RECENT CASES i73 case a recovery without showing special injury, a minimum lump sum, and increased damages dependent upon culpability look toward a penalty. But courts divide as to whether the statute is penal within the meaning of private international law. Some confine penal to the strictly criminal aspect or to where its characteristics, punishment, etc., predominate. Huntington v. Attrill, 146 U. S. 657, 13 Sup. Ct. Rep. 224; Strait v. Yazoo, etc. R. Co., 209 Fed. 157, 126 C. C. A. 105; HUl V. Boston, etc. R. Co., 77 N. H. 151, 89 Atl. 482;Malloy v. Amer. Hide &° Leather Co., 148 Fed. 482; Knight v. Ry. Co., 108 Pa. 250; Louis- ville, etc. R. Co. V. McCaskell, 98 Miss. 20, 53 So. 348; Gullege Bros. Lumber Co. v. Wenatchee Lane Co., 122 Minn. 266, 142 N. W. 305; Chesapeake, etc. R. Co. v. Amer. Exch. Bank, 92 Va. 495, 23 S. E. 935; Whitlow v. Nashville R. R. Co., 114 Tenn. 344, 84 S. W. 618; Boyce v. Wabash R. Co., 63 la. 70, 18 N. W. 673; San Louis Obispo v. Hendricks, 71 Cal. 242, 11 Pac. 682. Others construe any statute penal which is not predominatingly compensatory. Christilly v. Warner, 87 Conn. 461, 88 Atl. 711; Adams v. Fitchburg R. R. Co., 67 Vt. 76, 30 Atl. 6ST,Raisor v. V. C.^&rA. Ry. Co., 215 lU. 47, 74 N. E. 69; Dale v. Atchi- son, etc. R. Co., 57 Kans. 601, 47 Pac. 521 ; but see Battese v. Union Pac. R. Co., 170 Pac. 811; O'Reilly v. N. Y.&N. E. R. Co., 16 R. I. 388, 17 Atl. 906; but see Gardner v. N. Y. 6" N. E. Ry. Co., 17 R. I. 790, 24 Atl. 831 ; Plymouth First Nat. Bank v. Price, 33 Md. 487. The act in question has been variously con- strued. Se-^ cases cited supra. It is submitted that the principal reasons sus- taining the latter view are formal rather than substantial. That the only action for death at common law was criminal has made difficult the recognition of the above recovery as a tort action. See 21 Harv. L. Rev. 383, 386; but despite penal e; marks its essence is tort compensation as the historical analy- sis by the court shows. Loiicks v. Standard Oil Co. of N. Y., supra, 199. The contention that it is against the public policy of the trial state more often ap- pears as an excuse than a reason. It has been argued that the trial state is bound by the highest decision of the enacting state; but this is not so, since the matter is purely one of the law of the fonun. See Huntington v. Attrill, supra, 669, 683. See also Westlake, Private International Law, 5 ed., 318 b. Note also that while some state courts have assumed that Massachusetts has settled that this is a penal statute, the Massachusetts court leaves the matter open. Boott Mills v. B. 6* R. R. Co., 218 Mass. 582, 592, 106 N. E. 680. Constitutional Law — Due Process — Prohibition of Making Hand- ing Over Tips A Condition of Employment. — A state statute made it a misdemeanor for an employer to require his employee to hand over tips in consideration, or as a condition, of employment. Held, that the statute was in violation of the due process clause of the Fourteenth Amendment. Ex parte Farb, 174 Pac. 320 (Cal.). As imder the present statute the employer and employee cannot contract freely, it must be justified under the police power. Bailey v. Alabama, 219 U. S. 219, 31 Sup. Ct. Rep. 145. See 28 Harv. L. Rev. 496. To keep the public in ignorance, when knowledge would undoubtedly cause tipping to cease, is fraud, and as such subject to regulation or prohibition. Plumbley v. Mass., 155 U. S. 461, 15 Sup. Ct. Rep. 1^4; Powell v. Penn., 127 U. S. 678; Burdick v. People, 149 lU. 600, 36 N. E. 948. See 31 Harv. L. Rev. 490. Such legislation, if it tends to the result desired, will be overthrown, only when utterly unreasonable. Otis v. Parker, 187 U. S. 606, 23 Sup. Ct. Rep. 168; McLean v. Arkansas, 211 U. S. 539, 547, 29 Sup. Ct. Rep. 206, 208; Rast v. Denman, 240 U. S. 342, 357, 36 Sup. Ct. Rep. 370, 374. However, the prin- cipal case presents a new criterion, namely, reasonable regulation, where prac- ticable, is the only method by which incidental evils of legitimate business may be overcome. Under this rule it seems that a different result would have been reached in the following cases. Otis v, Parker, supra; Powell v. Penn.,
