450 HARVARD LAW REVIEW. of less value, because his risk is greater. That he might also limit his liability by an express agreement as to its value, for the purpose of carrying at a smaller rate, would seem to be but a corollary of the former proposition, and no more against public policy. Conflict OF Laws — Application of State Statute of Limitations to Federal Statutes. — Held, that the right of a receiver of an insolvent national bank to enforce the liability of stockholders, though created by United States statute, is barred by the running of a State statute of limitations. Thompson v. German Ins. Co., 76 Fed. Rep. 892. The court rests its decision, without much discussion, upon the case of Campbell v. Have7'hill, 155 U. S. 610. Prior to that decision there was some conflict of authority. Hay den v. Oriental Mills, 15 Fed. Rep. 605, accord; Brtchell v. Hartford, 49 Fed. Rep. 372, contra. That the question has been justly settled seems clear, for the fact that Congress has created a new right should not operate so as to clear it of the defences to which a defendant in ordinary cases is entitled. Constitutional Law — Equal Protection of the Law. — An ordinance pro- vided that no further interments should be made in the city of San Francisco, except by those who already owned lots purchased for that purpose. Held, unconstitutional. Such burials may be wholly prohibited, but, " while they are permitted within a district, the privilege cannot be limited to one class of citizens." Ex parte Boken, 47 Pac. Rep. 55(Cal.). The court thus ignores the fundamental proposition that special legislation is not necessarily unequal legislation. See Barbierv. Conolly^ 113 U. S. 27. The ordinance here appears to provide most wisely for the gradual doing away with burials in the city, without causing great injury to those who have already invested their money in cemetery lots. But if this were not so, the measure would not be unconstitutional unless the legislature has acted arbitrarily. The case is an extreme example of the well intentioned officiousness of a court in taking upon itself the responsibilities of government. Constitutional Law — Interstate Commerce. — A State statute provided that no liquors containing alcohol should be bought of any one except county dispensers; that the State commissioner, who had authority to supply the county dispensers, should purchase liquors for this purpose, preferring in his purchases home producers to those of other States ; and that only such liquors should be furnished to the dispensers for general sale as had first been examined by the State chemist and pronounced pure. Held, that the law was an unconstitutional interference with interstate commerce. Scott V. Donald, 17 Sup. Ct. Rep. 265. See Notes. Constitutional Law — State Regulation of Tolls on Turnpike Roads. — In 1890, the Kentucky legislature passed a statute which provided that a certain turn- pike corporation should charge no tolls in excess of those prescribed by the statute. This act of 1S90 was disregarded by the turnpike company, and a bill was filed to compel it to respect the provisions of the act. The defendant alleged that, if the statutory rates of toll were enforced, its receipts would shrink to such an extent that it cf)uld neither maintain its road in a fit condition for public travel, nor pay any divi- dends to its stockholders. Held, that the act of the Kentucky legislature amounted to depriving the defendant of property without due process of law, and for that reason was unconstitutional. Covington ^ 'Lexington 7i7-npike Koad Co. v. Sandford, 17 Sup. Ct. Rep. 198. Previous to the above case, the important question involved had been thoroughly discussed only in the case of Reagan v. Mercantile Trust Co., 154 U. S. 362. That case agrees substantially with the present one, and the two, taken together, seem to lay down the following proposition. Where a State legislature, or a commission appointed by a State legislature, fixes such a schedule of charges that those in that public busi- ness to which the schedule applies are unable, without loss to themselves, to perform their duties to the public and to their stockholders, then the action of the State amounts to depriving persons of property without due process of law; provided (and this is important) that the inability to perform public and private duties is caused by the action of the State, and is not attributable to other and wholly external causes, such as bad times, bad business management, etc. The above proposition seems to contain a sensible rule for answering the question as to whether a State has or has not acted arbitrarily. It is to be noticed, first, that inability to pay dividends will not of itself be a ground for complaining against a State's action; and, secondly, that it must be clear that there are no external causes which are making rates, which otherwise would be reasonable statutory provisions, appear unreasonable and in- sufficient.
