154 HARVARD LAW REVIEW. cral English counties lie, like islands, entirely within the boundaries of neighboring coun- ties. In Massachusetts, Cohasset is separated from the rest of Norfolk County by two intervening towns. For some time after the passage of the act authorizing the annexa- tion of certain suburbs to Boston, Brighton was a part of the city, though at no point con- tiguous thereto. Doubtless similar separations exist. It is submitted that the principal case is an instance of the assumption, on the part of a court, of a power to regulate a matter which might be more properly left, it would seem, to the discretion of the legis- lature. See Cooley, Const. Lim. (6th ed.) 587, 616, and cases cited ; i Dill. Mun. Corp. (4th ed.) § 185 and cases cited. Constitutional Law — Police Power — Examining Board. — A statute pro- vided for an examining board of plumbers consisting of three experienced plumbers, the chief inspector of plumbing and drainage of the board of health, and the chief engineer having charge of sewers. It further required all persons engaged in the business of employing or master plumbers to undergo an examination by said board as to their fit- ness for conducting such a business. Held (Peckham, O'Brien and Bartlett, JJ., dis- senting), the act is not void, but a valid exercise of the police power. People v. War^ den of City Prison, 39 N. E. Rep. 686 (N. Y.). The case shows a tendency in the New York court to retract from the position taken in People V. Marx, 99 N. Y. 377, and to recognize the bounds beyond which the judiciary cannot interfere with the doings of the legislature. The court takes the ground that where an act is intended and appropriate to accomplish the good of protecting the public health, the exercise of legislative discretion is not the subject of judicial review ; and that an act should, if possible, be taken as having been passed with this intent. In accord- ance with this view, the Supreme Court of the United States, in considering the validity of a statute prohibiting the sale of oleomargarine, has said, " If all that can be said of this legislation is that it is unwise, or unnecessarily oppressive to those manufacturing or selling wholesome oleomargarine, as an article of food, their appeal must be to the legis- Jature, or to the ballot-box, not to the judiciary. The latter cannot interfere without usurping powers committed to another department of government," Powell v. Pennsyl- vania, 127 U. S. 678. The judiciary of Kansas has in a late case failed to recognize this limitation, and has declared void an ordinance restricting the business of city scavengers to persons appointed by the city. Jn re Lowe, 39 Pac. Rep. 710. Constitutional Law — Railway Company — Regulation of Fares — Rea- sonableness. — Plaintiff below sued a railway company under a statute which fixed the maximum rateof fare at three cents per mile, and which gave a penalty to the passenger for each overcharge. The company made offers tending to prove that the statutory rate was unreasonable, as under it the company was unable to pay the interest on the capital invested. The offers were ruled out, and the plaintiff had judgment, which was afiirmed by the Supreme Court of Arkansas, and, on error, by the Supreme Court of the United States. St. L. &= S. F. Ry. Co. v. Gill, 1 5 Sup. Ct. Rep. 484. The act incorporating the company which built the road originally authorized a charge of five cents per mile; and defendant, having succeeded to the franchise by a mesne conveyance, claimed the same privilege. The court held that the right to fix the fare did not accompany the property in its transfer to a purchaser, in the absence of express provision to that effect in the statute, citing Morgan v. Louisiana, 93 U. S. 217; Wilson v. Gaines^ 103 U. S. 417; and Railway v. Miller 114 U. S. 176, as authority. The court intimated that legislation establishing a rate of fare which was so un- reasonable as to practically destroy the value of the carriers' property, might be held unconstitutional, as depriving the company of its property, without due process of law, considering and approving Railroad Commission Cases, 116 U. S, 307; Dow v. Beidel- man, 125 U. S. 681; Railway v. Minnesota, 134 U. S. 418; Railway v. Wellman, 143 U. S. 339, and Reagan v. Trust Co., 154 U. S. 362. But to declare an act unconsti- tutional is an exercise of the highest power of the court, and the necessity of such a decision must plainly appear. Here the defendant's offers had reference only to that part of the road over which plaintiff had been carried, and did not tend to prove the statutory rate unreasonable for the road as a whole, or for that part of it which was situ- ated in Arkansas. The decision of the State Court (54 Ark. loi), that the correct test was the effect of the act on the defendant's entire line within the limits of the State, was followed ; and the court therefore sustained the law for lack of proof going to this extent. Contracts — Delivery in Instalments — Breach in Limine — Damages. — Plaintiff contracted to deliver to defendant 30 bales of silk, — 10 bales July 25, 10 bales August 1 5, and ro bales September 10. Plaintiff failed to make first delivery, and August I defendant gave notice that it cancelled the contract. Plaintiff could not have made the delivery due August 15, but was able to make the last one, had defendant permitted it.
