she was not fully informed by the executor as to her rights under the will, and the official who took her acknowledgment and upon whom she would naturally rely misinformed her.-Appeal of Morrison's Estate, Pa., 118 Atl. 728.

66. Intention.-Where a will provided that it was testator's "desire and request" that as soon as the money could be raised out of his estate, without sacrifice or detriment to the family living, certain bequests were to be given to daughters by a former marriage, the quoted words were not precatory, but were the equivalent of a specific direction and constituted a valid bequest to the beneficiaries named.-Phelps Mortgage Co. v. Thomas. Iowa, 190 N. W. 399.

67. Workmen's Compensation Act Aliens. - In the absence of state or federal legislation to the contrary, the term "aliens" as used in the Workmen's Compensation Act (St. 1921, §§ 2394-7, 2394-10, subsec. 5, and section 2394-17m) must be construed to be generic, and to include the specific. and an alien enemy dependent on a deceased employe is within the act.-Milwaukee Western Fuel Co. v. Industrial Commission, Wisc., 190 N. W., 439

68. Independent Contractors. One furnishing his own appliances and selecting his own assistants. sharing in his pay for the work of unloading automobiles from a freight car for a dealer who exercised no control over the work paid for at the regular rate of $1.50 for each machine, held an independent contractor, whose assistant injured in doing the work was not the dealer's "employee" within Workmen's Compensation Act.-Frieden v. Industrial Acc. Commission of California, Calif., 210 Pac. 420.

69.

-Proximate Cause.-Where an employee accidentally suffered a slight bruise upon the shin. which was not sufficient of itself to cause disability, but which, three days later, owing to a diseased condition of his blood, broke open and formed an ulcer at the center of the bruise; held, that the accident was the proximate cause of the disability resulting from the existence of the ulcer, and that such disability was caused by an accident arising out of the employment.-F. H. Gilcrest Lumber Co. v. Rengler, Neb., 190 N. W., 578.

70.-Within Scope of Act.-Evidence that an employee, who died of hernia, complained of pain. stating that, while lifting a piece of cloth, it slipped, and that he felt something give in his abdomen, with medical testimony that lifting the cloth in the manner described would be sufficient cause for the hernia, warranted a finding that the injury arose out of and in the course of his employment, within the Workmen's Compensation Act.-Butler's Case, Mass., 137 N. E. 175.

71. Within Scope of Act.-One employed to blast holes for his employers, having a contract for drilling and blasting holes in farm land as a preparation for planting vines and trees, is not excluded from the Workmen's Compensation, Insurance, and Safety Act, as being engaged in an employment under the classification of agriculture.— Helmuth v. Industrial Acc. Commission, Calif., 210 Pac. 428.

72. -Within Scope of Act.-A ranch hand, who did not receive pay when laid off, but received his board and lodging and always cared for his team and other stock when necessary on Sundays and days when he was laid off. held entitled to compensation for injury received while watering an unbroken horse, such injury being one occurring in the course of his employment within the Workmen's Compensation Act, though he was laid off for the day. Zurich General Acc. & L. Ins. Co. v. Industrial Acc. Com'n.-Calif., 210 Pac. 51.

73. Within Scope of Act.-One working out a road tax, as permitted by St. 1917. § 1248. instead of paying cash, is an "employee" of the town. within the Workmen's Compensation Act (St. 1921. § 2394-7).-Town of Germantown v. Industrial Commission, Wisc., 190 N. W. 448.

Pending the application for an interlocutory injunction against the execution of a State statute by a State officer, or of an administrative board of the State pursuant to a State statute on the ground of federal unconstitutionality, a single Federal Judge (Jud. Code § 266) may grant a restraining order, to be in force until the hearing on the injunction by three judges, as provided by statutes. There his functioning ends. A single judge has not the power to grant an interlocutory injunction after action by the three judges, denying the application, in order to preserve the status quo on appeal. The facts are that District Judge Foster, sitting alone, made an order in the District Court allowing the appeal, granted a supersedeas and continued the original restraining order made by him before the hearing by the three judges, until the appeal could be determined, in order to maintain the status quo. Certainly a reasonable interpretation supported the action of the District Judge, but, as we shall see, it was contrary to a new and most highly commendable policy fixed by the Federal Supreme Court in an effort to effectuate a manifest Congressional intention.

In denying this power in a single District Judge, the Chief Justice sharply drew a distinction that will prove comforting to the States and must be borne in mind by lawyers. Said he (Cumberland Co. Louisiana, 4 U. S. Sup. Crt. Ad. Op. (1922, 23), p. 97, 8): "Equity rule No. 74 which authorizes a justice or judge who took part in a decision of an equity suit granting or dissolving an injunction, to make an order suspending, modifying or

restoring the injunction pending the appeal, upon proper terms, does not apply to such an appeal, or such a case as this. This appeal is not from a final decree. It is a special proceeding in which the power of a single judge is definitely limited."

The reason given by the Chief Justice will aid counsel in the mental weighing now necessary in preparing for an attack upon a State law in a Federal court. "The wording of the section (§ 266 Jud. Code) leaves no doubt that Congress was, by provisions ex industria, seeking to make interference by interlocutory injunction from a Federal court with the enforcement of State legislation regularly enacted and in course of execution, a matter of the adequate hearing and the full deliberation which the presence of three judges, one of whom shall be a Circuit Justice or Judge, was likely to secure. It was to prevent the improvident granting of such injunctions by a single judge, and the possible unnecsary conflict between Federal and State authority, always to be deprecated."

In applying this splendid governmental principle, the Chief Justice went to the extent of asserting that the District Judge who granted a preliminary restraining order could not subsequently set aside his own order. The District Judge had fully exhausted his power as is made later on to appear. The three judges composing the special court thereafter have exclusive control and jurisdiction over the subject matter even as to perfecting an appeal. "We are of opinion," said the Court, "that a single judge has no power, in view of § 266, to affect the operation of the order of the Court constituted by the three judges granting or denying the interlocutory injunction applied for." This unanswerable reason is then given: "To hold that he may grant a temporary injunction varying the order of the three judges would be to make the legislation a nullity, and work the result that Congress was at great pains to avoid."

Then how may the status quo be assured, pending the appeal? Whatever is done must be the act of the three judges composing the Court. Moreover, "a discussion in conference of the judges as to the granting of an injunction pending an appeal, before it is applied for, does not supply what is needed to give efficacy to such order by a single judge. Compliance with the statute requires the assent of the three judges, given after the application is made, evidenced by their signature, or an announcement in open court, with three judges sitting, followed by a formal order, tested as they direct." Notice to opposing counsel of the intention to move the Court is also necessary, except in extraordinary cases, and it is assumed must be suitably evidenced of record or sufficient reason shown for its absence.

The procedure in the case is most interesting in this respect. Counsel contended that the three judges composing the Court had passed upon the injunction order actually signed only by Judge Foster, the District Judge, because "the question of supercedeas was a matter of discussion among the Court, composed of three judges." One of the three wrote a letter approving of it, but believed it to be a matter lying with the local District Judge and therefore, in fact, did not act, whatever his views. The other District JudgeClayton-never acted at all after that as, no doubt, under the circumstances he was not called upon. It seems necessary therefore to present a formal order to the three judges, ready for their respective signatures, that may be affixed wherever found, in the event they may not be conveniently assembled. Discretion would be the better part of common sense, under the ruling, to arrange the supersedeas immediately at the conclusion of the trial, if an opinion then be handed down.

There is another thought giving color to this far-reaching opinion. Manifestly, an injunction pending the appeal was sought at the hands of the Federal Supreme

Court, but that, too, was denied on the highest discretionary grounds, with the greatest possible deference to the special court of three judges, thought by Congress to be necessary, and a keen regard for the intention of Congress. The parties were sent back to the special court for any relief to which they felt themselves entitled. Said the Chief Justice: "The Court which is best and most conveniently able to exercise the nice discretion needed to determine this balance of convenience is one which has considered the case on its merits."

So, Congress having set up a special court to meet an unusual political condition, for that is what a conflict between the Federal and State governments eventually becomes, the nation's great Tribunal has gone the whole distance in effectuating its complete functioning. Not only is the possibility of interference by the local District Judge done away with, but the Supreme Court itself served notice that it will withhold its own powerful hands, except in "exceptional cases." The Special Court of three judges may be said to have all the power intended by Congress for a special purpose and an expectant people are permitted to observe its untrammelled nianagement of the delicate, sensitive and difficult issues arising out of our dual form of government, always productive of comment seasoned with the essence of wormwood and gall. The fact that one is willing to give his life for his government does not connote a muteness of criticism of its operation.

One never felt more like congratulating the Republic upon the personnel of a Court selected to pass in judgment upon the disputes of both government and people, for the opinion was unanimous. It is the work of statesmen as well as of judges. Many will record the case as alandmark. Conapplication of the rules of procedure, in such case made and provided. Some students will observe only an application of technical pleading, because of the absence of evidence of record of the participation