cement company might be built, for the reason that it appeared that some members of the public would undoubtedly make use of the line for loading and shipping freight, even though the operations over the branch would have a relatively insignificant effect upon the interstate traffic of the railroad involved,18

In each of the cases noted above, as well as in the principal case, the railways affected were and are engaged alike in intrastate and interstate commerce; and it appears that the courts before whom these cases were heard have all applied the well-established principle of dominant and exclusive control by Congress rather than by the several states, whenever the intrastate and interstate operations of common carriers become so inter-related that the regulation of one involves also the control of the other.14

There has not been a sufficient number of decisions in which the Transportation Act has been construed and applied to enable one to predict the degree of liberality with which the state and federal courts will view the exercise of the augmented powers of the Interstate Commerce Commission. The principal case, and the Federal and New York decisions referred to, seem to indicate that previous conceptions of interstate commerce have been broadened to a marked extent, and purely intrastate commerce has been correspondingly restricted within comparatively narrow boundaries. Though no attempt is here made to deal with the question of rates, reference to those cases involving interstate and intrastate rate regulation, in which the Transportation Act has been interpreted and applied, will reveal far-reaching conclusions, which may be taken as recognizing that the transportation system of the nation is not divided by state boundaries but is in fact a national institution to be dealt with in the interest of the country as a whole.15 On the other hand, the decision of the United States Supreme Court in State of Texas v. Eastern Texas Railroad Company 16 indicates that encroachment upon the control of purely intrastate commerce is not to be tolerated. In this case, the court was of opinion that section 402 of the Transportation Act has not empowered the Interstate Commerce Commission to authorize the abandonment of a railway line used in intrastate and interstate commerce, except insofar as interstate commerce might be involved. C. E. F.

13 Detroit & M. Ry. Co. v. Boyne City etc. Co. (1923) 286 Fed. 540. 14 Houston & Texas Ry. v. Ú. S. (1914) 234 U. S. 342, 351 and cases cited, 58 L. Ed. 1341, 34 Sup. Ct. Rep. 833; Chicago R. I. & P. Ry. Co. v. Hardwick Elevator Co. (1912) 226 U. S. 426, 57 L. Ed. 284, 33 Sup. Ct. Rep. 174; Erie R. Co. v. State of N. Y. (1914) 233 U. S. 671, 58 L. Ed. 1149. 34 Sup. Ct. Rep. 756; Adams Express Co. v. Croninger (1912) 226 U. S. 491, 57 L. Ed. 314, 33 Sup. Ct. Rep. 148.

15 R. R. Com. of Wisconsin v. Chicago, B. & Q. R. Co. (1922) 257 U. S. 563, 66 L. Ed. 371, 42 Sup. Ct. Rep. 232; State of New York v. U. S. (1922) 257 U. S. 591, 66 L. Ed. 385, 42 Sup. Ct. Rep. 239. For a good discussion of rate regulation under the Act of 1920 see: 2 Wisconsin Law Review, 56; 31 Yale Law Journal, 870; 34 Harvard Law Review, 864. For events leading up to the Minnesota Rate Cases see 27 Harvard Law Review, 14.

16 (1922) 258 U. S. 204, 66 L. Ed. 566, 42 Sup. Ct. Rep. 281.

INTOXICATING LIQUORS: FORFEITURE Under the Wright Act OF A VEHICLE USED IN THE UNLAWFUL TRANSPORTATION OF LIQUOR RIGHTS OF A CONDITIONAL VENDOR-Will the conditional vendor of a vehicle which has been used in the unlawful transportation of intoxicating liquor without his knowledge be protected in a proceeding under the Wright Act for the forfeiture and sale of the property? In the case of Traffic Truck Sales Co. of Cal. v. The Justice's Court of the Township of Red Bluff1 the conditional vendee of an automobile truck placed it in the custody of the defendant who was apprehended while using it in the unlawful transportation of intoxicating liquor after the rights of the conditional vendee had been terminated by default in payment. The defendant was prosecuted in the justice's court for violation of the Wright Act, found guilty, and the truck ordered to be forfeited and sold after proper notice. The conditional vendor, learning of the contemplated sale, petitioned the justice's court for release of the property but the court refused to entertain further jurisdiction of the matter. The petitioner then took a writ of prohibition to the Supreme Court and the case was there considered as one arising upon a writ of review2 resulting in the annulment of the judgment of the lower court because of its lack of jurisdiction to entertain a proceeding in equity or one involving the amount here in controversy. To decide what would have happened had the proceeding been prosecuted in the proper court was not germane to the instant decision and the Supreme Court left it problematical.

Much has been said concerning the rights of an innocent lienor3 under the various state laws which provide for the confiscation and forfeiture of vehicles used in the unlawful transportation of intoxicating liquor. Suffice it to say that the question is largely one of statutory construction and the statutes of most states are qualified

1 (November 6, 1923) 66 Cal. Dec. 563, 220 Pac. 306.

2 The court will look toward the ultimate result rather than consider itself constrained to observe the technicalities of pleading. Where the application for a writ of prohibition brings up the complete record of the case so far as relates to the point involved, and when the record presents to the appellate tribunal a sufficient case for consideration as one arising upon a writ of review, the case will be considered and the court will give such relief as the record warrants. Van Hoosear v. Railroad Commission (1922) 189 Cal. 228, 207 Pac. 903; Traffic Truck Sales Co. v. The Justice's Court, supra, n. 1.

8 The "lien" referred to in the National Prohibition Act and in state enforcement statutes is not a lien in the strict common law sense in that it does not require that the lien holder be in possession of the property. "Lien" is used in these statutes as the equivalent of encumbrance. 72 Pennsylvania Law Review, 181, 182, and cases there cited. But see United States v. Montgomery (1923) 289 Fed. 125, where a conditional vendor was denied protection under § 26, Title II, National Prohibition Act, upon the theory that a conditional sales contract is not one creating a lien within the meaning of the statute in favor of the seller.

47 Cornell Law Quarterly, 269; 72 Pennsylvania Law Review, 181; 34 Harvard Law Review, 200; Blakemore on Prohibition, p. 401.

534 Harvard Law Review, 200, 201, where there is a discussion of the principles of construction which are proper to apply in the interpretation of these statutes.

in such a way as to protect the interest of one in the position of the plaintiff in the instant case. The National Prohibition Act provides that "The court . . . unless good cause to the contrary is shown by the owner, shall order a sale . . . of the property seized, and the officer making the sale . . . shall pay all liens as being bona fide and as having been created without the lienor having any notice that the carrying vehicle was being used or was to be used for illegal transportation of liquor, . . ." If the government proceeds under this act an innocent conditional vendor will be protected upon the

The rights of a lienor or owner without knowledge or notice or negligence have generally been protected under state law. Blakemore on Prohibition, p. 401. Alabama-One Liberty Roadster v. State (1921) 205 Ala. 193, 89 So. 273; One Packard Automobile v. State (1920) 204 Ala. 435, 86 So. 21; Briscoe Motor Car Co. v. State (1920) 204 Ala. 231, 85 So. 475; One Ford Automobile v. State (1919) 203 Ala. 517, 84 So. 760. Florida-Spratt v. Gray (1921) 81 Fla. 200, 87 So. 760. Georgia-Matson & Healy v. State (1920) 25 Ga. App. 266, 103 S. E. 37; Whites v. State (1919) 98 S. E. 171. IdahoNaylor v. Simmons (1920) 33 Ida. 320, 194 Pac. 94. Maine-State v. Paige Touring Car (1921) 120 Me. 496, 115 Atl. 275; State v. One Buick Automobile (1923) 122 Me. 280, 119 Atl. 666. Mississippi-Vance v. State (1922) 93 So. 881; West Barnes Motor Co. v. State (1923) 95 So. 675. Montana-Green v. Bird (1922) 62 Mont. 408, 205 Pac. 241. Nebraska-Melcher v. State (1923) 192 N. W. 502. North Carolina-Skinner v. Thomas (1916) 171 N. C. 98, 87 S. E. 976; South Georgia Motor Co. v. Jackson (1922) 184 N. C. 328, 114 S. E. 478. Oklahoma-One Hudson Super-Six Automobile v. State (1920) 77 Okl. 130, 187 Pac. 806; Boles v. State (1920) 77 Okl. 310, 188 Pac. 681; Rouse v. State (1921) 80 Okl. 194, 195 Pac. 498; Hoskins v. State (1921) 82 Okl. 255, 200 Pac. 168. South Carolina-Seignious v. Limehouse (1917) 107 S. C. 545, 93 S. E. 193. Utah State v. Davis (1919) 55 Utah, 54; 184 Pac. 161. West Virginia-State v. Hall (1922) 91 W. Va. 648, 114 S. E. 250. For the various theories upon which these cases have been decided see articles cited supra, n. 4. In some jurisdictions the statutes are unqualified and the property is subject to forfeiture regardless of the innocence of the lienor. This result is reached upon the theory that the property itself is the offender, the proceedings being in rem. Landers v. Commonwealth (1919) 126 Va. 780, 101 S. E. 778. This suggests the idea of the deodand. But such statutes are constitutional and are upheld as being a proper exercise of the police power and not depriving the owner of his property without due process of law. State v. Peterson (1920) 107 Kan. 641, 193 Pac. 342; State v. Stephens (1921) 109 Kan. 254, 198 Pac. 1087; King v. Commonwealth (1920) 127 Va. 800, 102 S. E. 757; Pennington v. Commonwealth (1920) 127 Va. 803, 102 S. E. 758; Robinson Cadillac Motor Car Co. v. Ratekin (1920) 104 Neb. 369, 177 N. W. 337.

7 National Prohibition Act, Title II, § 26.

8 In most cases the government seems to be left to its choice between acting under the National Prohibition Act or under the previous legislation for the enforcement of federal revenue taxes. Blakemore on Prohibition, p. 372. This is an important practical matter because the penalties are less severe under the Volstead Act than under the former legislation. For a time there were two conflicting lines of decision in the lower federal courts as to whether the Volstead Act had worked a repeal of the prior legislation overlapped by it, with no final decision of the Supreme Court to determine the difficulty. The question would probably have been settled_by_United States v. Yuginovich (1921) 256 U. S. 450, 65 L. Ed. 679, 41 Sup. Ct. Rep. 551, had not Congress thrown the courts back to their original conflict by the Act of 1921; see 11 California Law Review, 53, 55. Various solutions have been offered; see 72 Pennsylvania Law Review, 181, 183. In United States v. Torres (1923) 291 Fed. 138, it was held that after the government had obtained a

theory that Congress intended only to penalize the wrongdoer. Will this view of the law be followed by a California state court proceeding under the Wright Act?

A proper discussion of this problem demands brief comment upon the state of affairs which necessitates the existence of the Wright Act in this state. The provision in the Eighteenth Amendment that "The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation" does not mean that the power is joint or that legislation thereunder by Con

conviction under the Volstead Act it was barred from proceeding under the Revenue Act to obtain a forfeiture. But the intimation is that the prosecution could have been had under the prior legislation in the first place had the government so elected.

United States v. Sylvester (1921)_273 Fed. 253; Jackson v. United States (C. C. A. 9th Circ.) San Francisco Recorder, January 14, 1924; Oakland Motor Car Co. v. United States, De Martini Motor Truck Co. v. United States, Howard Automobile Co. v. United States, H. O. Harrison Co. v. United States (C. C. A. 9th Circ.) San Francisco Recorder, January 14, 1924; United States v. Torres, supra, n. 8; Contra-United States v. Montgomery, supra, n. 3, upon the theory that a conditional vendor's interest is not a lien within the meaning of the statute. "It would appear from a survey of the decisions of the several states where acts similar to the National Prohibition Act are in force that, if the proceeding is to be had under the act, the conditional vendor will be protected." 72 Pennsylvania Law Review, 183. See supra, n. 6, for state decisions under acts similar to the Volstead Act.

How may the rights of the conditional vendor be protected without defeating the policy of the law? In Jackson v. United States, supra, the court says, "If, in the opinion of the court, the property will not sell for enough at forced sale to satisfy the claim of the vendor, no sale should be ordered and the property should be restored absolutely and unconditionally to the owner. If, on the other hand, in the opinion of the court the property will bring more than the claim of the vendor, it should be ordered sold, but upon condition that no sale should be made for less than the amount of the unpaid purchase price. If a bid for more than that amount is not forthcoming, the property should be restored to the owner; if a larger amount is bid, the property should be sold and the owner paid the full amount of his claim out of the purchase price without deductions of any kind. This procedure will protect the rights of all concerned and impair the rights of none." Under this procedure, however, a conditional vendor who is unfortunate enough to have sold his property to a violator of the Volstead Act, may be deprived of the election of remedies to which he would normally be entitled in California upon the breach of a conditional sales agreement, namely, either to enforce the payment of the balance of the purchase price or to recover possession of the property. Silverstin v. Kohler & Chase (1919) 181 Cal. 51, 183 Pac. 451, 9 Am. Law Rep. 1177; Youmashef v. Weisgerber (1923) 65 Cal. Dec. 424, 425, 214 Pac. 961. But see the interesting case of Chicago Clock Co. v. Tobin (1899) 123 Cal. 377, 55 Pac. 1007, as to the possibility of a vendee who has defaulted bringing a cross action to recover the installments paid in where the vendor elects to retake possession. If it so happens that the balance remaining unpaid on the purchase price is of an amount which can be realized from a sale of the vehicle, the conditional vendor must remain satisfied with obtaining the amount due him under the contract. This deprives him of an opportunity to elect to retake the property. If, however, the automobile is returned to him by the Federal authorities a conditional vendor would seem to be in as good a position as he would be normally. It will be a question of fact in each case whether or not enough has been paid by the conditional vendee under the contract to deprive such a vendor of his election of remedies.

10 U. S. Const., Eighteenth Amendment, § 2.

gress must be approved by the states to be effective. Nor does it mean "that the power to enforce is divided between Congress and the several states along the lines which separate or distinguish foreign and interstate commerce from intrastate affairs. . . The power confided to Congress. . . is in no wise dependent on or affected by action or inaction on the part of the several states or any of them."11 As to the states the Eighteenth Amendment is merely in the nature of a limitation12; and in the exercise of its police power a state may legislate for the enforcement of the amendment by different means so long as they tend to effectuate the end in view, and state legislation which differs from the federal enactment is valid so long as it is not inconsistent with the amendment or the National Prohibition Act-so long as it is appropriate legislation.13 It was held in California that federal legislation under the Eighteenth Amendment could not be enforced through the courts of this state unless state laws be first enacted to vest them with jurisdiction.1 This is accomplished by the Wright Act whereby California recognizes the requirements of the Eighteenth Amendment for its concurrent enforcement by Congress and the several states and, to that end, adopts the penal provisions of the Volstead Act by reference.15

Although the Supreme Court of California has decided that the language of the Wright Act to the effect that "the penal provisions of the Volstead Act are hereby adopted as the law of this state" does not adopt for the state courts the procedural features of the federal statute,1 16 the language of the Volstead Act which enables the owner of a vehicle to show good cause why his property should not be forfeited and which provides for the payment of bona fide liens to innocent lienors in preference to allowing an absolute forfeiture to the state, is language given to the description of the penalty which will ensue if a vehicle is used in the unlawful transportation of intoxicating liquor. It is submitted that the only reasonable construction which can be put upon this penal provision by the state courts must be in accord with that found in the federal decisions.

11 National Prohibition Cases (1919) 253 U. S. 350, 387, 64 L. Ed. 946, 40 Sup. Ct. Rep. 486. See note in 10 California Law Review, 70.

12 Blakemore on Prohibition, p. 18, and cases there cited. Woods v. City of Seattle (1921) 270 Fed. 315; Carse v. Marsh (1921) 36 Cal. App. Dec. 73. (See infra, n. 14).

13 Blakemore on Prohibition, pp. 19-26 and cases there cited. Ex parte Polizzotto (1922) 188 Cal. 410, 205 Pac. 676; Harris v. Superior Court (1921) 63 Cal. Dec. 595, 196 Pac. 895; People v. Collins (1921) 54 Cal. App. 531, 202 Pac. 344; People v. Capelli (1921) 55 Cal. App. 61, 203 Pac. 837.

14 Carse v. Marsh, supra, n. 12. But see Carse v. Marsh (1922) 189 Cal. 743, 210 Pac. 257, where the superior court was held to have jurisdiction to entertain an action to abate a nuisance under the Volstead Act and may make and enforce restraining orders issued in such an action; see 10 California Law Review, 70.

15 Wright Act, Cal. Stats. 1921, p. 79; In re Burke (1923) 65 Cal. Dec. 77, 212 Pac. 193; Traffic Truck Sales Co. v. The Justice's Court, supra, n. 1; People v. Frankovich (1923) 42 Cal. App. Dec. 325, 221 Pac. 671.

16 Ex parte Brambini (1923) 66 Cal. Dec. 306, 218 Pac. 569.