its rates to the point that they are again just and reasonable.19 Of course, the converse is true as to contract rates which changing conditions may render too high and unjust and unreasonable to the public.20 These principles apply equally to contracts which for any reason become discriminatory.21 As stated in a recent case the public service acts have not changed the law in this respect.22

Obviously, a contract the performance of which thus conflicts with the legal duty owed by the utility enterprise to the public is unlawful and outside the protection of the contract clause of the State or Federal Constitution.

Quære: Would it not be desirable, in view of the modern public service acts empowering the commissions to restrict competition, to treat all long term contracts fixing rates for public service as void ab initio, because inherently tending to violate the basic policy of regulation of public utility rates as herein explained.23

ADMINISTRATION

RECENT CASES

- RES ADJUDICATA -EFFECT OF DECREE OF PROBATE COURT ON INTESTATE REALTY. An intestate decedent, domiciled in Illinois with all his real and personal property in that state, left a son and several brothers and sisters all domiciled in Kansas. The Illinois county court, with probate jurisdiction over his estate, decreed after service by publication on the non-residents that the brothers and sisters were the heirs.

The personal property was distributed accordingly. The son did not appear. He now brings a bill in equity in the Illinois Circuit Court to obtain the real estate as sole heir. Held, he is not estopped by the probate adjudication. Mosier v. Osborn, 119 N. E. 924 (Ill.).

At common law realty passed directly to the heir. But in Illinois by statute realty is treated in the same manner as personalty for the law of descent of real property. See 1917, HURD'S Rev. Stat. IlL., c. 39, § 1. The Illinois Constitution also says that the county court, having probate juris

19 Oklahoma Natural Gas Co. v. Corporation Commission of Oklahoma (Okla.); P. U. R. 1918 D, 515 (1918); Northampton, Easton & Washington Traction Co. v. Board of Public Utility Comm'rs, 102 Atl. 930 (N. J.) (1918); State Public Utilities Commission v. Chicago & West Towns Ry. Co., 275 Ill. 555; 114 N. E. 325 (1916); City of Louisiana v. Louisiana Water Co. (Mo. Pub. Serv. Comm.) P. U. R. 1918 B,

774.

For these principles applied to a municipal franchise see Atlantic Coast Electric Ry. Co. v. Board of Public Utility Comm'rs, 104 Atl. 218, 220 (N. J.) (1918).

20 Whitcomb v. Duquesne Light Co. (Pa. Pub. Serv. Com. 1916), P. U. R. 1917 B,

979.

21 State ex rel. American Union Telegraph Co. v. Bell Telephone Co. of Missouri, 22 ALBANY LAW JOURNAL, 363 (St. Louis Cir. Ct.) (1880); The Inter-Ocean Publishing Co. v. The Associated Press, 184 Ill. 438, 450; 56 N. E. 822 (1900); Birmingham Waterworks Co. v. Brown, 191 Ala. 475, 67 So. 613 (1914).

22 See Atlantic Coast Electric Ry. Co. v. Board of Public Utility Comm'rs, supra.

23 See Manitowoc v. Manitowoc & Northern Traction Co., 145 Wis. 13, 129 N. W. 925 (1911); Wolverton v. Mountain States Telephone & Telegraph Co., 58 Colo. 58, 142 Pac. 165 (1914); Atlantic Coast Electric Ry. Co. v. Board of Public Utility Comm'rs, supra.

diction, shall be a court of record. See 1917, HURD's Rev. STAT. ILL., Art. 6, § 18. Furthermore, in the matter of admitting to probate wills involving realty, Illinois has held that the county court decision is final and not subject to collateral attack. James White Memorial Home v. Price, 195 Ill. 279, 62 N. E. 872. Keister v. Keister, 178 Ill. 103, 52 N. E. 946. Then logically in intestate succession the county court decree should be as binding as in testate succession, for if one is a probate matter, the other also is probate. The decree of the court for probate matters on a probate question should then be binding on an equity court in a collateral attack. Stone v. Wood, 16 Ill. 177; Hanna v. Yocum, 17 Ill. 77; Lynch v. Baxter, 4 Tex. 431; Klingensmith v. Bean, 2 Watts (Pa.), 486; State v. McGlynn, 20 Cal. 233. And as the county court judgment was given in proceedings with due service according to the Illinois statute, it should be binding on the world as probate proceedings are in rem. Mulcahey v. Dow, 131 Cal. 73, 63 Pac. 158; Greenwood v. Murray, 26 Minn. 259, 2 N. W. 945; Fry v. Taylor, 1 Head (Tenn.), 594; State v. McGlynn, 20 Cal. 233; Liginger v. Field, 78 Wis. 367, 47 N. W. 613. Hence the case seems to be a remnant of the common-law view of intestate succession and therefore wrong.

BILLS AND NOTES

66

- CHECKS NEGLIGENCE OF DRAWER YOUNG VERSUS GROTE. The plaintiff's confidential clerk, whose duty it was to prepare checks for signature, presented a check blank as to words of amount but having "£2. o. o" in the space provided for figures. The plaintiff signed. The clerk subsequently wrote one hundred and twenty pounds" in the space provided for words, inserted "1" and "o" on either side of the “2”", cashed the check for £120 with the drawee bank, and absconded. The plaintiff sues the bank for the amount charged to his account less £2. In the Court of Appeal it was held he could recover. The case was subsequently carried to the House of Lords on appeal. Held, he could not recover. London Joint Stock Bank, Ltd., v. Macmillan, 145 L. T. 163.

For discussion of this case see 31 HARV. L. REV. 779, with which the final decision is in harmony.

CONSTITUTIONAL LAW · ADVISORY OPINIONS APPEALS. The Workmen's Compensation Act authorizes the Industrial Commission to certify to the Appellate Division of the Supreme Court "questions of law involved in its decision." The Commission certified a question as to the validity of certain rules it proposed to promulgate. Certain employers were allowed to appear and file briefs as amici curiae. The Appellate Division answered the question in favor of validity. The interveners appealed to the Court of Appeals. Held, appeal dismissed for want of jurisdiction. In re Workmen's Compensation Fund, 119 N. E. 1027 (N. Y.).

In the absence of a constitutional provision, a statute requiring the judiciary to render advisory opinions at the request of the other departments is held unconstitutional, because it imposes duties not properly judicial. Rice v. Austin, 19 Minn. 103; State v. Baughman, 38 Ohio St. 455. Even where the Constitution requires opinions, it is generally held that the advisory opinion has not the quality of judicial authority. See Taylor & Co. v. Place, 4 R. I. 324, 362; Laughlin v. Portland, 111 Me. 486, 497, 90 Atl. 318, 323; Opinion of the Justices, 126 Mass. 557, 566. See also J. B. THAYER, “American Doctrine of Constitutional Law," 7 HARV. L. REV. 129, 153; H. A. DUBUQUE, "The Duty of Judges as Constitutional Advisers," 24 Aм. L. REV. 369, 374, 375. But see contra, In re Senate Resolution, 12 Colo. 466, 467, 21 Pac. 478, 479. In the principal case, advisory opinions were not required by the Constitution or by the statute, which was construed to authorize the Industrial Commission to certify on questions arising only out of litigated con

troversies. WORKMEN'S COMPENSATION ACT, § 23. And there was no litigation before the Commission. So neither an advisory opinion nor a binding decision could be given by the Appellate Division on the question certified. This case, however, raises an interesting point. If an advisory opinion were given in pursuance of a constitutional provision, could that opinion be reviewed by a higher court? Such opinions are generally given without a hearing and without the aid of research and argument by counsel. However, if the advisory opinions are rendered after the filing of briefs by amici curiae, as in the principal case, they might have some judicial authority and so be reviewable. The only objection is that there is no judicial proceeding between parties litigant which the ultimate court is asked to review. See H. A. DuBUQUE, "The Duty of Judges as Constitutional Advisers,” 24 Am. L. Rev. 369 et seq., for a valuable historical discussion of advisory opinions.

CONSTITUTIONAL LAW - INTERSTATE COMMERCE- CHILD LABOR LAW. The federal Child Labor Law prohibits the transportation by interstate commerce of certain products of child labor. ACT SEPT. 1, 1916, 39 STAT. 675, c. 432 (COMP. STAT. 1916, §§ 8819 a-8819 f). A bill to enjoin threatened prosecutions of children was brought by their father, who alleged that the act is not a regulation of interstate and foreign commerce and that it contravenes the Fifth and Tenth Amendments to the Constitution. In support of the act the District Attorney relied upon the commerce clause of the Constitution. Held, the act is unconstitutional and the order allowing an injunction is affirmed. Hammer v. Dagenhart, 38 Sup. Ct. R. 529.

For a discussion of this case, see the article by Thurlow M. Gordon, "The Child Labor Law Case," p. 45.

CONSTITUTIONAL LAW STATE AND FEDERAL JURISDICTION MILITARY NECESSITY. - - A man in the naval service of the United States while acting under orders from a competent authority to proceed with dispatch broke the speed laws of the state. Held, that state laws regulating speed upon the highways are subordinate to exigencies of military operations in cases where military necessity exists. State v. Burton, 103 Atl. 962 (R. I.).

The activities of the navy are within the control of the federal government. U. S. CONST., Art. I, § 8, ¶ 14. Unless clearly illegal on its face the order of a superior officer protects the subordinate. United States v. Clark, 31 Fed. 710. But it is not per se a justification nor is he removed from the jurisdiction of the civil authorities. Mitchell v. Harmony, 13 How. (U. S.) 115; Dow v. Johnson, 100 U. S. 158. Control of vehicles upon the highway falls within the police power of the state. State v. Swagerty, 203 Mo. 517, 102 S. W. 483. But the state cannot interfere with the due exercise of the federal authority. McCulloch v. Maryland, 4 Wheat. (U. S.) 316. Within its sphere the federal government transcends the police power of the state. Ohio v. Thomas, 173 U. S. 276. The necessities of war will justify a "private mischief." Commonwealth of Pa. v. Sparhawk, 1 Dall. (U. S.) 357. Winning the war is paramount to any rules for personal safety. But courts, even when recognizing federal superiority and the right of military authorities in case of military necessity to interfere with private rights, jealously guard their prerogative of judging whether there is such an emergency. Philadelphia Company v. Stimson, 223 U. S. 603, and cases cited.

CONTRACTS- DEFENSES PUBLIC POLICY AS A DEFENSE FOR NONPERFORMANCE. - The defendant refused to perform his part of a contract for a baby show on account of an epidemic of infantile paralysis. Held, the defendant was, as a matter of public policy, excused from performance. Hanford v. Conn. Fair Ass'n, Inc., 103 Atl. 888 (Conn.).

Mere impossibility never excuses performance of a contract, but unforeseen difficulties of performance due to domestic law, destruction of the specific subject matter of the contract, or to the death or illness of a party are sometimes defenses. 15 HARV. L. REV. 63. These defenses are equitable; if the parties had contemplated the particular contingency, they would have agreed that the contract should be justly modified or terminated thereby. See WALD'S POLLOCK ON CONTRACTS, 525, 536, 543. See also 15 HARV. L. REV. 418; 19 HARV. L. REV. 462. Reasonable fear of bodily harm arising subsequently to the making of the contract also excuses a party from performance. Lakeman v. Pollard, 43 Me. 463; Walsh v. Fisher, 102 Wis. 172, 78 N. W. 437; Sibbery v. Connelly, 22 L. T. R. 174. In a contract that is against public policy, however, the law denies recovery because the tendency of the contract was bad from the outset. Judd v. Harrington, 139 N. Y. 105, 34 N. E. 790; Egerton v. Brownlow, 4 H. L. 1. Obviously one who contracts to hold a baby show does no wrong thereby. In the principal case the court should not excuse performance on the ground of a demand by public policy, but because the parties, if they had contemplated the epidemic, would have agreed that such a happening would justly terminate the contract.

CONTRACTS - SUITS BY THIRD PERSONS NOT PARTIES TO THE CONTRACT SOLE BENEFICIARY. The deceased drew up his wife's will. She expressed her dissatisfaction with it in that the plaintiff, her niece, was not amply provided for by it. He promised thereupon that if she would sign the will as it stood, he would leave the plaintiff enough in his testament to make up the difference, and the wife accordingly executed the instrument. Thereafter, when the deceased came to die, it was discovered that his will provided in no way for the plaintiff. Held, that she could recover on the promise. Seaver v. Ransom, Ct. App. (N. Y.) October 1, 1918.

On a contract for the sole benefit of a third party the promisee may not recover more than nominal damages for the promisor's breach. Burbank v. Gould, 15 Me. 118; Watson v. Kendall, 20 Wend. 201; Adams v. Union R. R. Co., 21 R. I. 134, 137. Justice, therefore, demands that the beneficiary recover, since he alone suffers damage, and the promisor, otherwise, is permitted to retain valuable consideration, given for a promise never performed. The New York courts have been prevented from reaching this conclusion because of the rule laid down by former decisions, limiting the right of action by a beneficiary to cases, where the promisee owed him some duty. Vrooman v. Turner, 69 N. Y. 280, 283; Lorillard v. Clyde, 122 N. Y. 498, 25 N. E. 292; Sullivan v. Sullivan, 161 N. Y. 554, 56 N. E. 116. See 15 HARV. L. REV. 780-82. But to prevent injustice to some extent, the courts went to the length of declaring that a moral duty was sufficient to sustain such an action. Buchanan v. Tilden, 158 N. Y. 109, 52 N. E. 724; Matter of Kidd, 188 N. Y. 274, 80 N. E. 924; De Cicco v. Schweizer, 221 N. Y. 431, 117 N. E. 807. The principal case refuses to invoke such an absurdity. It virtually permits recovery by any sole beneficiary and disregards completely the restriction imposed by former cases.

DAMAGES NATURE AND ELEMENTS · COMPOUND INTEREST. — At a partnership settlement the defendant failed to disclose his ownership of certain stocks which were to be shared by the partners. The Supreme Court of Massachusetts awarded damages, with interest from the date of settlement to the date of the bill; and the case was recommitted to the master to ascertain the value of the stock, but the terms of the decree were to be settled before a single justice, who reported the case to the full court on the question whether compound interest may be computed from the date of settlement to the date of filing the bill, with a rest as of the date of filing the bill and interest there

after to the date of the decree, to prevent the fiduciary from acquiring unjust gain. Held, compound interest allowed. Arnold v. Maxwell, 119 N. E. 776 (Mass.).

Compound interest may be allowed in order to prevent a fiduciary from acquiring unjust gain. Schiefflin v. Steward, 1 Johns. (N. Y.) 620; Jennison v. Hapgood, 10 Pick. (Mass.) 77. But the law of the case is as handed down in the prior adjudication of the court; i.e., simple interest from the settlement to the bill. Arnold v. Maxwell, 223 Mass. 47, 111 N. E. 687. And the court now declares that decision to be the law of the case. Compound interest might have been awarded at the outset, but this decision is inconsistent with itself when it announces a former award of simple interest to be the law of the case and then proceeds to allow compound interest. The court may have been unconsciously invoking the Massachusetts rule that a decree might bear interest. East Tennessee Land Co. v. Leeson, 185 Mass. 4, 69 N. E. 351. See MASS. R. L. c. 177, § 8. However, the decision is still difficult to explain, since under the Massachusetts rule interest would be computed from the settlement to the bill with interest on that total from the date of the first decree, and not with a rest at the date of the bill. No interest at all would be allowed during the interval between the bill and the first decree.

ELECTIONS ELECTION CERTIFICATES BINDING TILL DIRECTLY OVERTURNED. Art. 4, Pt. 3, § 17 of the Maine Constitution provides for a referendum of any statute passed but not yet in force on petition of ten thousand electors filed with the Secretary of State within ninety days after the recess of the legislature. Each petition must be accompanied by a certificate of the city or town clerk stating that all the signatures on the petition are names of electors on the voting list. Within the ninety days a city clerk who had done such certifying wrote to the Secretary of State, saying that he had not ascertained whether all the petitioners had their names on the voting list. Held, the names of these petitioners should be counted. In re Opinion of the Justices, 103 Atl. 761 (Me.).

It is well settled that a certificate drawn in due form by the proper official is final and binding until it is directly, and not collaterally, attacked. In re Rothwell, 44 Mo. App. 215; State v. Kersten, 118 Wis. 287, 95 N. W. 120; Ryan v. Varga, 37 Ia. 78; Ewing v. Thompson, 43 Pa. St. 372; State v. Churchill, 15 Minn. 455; Warner v. Meyers, 4 Ore. 72; Morgan v. Quackenbush, 22 Barb. (N. Y.) 72; United States v. Arredondo, 6 Pet. (U. S.) 691. Indeed, even the officer issuing the certificate cannot issue a later valid certificate unless definitely allowed a reviewing power by statute. Bowen v. Hixon, 45 Mo. 340; Hadley v. Mayor of Albany, 33 N. Y. 603. In the principal case the city clerk might within the ninety days have made a formal cancellation or amendment in accord with facts upon the certificate and petitions. Until he did so, they remained valid. But to prevent a miscarriage of the intent of the constitutional provision the governor or some interested party may attack the certificate directly by quo warranto process. State v. Freeholders of Hudson County, 35 N. J. L. 269; State v. Chosen Freeholders of Camden, 35 N. J. L. 217; People v. Miller, 16 Mich. 56; Atherton v. Sherwood, 15 Minn. 225; State v. Churchill, 15 Minn. 455; Warner v. Meyers, 4 Ore. 72. Or it may be attacked by mandamus where such procedure is allowed. State v. Peacock, 15 Neb. 442, 19 N. W. 685; State v. Stearns, 11 Neb. 104, 7 N. W. 743; Flanders v. Roberts, 182 Mass. 524, 65 N. E. 902.

EVIDENCE CORONER'S VERDICT INDUSTRIAL BOARDS. In a proceeding before the Illinois Industrial Board to recover compensation under the Workmen's Compensation Act, a coroner's verdict was admitted in evidence to show the circumstances under which the deceased met his death. Held,