JUDICIAL LEGISLATION. 195 or extended. And this involves the result of substantial develop- ment and growth. 1 This point may be illustrated by the modern cases which deal with the question, on which there has been a difference of opinion, 2 whether a sleeping-car company is to be held to the liability of an innkeeper. The question of these cases would be precisely the same whether they arose in a code State or under the common law. The process would in either event be that of defining an inn, and of ascertaining whether a sleeping-car had the essential attributes of an inn, as the term was used by those who laid down the rule. 3 Yet the result, the judicial declaration that sleeping-car companies are or are not liable as insurers, has in either event the practical effect of judicial legislation in our sense. A rule has been laid down which regulates the rights and duties of a class of things which were not in existence when the law about innkeepers arose. To say that there was at that time a rule of law dealing with sleeping-cars would be to speak in a merely figurative sense. It could as truly be said that the law of the electric telegraph or the railway existed in the seventeenth century. It would be easy to give instances of exceptions read bodily into statutes by judicial construction. The fictions by which the old lawyers evaded the Statute de Donis ; the doctrine that a part performance takes a case out of the Statute of Frauds, 1 There is a suggestive passage in Mill's Logic which points to the similarity in sub- stance, in spite of the different form, of the reasoning in case law and in statute law. In a famous chapter the author points out how all syllogistic reasoning involves in form a petitio principii, and really rests on a process of induction, the syllogism being merely the final step in the process, the memorandum by which the result of previous inductions is registered. " This view of the functions of the syllogism," he adds, " is confirmed by the consideration of precisely those cases which might be expected to be least favorable to it, namely, those in which ratiocination is independent of any previous induction. ... In these cases [the general commands of statute law] the generalities are the orig- inal data, and the particulars are elicited from them by a process which correctly resolves itself into a series of syllogisms. The real nature, however, of the supposed deductive process is evident enough. The only point to be determined is . . . whether the legislator intended his command to apply to the present case, among others, or not. This is ascertained by examining whether the case possesses the marks by which . . . the cases . . . meant . . . may be known. . . . The operation is not a process of in- ference, but a process of interpretation." (Mill's Logic, 8th ed., 146-7.) - See Blum v. So. P. P. C. Co., 1 Flippin (U. S.Dist. Ct.), 500; P. P. C. Qo.v. Lowe, 28 Neb. 239; 20 Am. L. Rev. 159. 8 The fact that sleeping-cars are modern inventions would not necessarily lead to a negative answer, since the original rule did not refer merely to inns then in existence, <ir to such inns as precisely resembled those.
