RECENT CASES. 23 r mortgaged by a lessee to his lessor as security for rent, on the ground that, title being in the lessor, the agreement between the lessor and lessee for a lien upon the crops operates as a reservation of title in the lessor to the products of the land. Condernian V. Smith, 41 Barb. 404, seems to be inconsistent with the principal case. There a lessee of a farm and cows mortgaged to the lessor the butter and cheese to be made during the season, and the mortgage was held good as against a subsequent purchaser of the cheese at an execution sale. The doctrine of reservation of title does not apply there, for the mortgage was made subsequently to the lease and was not a part of it. Of the question whether crops not yet sown have a potential existence, see authorities col- lected in the American note, Benjamin on Sales, 6th American edit., p. 86. Contract — Restraint of Trade. — Held, that a combination of wholesale dealers to control the price of beer within a city is not void as in restraint of trade. Anheuser Busch Brewing Ass'n v. Houck, 27 S. W. Rep. 692 (Tex.). The Pennsylvania court has just reached a contrary result in the case of Wester v. Continental Breiving Co., 29 Atl. Rep. 102. See 8 Harvard Law Review, p. 176. The decision here is rested on the ground, that, though beer is a staple of commerce, it is yet not such a commodity that restriction of its sale will be declared illegal by the court. Constitutional Law — Elevated Railroads in Streets — Taking Private PROPERry. — A railway company built abutments in the centre of a street to be used as the approach for elevated railway tracks. The abutting land owners did not own the fee in the bed of the street. Held, this was not a taking of the property of abutting landowners within the meaning of the article of the Constitution which prohibits the taking of private property for public use without compensation, so as to entitle the landowners to enjoin the completion of the same until compensation be paid for the injury. Garrett v. Lake Roland El. Ry. Co., 29 Atl. 830 (Md.), Bryan, J. dissenting. The decision seems entirely correct. The sound distinction is taken between con- sequential damages arising from the defendant's act, and an actual taking. There is no taking, it is said, without some actual appropriation or invasion of the land, though there is a remedy at law for injuries done to the property provided by statute and by the ordinance incorporating the defendant company. The case contains a full review of the American authorities. Constitutional Law — Interstate Commerce — Eminent Domain. — Con- gress incorporated the defendant company for the purpose of constructing a bridge across the Hudson River between the States of New York and New Jersey "in order to facilitate interstate commerce."' The plaintiff objected to the company's taking his land for the approaches to the bridge under the right of eminent domain. Held, Congress has power either directly or through a corporation created for the purpose to construct bridges over navigable waters between States, and to take private lands making just compensation " in order to facilitate interstate commerce." Suxton V. North River Bridge Co., 14 Sup. Ct. Rep. 891. The power of Congress to incorporate was little called for in former times, and doubts were entertained concerning it. Its frequent exercise to-day in keeping pace with the demands of commerce leaves no question as to its existence, and furnishes a notable instance in refutation of the claim that striking out a power is equivalent to prohibition. Mr. Madison proposed in the Constitutional Convention that Congress should be given the power to incorporate, but the proposition was defeated without much discussion. 5 Ell. Deb. 543, 544. That which was then expressly denied is now allowed by implication, if exercised in carrying out any of the delegated powers. 117 U. S. 151, 154; 125 U. S. 12, 13; 127 U. S. 39,40. "The power of creating a corporation," said Chief Justice Marshall in McCulloch . Maryland, ^V^Yvczt. ^11, " though appertaining to sovereignty, is not, like the power of making war, or levying taxes, or of regulating commerce, a great substantive and independent power, which cannot be implied as incidental to other powers, or used as a means of executing them. It is never the end for which powers are exercised, but a means by which other objects are accomplished." The test of the constitutionality of an incorporating act passed by Congress is fairly obvious. Hartshorne's Commerce Clause, p. 29. Constitutional Law — Interstate Commerce — License Tax. — A canvass- ing agent of a portrait-maker at Chicago violated an ordinance of a city of Pennsyl- vania by soliciting orders for portraits without having paid a license tax. Held, whether the tax was levied for general revenue purposes or under the police power of the State, it is a direct burden upon interstate commerce, and therefore invalid. Brennan v. City of Titusville, 14 Sup. Ct. Rep. 829. As many of the State statutes imposing a license tax upon peddlers and canvassers are phrased in general terms, it is well to be reminded of the limited authority by which they are enacted.
