That principle was recently applied with regard to a claim made by a farmer for compensation for loss of his land owing to its being taken by the Board of Agriculture for Government purposes. In a previous case (Fleming, 23 R. 98) part of a farm had been taken and the court held that compensation to the occupier should contain among other items an allowance for the loss of profits for the unexpired period of the lease. But in this recent decision (Macintyre v. Board of Agricul ture, 1915, 2 S. L. J., 198) the amount of compensation was fixed according to the estimated loss of profits for a period which would give the tenant a reasonable time to secure another farm.

The reason for the distinction thus made between the two cases was strikingly put by one of the judges in the following passage, in which after referring to the earlier decision he says: "There a portion only of a farm was taken. The tenant was bound to remain in occupation of the rest, shorn of the portion taken, during the remainder of the lease, whether that was terminated at the break stipulated in favor of both parties, or ran its full endurance. So long, therefore, as the tenant remained tenant of the remainder of the farm he suffered from the loss of the part taken, and the only deduction possible from the full compensation for consequent loss over the whole remaining years of the lease was an allowance for the contingency of the lease being brought to an end at the break. But here the whole farm is taken. The tenant had to leave, but when he does so he is free. He is not tethered to the remainder of the farm.

It

is at once open to him to take another, or seek other means of taking livelihood. To treat him as entitled to be compensated by a payment of compensation based on loss of average profits for the whole remaining years of the lease, even with a deduction in respect of the contingency of the lease being foreshortened at the break, would be equivalent to saying that he is entitled to have an annuity based on his former average profits paid to him for the years of the estimated endurance of the lease. For that there is no justification. The tenant is not entitled to sit down, fold his hands, and enjoy himself at the expense of the Board of Agriculture-that is, of the national taxpayer-for the remaining years of his lease. Like the servant prematurely dismissed, he is bound in equity to minimize the loss so far as he can by seeking another farm or employment. It is, therefore, necessary to consider the circumstances of the district, and that in a pretty wide sense, and to esti

mate the prospects in matter of time of the claimant finding another suitable farm, fairly similar in class and quality to that from which he is being ousted, and to award him compensation on that basis."

By our Workmen's Compensation Act an injured workman only gets compensated for injuries received by accident arising out of and in course of his employment. Up till recently that phrase was construed strictly so that if a man did not follow his master's rules, an accident happening to him when he was not acting in conformity with them did not entitle to compensation, for according to this method of interpretation, it did not arise out of the employment. As already explained in this column, the House of Lords corrected that view by laying down the more generous rule that even though a man was in breach of a workshop rule, still if he was bona fide serving his employer when he received injury, he was entitled to compensation.

We propose to show by two recent examples how strongly the tide is setting in favor of that rule. In the first of these (Robertson v. Barclay, Curle & Co. Court of Session 16, October, 1915) a boy was employed in various duties as a laborer by an engineering company. Part of his work was to break certain sticks by hand between pegs. To expedite this work, but without the authority or knowledge of the employers or their foreman, he used a hammer and chisel to break the sticks. The chisel becoming blunt, he attempted to sharpen it upon a "buffing wheel," which he set in motion for the purpose. The proper use of the wheel was to polish brass, not to sharpen tools. In attempting to sharpen the chisel in this manner he injured one of his hands. He claimed compensation under the Act. The sheriff substitute, on the facts held that the boy must have known that it was not his duty to use a chisel, and that he should not have set the wheel in motion, and therefore, as he was not employed to break sticks in the way he did, nor to use the wheel, he was working outside the scope of his employment, and the accident did not arise out of and in the course of that employment. The sheriff substitute therefor refused to award compensation. The claimant appealed. The court held that there was no evidence to justify the finding that the accident did not arise out of and in the course of the employment, and that, as there was no finding that the use of the wheel was unreasonable, the boy, when injured, was honestly doing something which he believed to be in the furtherance of his employer's interest. He was, therefore, entitled to compensation.

The other case (Sunter v. Glasgow Window Cleaning Co. 1915. 2 S. L. J. 246) concerned a workman who was employed as a window cleaner by a company which made window

cleaning their business. In the ordinary course he proceeded to the company's office every morning and received instructions from the manager where he was to work. One morn

ing, while on his way to the office to get a job assigned to him, he met with two other cleaners in the same service, going to a job. Without going on to the office or receiving any instructions so to do, he thereupon arranged with the two men to assist them in their work which they were about to commence. When he had been about two hours engaged in this work he fell out of a window and was killed. His widow claimed compensation. The claim was resisted by the company on the ground that when the accident happened the deceased was not acting within the scope of his employment, as he had received no instructions to do the work upon which he was engaged. Evidence was given to the effect that the workmen of the company usually helped one another on jobs without any special instructions, and that that was a general custom in the trade. The sheriff substitute, however, found that the deceased were engaged on a job assigned to ployment. He accordingly refused to make an arising out of and in the course of the employment, and that the accident was not one award in the widow's favor. The widow appealed. The Court of Session allowed the appeal, holding that there was no evidence on which the sheriff substitute could have found as he had. The court held, that even if the deceased was acting outside the scope of his emhim by two other workmen and not by his employers, none the less he was engaged on his employer's business when the accident occurred, and the accident was therefore one arising out of and in the course of the employment.

With reference to the recent editorial article in this journal as to the physician who permitted a defective child to die by-with consent of its parents-refraining from doing an operation. We may briefly note a decision here (Jefferson v. Paskell 140, Law Times 7) which has given satisfaction to eugenists. It was a suit for breach of promise of marriage, the defense being that the plaintiff was in such a tuberculous condition as to justify the defendant not implementing his promise. The jury negatived the allegation, but the court definitely indicated that had it been proved, they would have sustained it as a good answer to the claim. DONALD MACKAY.

Glasgow, Scotland.

REVIEW OF THE LEGAL RESULTS OF THE PAN-AMERICAN SCIENTIFIC CONGRESS.

Not sufficient attention, it seems to us, has been paid to the result of the PanAmerican Scientific Congress which met last January, in the City of Washington. And this observation has special reference to legal results.

Former Judge Simeon E. Baldwin, of Connecticut, who was a member of the Congress, in reviewing the results of its labors before the last meeting of the Connecticut Bar Association, stated that while we had been fortunate recently in the number of international congresses and while there had been much handshaking over international barriers and much prophesying, the actual results had been few. One outstanding exception, he said, was the recent Pan-American Scientific Congress, which, according to Judge. Baldwin, has left a distinct impression for good on international relations in the Western Hemisphere.

The first meeting of the Congress was in 1908, in Chili. "It was designed," said Judge Baldwin, "to make it not simply a congress, but a scientific congress, of scientifically qualified men, to bear their part in it. Probably its projectors were too sanguine and aimed too high. Certainly they left much unaccomplished. Its proceedings fill nineteen volumes, and one of them is devoted to law."

Our government contributed $50,000 for the expenses of the recent meeting, while the Carnegie Foundation contributed probably twice that amount. About 150 delegates were present from the various republics of America, other than the United States, which had itself at least that many more who took part in the deliberations of the Congress. The delegates were, in most cases, officially selected, and in some cases large appropriations were made by their respective governments towards their expenses and the expenses of the Congress.

The business of the Congress was shaped early in 1915, by an executive committee at Washington. The various addresses were either in English or Spanish. The president of the Congress was the Chilian ambassador, but the active direction fell mainly on John Barrett, director of the PanAmerican Union, and James Brown Scott, representing the Carnegie Endowment for promoting international peace.

One of the most important results of the Congress, in the estimation of Judge Baldwin, was the organization of an American Institute of International Law. "This institute," says Judge Baldwin, "is composed of 105 members, five from each of the twentyone nations. It is obvious that this throws its control in the hands of Latin-America, and also that the smaller nations will be less apt than the larger ones to have each five citizens capable of doing good work in such an organization. It was, however, probably a necessary concession to the doctrine that each independent nation is, as to the power of sovereignty, the equal of every other, and practically the United States will hold the reins. The president elected was Dr. James Brown Scott, of Washington."

Dr. Pineres, of Columbia, contributed an interesting report of Constitutional restraints in the Republic of Columbia. He explained that while Columbia was a federal union, the supreme court of the union could suspend any unconstitutional statutes passed by the several component states, and the national senate could abrogate them. On the other hand, the legislatures of a majority of the states could declare the nullity of unconstitutional acts of the national congress. It is now a consolidated republic, and since 1910 the supreme court can declare an unconstitutional act of congress unenforceable, upon the application of any citizen, the attorney-general having first been heard. The latter provision also exists in the Province of Ontario in the Dominion of Canada.

Dr. Gil, of Buenos Aires, praised our recognition of Carranza as "a triumph of Pan Americanism."

Judge Baldwin's conclusion is that the Congress was admirably directed and achieved results that will be permanent. "International peace," says Judge Baldwin, "is promoted by whatever brings representative and intelligent men of different nations together in a common endeavor to work for the public good."

A. H. ROBBINS.

POWER OF STATE TO REGULATE TELEPHONE RATES WHERE "LOCAL" TERRITORY EXTENDS INTO TWO OR MORE STATES.

Introductory. In many instances the local territory served by a telephone company includes territory in different states, thus making the business carried on across the line between such states of an interstate character. The contracts of such a company with its subscribers provide for furnishing service throughout such territory at a fixed charge for stated periods. Under his contract, and for the stated periodical charge, each subscriber may converse, by means of his telephone, indiscriminately with other subscribers in the local territory within his state or within the other state into which the local territory extends. In this manner intrastate and interstate business are so commingled that it is impossible to separate one from the other, or to affect one without affecting the other.

States, through their respective utility commissions, have attempted to fix the rate of charge for telephone service rendered under contracts of this kind, when it is very evident that they are without power to do so. power to do so. A state utility commission has no more power to authorize a telephone company rendering service of this mixed character, to change its rates for such service than has any private individual. It is the purpose of this article to show this want of power in the states.

Telephone Messages Are Commerce.A message sent by telephone from one state into another is commerce between the states, and subject to the control of Congress, so far as regards matters connected with commerce among the states.2

"Intelligence transmitted by means of electricity is commerce, and when it is being transmitted from one state to foreign states, to any of the territories, or within the District of Columbia, it is exclusively under the control of Congress. All telephone lines running from one state to another, and all connecting lines, even though they may be wholly within the state, are subject to the control of Congress."3

In Telegraph Co. v. Texas, it was decided by the United States Supreme Court that intercourse by the telegraph between the states is interstate commerce; that a telegraph company occupies the same relation to commerce as a carrier of messages, that a railroad company does as a carrier of goods; that both companies are instruments of commerce, and their business is commerce itself; that they do their transportation in different ways, and their liabilities are in some respects different, but that they both are indispensable to those engaged to any considerable extent in commercial pursuits. There can be no doubt but that this decision is applicable where the conveyance of the intelligence is by what is technically known as "telephone" instead of by what is technically called "telegraph."

Power to Regulate Interstate Commerce Vested Exclusively in Congress-The states cannot, under any guise, impose direct burdens upon or directly affect interstate commerce, nor regulate or restrain that which from its nature should be under the control

(1) Judson, Interstate Commerce (2d ed.), secs. 7, 16; Jones on Tel. & Tel. Cos., sec. 668; In re Pennsylvania Tel. Co., 48 N. J. Eq. 91, 20 Atl. 846, 27 Am. St. Rep. 462; Central, etc., Tel. Co. v. Falley, 118 Ind. 194, 19 N. E. 604, 10 Am. St. Rep. 114.

(2) Callum v. District of Columbia, 15 App. D. C. 529.

Jones on Tel. & Tel. Cos., sec. 216.

(3)

of the one authority and be free from restriction, save as it is governed in the manner that the national legislature constitutionally ordains. A state canot prescribe the rates to be charged for transportation from one state to another.5

The exclusive power to regulate interstate commerce, and the charges exacted as payment for services rendered which constitute interstate commerce, is vested in the Congress of the United States."

"The rule that the regulation of commerce which is confined exclusively within. the jurisdiction and territory of a state, and does not affect other nations or states or the Indian tribes, that is to say, the purely internal commerce of a state, belongs exclusively to the state, is as well settled as that the regulation of commerce which does affect other nations or states or the Indian tribes belongs to Congress.""

In regard to an ordinance seeking to control the number of passengers carried in interstate electric cars, the Supreme Court of the United States said: "Absence of federal regulation does not give the power to the state to make rules which so necessarily control the conduct of interstate commerce as do those just considered."s

Further in the same case the court said: "If Covington can regulate these matters, certainly Cincinnati can, and interstate business might be impeded by conflicting and varying regulations in this respect, with which it might be impossible to comply. On one side of the river one set of regulations might be enforced, and on the other side quite a different set, and both seeking to control a practically continuous movement of cars."

So long as Congress has not exercised its powers over many subjects coming within its jurisdiction, the states are free to legislate thereon. But in regard to other matters the existence of the power of control

(5) Minnesota Rate Cases, 230 U. S. 352. (6) Western Union Tel. Co. v. Pendleton, 122 U. S. 347; Minnesota Rate Cases, 230 U. S. 352. (7) Telegraph Co. v. Texas, 105 U. S. 460. (8) South C. & C. St. R. Co. v. Covington, P. U. R., 1915A, 231, 238.

in Congress, and not in its exercise, excludes the power of the states. The latter includes the fixing of tariffs upon passengers, merchandise and all other kinds of commerce carried from one state to another.9

A state can provide for the separation of races in transportation on trains within the state, but it cannot determine whether white and colored interstate passengers shall be compelled to share their cabin accommodations on steamboats, as that is a question of interstate commerce to be determined by Congress alone.10

"The right of interstate commerce, that is, the right of conducting traffic and commercial intercourse between the states, is independent of state control, and where freedom of commerce between the states is directly involved, the non-action of Congress indicates its will that the commerce should be free and untrammeled, and the states cannot interfere therewith either through their police power or their taxing power."11

Interblending of Intra and Inter State Commerce Gives Congress Control.-If matters over which Congress has jurisdiction as being interstate commerce are so commingled with matters that are purely intrastate, then the whole comes within the power of Congress to regulate and the states are excluded from any participation in the regulation thereof.12

When the state, in dealing with its internal commerce, undertakes to regulate instrumentalities which are also used in interstate commerce, its action is necessarily subject to the exercise by Congress of its authority to control such instrumentalities so far as may be necessary for the purpose of enabling it to discharge its constitutional function.13

"If the situation has become such, by reason of the interblending of the interstate and intrastate operations of interstate carriers, that adequate regulation of their interstate rates cannot be maintained without imposing requirements with respect to. their intrastate rates which substantially affect the former, it is for Congress to determine, within the limits of its constitutional authority over interstate commerce and its instruments the measure of the regulation it should supply."14

The authority of Congress extends to every part of interstate commerce, and to every instrumentality or agency by which it is carried on; and the full control by Congress of the subjects committed to its regulation is not to be denied or thwarted by the commingling of interstate and intrastate operations. This is not to say that the nation may deal with the internal concerns of the state, as such, "but that the execution by Congress of its constitutional power to regulate interstate commerce is not limited by the fact that intrastate transactions may have become so interwoven therewith that the effective government of the former incidentally controls the latter. This conclusion necessarily results from the supremacy of the national power within its appointed sphere."15

An act of Congress regulating the hours of labor of railroad employes engaged in interstate commerce is not invalid because it applies to railroads and employes engaged in intrastate business.16

The validity of the Safety Appliance Act is not affected by the fact that it applies to cars moving wholly in intrastate traffic but included in trains bearing interstate commerce. Both classes of traffic are at times carried in the same car, and when this is not the case the cars in which they are carried are frequently commingled in

(14) Minnesota Rate Cases, 230 U. S. 352, 433. (15) Minnesota Rate Cases, 230 U. S. 352, 399. See also Second Employers' Liability Cases, 223 U. S. 1, 47.

(16) Baltimore & O. R. Co. v. Interstate Com. Com'n, 221 U. S. 612.