scope of the Federal Act, New York3 and New Jersey' contending that the Federal Act does not cover the entire field, while Illinois and California have strongly maintained that the Federal Act is exclusive. It is well settled that Congress has power to regulate interstate commerce. As to those subjects which require a general system of uniformity of regulation, the power of Congress is exclusive. In other matters, admitting of diversity of treatment according to the special requirements of local conditions, the states may act within their respective jurisdictions until Congress sees fit to act; and, when Congress does act, the exercise of its authority overrides all conflicting state legislation. Whether Congress intended to cover the entire field of employers' liability to their employees in interstate commerce must be decided from the statute and the circumstances which led to and surrounded its passage. When Congress passed the act there were no state acts on the subject. It was desired to enact a uniform law, applicable alike to every state, and to withdraw such injuries from the operation of varying state laws. The question of imposing a liability without regard to negligence was considered when the bill was before the Senate for consideration and it was rejected, Congress seeing fit, in its discretion, to exact compensation only where the employer was negligent. Although there are no express words in the act declaring that its operation shall be exclusive as to injuries received in interstate commerce, it was decided nearly a century ago, and has been repeatedly reiterated, that, "if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot be said that the state legislatures have a right to interfere, and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress, in what it does prescribe, manifestly indicates, that it does not intend that there shall be any farther legislation to act upon the subject matter. Its silence as to what it does not do, is as expressive of what its intention is as the direct provisions made by it."

10

"Matter of Winfield v. N. Y. C. & H. R. R. R. Co., supra, note 1. 4Winfield v. Erie R. R. Co., supra, note 2.

'Staley v. Ill. C. R. R. Co., 268 Ill. 356 (1915).

❝Smith v. Industrial Commission, 26 Cal. App. 560 (1915).

'M'Culloch v. State of Maryland, 4 Wheat. (U. S.) 316 (1819); Henderson v. Mayor of New York, 92 U. S. 259, 271 (1875); Smith v. Alabama, 124 U. S. 465, 473 (1888); Gulf, Colorado & Santa Fé R. R. Co. v. Hefley, 158 U. S. 98 (1895); Michigan C. R. R. Co. v. Vreeland, 227 U. S. 59, 66, 67 (1912); The Minnesota Rate Cases, 230 U. S. 352, 399 (1912); N. C. R. R. Co. v. Zachary, 232 U. S. 248 (1913); Erie R. R. Co. v. People of New York, 233 U. S. 671 (1914).

Mondou v. N. Y., N. H. & H. R. R. Co., 223 U. S. 1, 51, 56 (1912); House Rep. No. 1386 and Sen. Rep. No. 460, 60th Cong., 1st Sess.

'Seaboard Air Line R. R. Co. v. Horton, 233 U. S. 492, 501 (1914); Report of Committee on Education and Labor, Sen. Rep. 460, 60th Cong. Ist Sess., in Vol. 2 U. S. Doc. 5219 at p. 2. Several years later it was sought to amend the act so as to give a remedy to the employee regardless of the question of negligence, but the attempt was unsuccessful. Sen. Rep. 553, 62nd Cong. 2nd Sess., and House Rep. 1441, 62nd Cong. 3d Sess.

10Prigg. v. Commonwealth of Pennsylvania, 16 Peters (U. S.) 539, 617 (1842), (Italics are the writer's); Houston v. Moore, 5 Wheat (U. S.) 1, 21, 23, (1820).

In the case of the Missouri, K. & T. Ry. Co. v. Wulf11 it was said that even if the petition in a suit against an interstate carrier for the death of one engaged in interstate commerce asserts a cause of action under the state statute, without referring to the Federal Act, the court is presumed to be cognizant of the Federal Act, and of the fact that it has superseded state laws upon the subject. In the Vreeland12 case it was said that if a liability does not exist under the Employers' Liability Act it does not exist by virtue of any state legislation upon the same subject.

Mr. Justice Brandeis, in a strong dissenting opinion in which Mr. Justice Clarke concurred, reviews the origin, scope and purpose of employers' liability, and the nature, method and means of workmen's compensation, enumerates the cases where no remedy could be had under the Federal Act and concludes that the act is so narrow as to preclude the belief that Congress intended to deny the state the power to provide compensation or relief for injuries not covered by it. In view of the fact that Congress chose to enter the field and evidenced its intention to make the employer responsible only where he was negligent, it seems that the interpretation by the New York and New Jersey courts is an unreasonable restriction of the Federal Act, and that the principal cases are correctly decided by the United States Supreme Court. However desirable may be the result striven for in the dissenting opinion, effect must be given to the intention of Congress and the remedy must be found by application to that body. Harvey I. Tutchings, '18.

Contempt: Punishment of act committed out of state. The question whether the courts of one state have power to punish for contempt, acts committed in another, was raised in Farmers' State Bank of Texhoma v. State, 164 Pac. (Okla.) 132 (1917). The Oklahoma court enjoined the defendant from selling or disposing of certain property, a portion of which was situated in the state of Texas. The defendant who was found guilty of indirect contempt in disposing of the property, contended that contempt is criminal in nature and since all acts constituting the contempt were committed in Texas, the Oklahoma court had no jurisdiction to punish. The court distinguishes between contempt and other criminal acts, stating that the latter are offences against the peace and dignity of the state, hence the jurisdiction to try and punish for such offences is placed alone in the particular state and county against which the offence has been committed. Contempt is an offence against the dignity and authority of the particular court to which the affront is offered. Such court can take action or not, but if the court has jurisdiction of the parties and the subject matter out of which an indirect contempt grows, the affront is none the less directly against the dignity and authority of that court, no matter to what county or state the offender may go to violate the order. It makes no difference as to the character of the property whether real or personal or where it is situated; if the court has power to enjoin its sale, a violation of that order wherever com

11 Missouri, K. & T. Ry. v. Wulf, 226 U.S. 570, 576 (1912). 12 Michigan C. R. R. Co. v. Vreeland, supra, note 7.

mitted is an offence against the court and that court alone has power to punish regardless of the place to which the contemnor may have gone to violate the order.

No authorities are cited in the case, and while the question seems to be one which might frequently have arisen, there seem to be few cases in point. In Prince Mfg. Co. v. Prince's Metallic Paint Co.,1 a New York court enjoined the defendant from using a trade mark of the plaintiff. Acts in violation of the order were committed in Pennsylvania and Massachusetts and the court held that, having acquired jurisdiction of the action and issued an injunction therein, it might punish its violation although the parties were both non-residents and part of the acts complained of were done without the state. This case has apparently never been overruled nor has it been cited in other cases. A decree was given also in Kempson v. Kempson,2 enjoining the defendant from bringing a divorce action in the courts of a foreign state and upon his continuance of the action the same court punished him for contempt.3

To determine the soundness of the doctrine laid down in the principal case, since there is little direct authority to support it, it seems necessary to examine the nature of contempt and the power of the courts over extraterritorial matters. As pointed out, while contempt is generally classified as a crime, there is a distinction between it and other crimes, contempt being an offence against the particular court, while other crimes are offences against the peace and dignity of the state or county where committed. This distinction seems sound and to justify the classification of contempt by some courts as quasicriminal. Again it is divided into civil and criminal contempt, and by some as being of a dual nature.

That the power of the courts to punish for contempt is inherent, and not conferred by the constitution or legislature, is well supported by authority. Logically following these decisions, it has been held that the legislature has no authority to take away such power of the courts, though it may sometimes regulate it. This inherent power

151 Hun (N. Y.) 443 (1889).

258 N. J. Eq. 94 (1899).

361 N. J. Eq. 303 (1901).

Bishop, New Crim. Law, 8th ed., sec. 242-a-1; see United States v. Berry, 24 Fed. 780, 783 (1885); Middlebrook v. State, 43 Conn. 257 (1876), that an act denying criminal jurisdiction to a court does not take away power to punish for contempt, and that the latter is not properly a criminal proceeding.

"Phillips v. Welch, 11 Nev. 187 (1876), civil and criminal contempt defined; State ex rel. Edwards v. Davis, 2 N. Dak. 461 (1892), criminal contempt defined. "State ex inf. Crow v. Shepherd, 177 Mo. 205, 232 (1903); Graham v. Williamson, 128 Tenn. 720 (1913).

74 Blackstone's Com. (Lewis's Ed.) 284-288; Anderson v. Dunn, 6 Wheat. (U.S.) 204, 227 (1821); Ex parte Robinson, 19 Wall. (U. S.) 505, 510 (1873); People v. Tool, 35 Col. 225 (1905); Cartwright's Case, 114 Mass. 230, 238 (1873); Yates v. Lansing, 9 Johns. (N. Y.) 395 (1811); Graham v. Williamson, supra, note 6.

Rapalje, Contempts, sec. 1; In re Ellerbee, 13 Fed. 530 (1882), holding that this power of the courts is inherent and that sec. 725 of the Revised Statutes of the United States is declaratory of this power; State v. Morril, 16 Ark. 384 (1855); Middlebrook v. State, supra, note 4; People v. Wilson, 64 Ill. 195 (1872); Whittem v. State, 36 Ind. 196 (1871); State ex inf. Crow v. Shepherd, supra,

of the courts to punish for contempt arises from necessity: first, to command respect for the judicial system;10 and, secondly, to enforce decrees of the courts. It is necessarily incident to the latter power."

The extent of such power of the courts is curiously vague, 12 especially in relation to extraterritorial matters, since there is much division of authorities as to when such litigation can and should be adjudicated in a domestic court. It is usually considered on the ground of policy and comity.13 Three things are held necessary for a court to have punishing power in contempt: (1) jurisdiction of the parties; (2) jurisdiction of the subject matter of the suit, and (3) power to render judgment in the action. It is quite generally held that each court must punish its own contempt.15

The courts have acquired a limited jurisdiction in extraterritorial matters, among them being power to restrain the bringing of actions in foreign courts, 16 and the enforcement of judgments acquired in a foreign jurisdiction, 17 to enjoin the commission of foreign torts, 18 to compel transfer of land and do other acts in duties arising from trust, fraud or contract,19 and to restrain foreign proceedings in evasion of domestic legislation.20 Whether or not decrees have been given in

note 6; State ex rel. Atty. Gen. v. Cir. Ct. for Eau Claire Co., 97 Wis. 1 (1897); but see contra, Thomas, Constructive Contempt 16, that the legislature has power to control and restrain.

"Graham v. Williamson, supra, note 6.

10Bishop, New Crim. Law (8th ed.) vol. 2, sec. 261; Chisholm v. Caines, 121 Fed. 397, 402 (1903); and see, Watson v. Williams, 36 Miss. 331 (1858).

"United States v. New Bedford Bridge, 1 Woodb. & M. (U. S.) 401 (1846); Mowrer v. State, 107 Ind. 539 (1886); see, Yates v. Lansing, supra, note 7; Boon v. McGucken, 67 Hun (N. Y.) 251 (1893), for application of sec. 14 of N. Y. Code Civ. Proc., giving courts power to punish contempts. But see, Noyes v. Byxbee, 45 Conn.382 (1877); Brown v. Davidson, 59 Ia. 461 (1882); Rutherford v. Holmes, 66 N. Y. 368 (1876); Matter of Watson v. Nelson, 69 N.Y. 536 (1877), for powers of the lesser judicial officers.

12 Ex parte Terry, 128 U. S. 289 (1888).

13 See post, note 21.

14 Ex parte Coffee, 72 Tex. Crim Rep. 209 (1913).

15Hines v. Rawson, 40 Ga. 356 (1869); Hayden v. Phinzy, 67 Ga. 758 (1881); Watson v. Williams, supra, note 10: Ex parte Chamberlain, 4 Cow. (N. Y.) 49 (1825); Prince Mfg. Co. v. Prince's Metalic Paint Co., supra, note 1; Penn Jr. v. Messinger, 1 Yeates (Pa.) 2 (1791).

162 Story Eq. Juris., sec. 899. 900; Portarlington v. Soulby, 3 Mylne & Keen (Eng.) 104 (1834); Cole v. Cunningham, 133 U. S. 107 (1890), holding that such power is constitutional; Great Falls Mfg. Co. v. Worster, 23 N. H. 462 (1851); Locomobile Co. v. Am. Bridge Co., 80 App. Div. (N. Y.) 44 (1903). But see contra, Jones v. Hughes, 156 Ia. 684 (1912); Harris v. Pullman, 84 Ill. 20 (1876). And see, Mead v. Merrit, 2 Paige (N. Y.) 402 (1831), that court will enjoin the starting of an action but not one already started. For full discussion of this subject see, 9 Col. Law Rev. 80.

17Stevens et al. v. Cent. Nat. Bank, 144 N. Y. 50 (1894); Davis v. Cornue, 151 N. Y. 172 (1896); Gray v. Richmond Bicycle Co., 167 N. Y. 348 (1901).

18Frank v. Peyton, 82 Ky. 150 (1884); Alexander v. Tolleston Club, 110 Ill. 65 (1884); Baker v. Rockabrand, 118 Ill. 365 (1886); Great Falls Mfg. Co. v. Worster, supra, note 16. But see, contra, Atlantic & P. Tel. Co. v. B. & O. R. R., 46 N. Y. Super. Ct. 377 (1880).

19See 2 Col. Law Rev. 51; Dale et al. v. Roosevelt, 5 Johns. Ch. R. 173 (1821); Ward v. Arrendondo, I Hopk. (N. Y.) 213 (1824); D'Ivernois v. Leavitt, 23 Barb. (N. Y.) 63 (1856); Gardner v. Odgen, 22 N. Y. 327 (1860); Sloan v. Baird, 162 N. Y. 327, 331 (1900).

20Cole v. Cunningham, supra, note 16; Reynolds v. Adden, 136 U. S. 348 (1889).

these cases, has usually depended on the equities of the case on the one hand, and policy and comity to be pursued toward another jurisdiction on the other.21

It is a general rule of equity that it will not decree what it cannot enforce.22 Since in these cases of extraterritorial jurisdiction, it has made decrees, it must logically follow that the power to punish for contempt, a violation of its decrees, is incident to its power to make the decrees.23 To hold contrary to this principle would be to make a large and necessary part of the work of the courts of equity a mere farce. For example, as pointed out in the principal case, a decree of a court, enjoining the sale of personal property which was within the jurisdiction of a court having proper control of the parties, could easily be avoided by going across the state line to sell.

It is submitted, therefore, that the decision of the principal case was sound in legal principle, and that the recognition of the authority there exercised is necessary in many cases to the working out of practical justice.

Ralph L. Emmons, '18.

Criminal Law: False pretenses: Professional services as "valuable things."-The case of State v. Ball, 75 So. (Miss.) 373 (1917), was a criminal prosecution under the statute relating to false pretenses. The defendant, with the intention of defrauding one Doctor Magee, told the doctor that he had a cow, and that if he did not pay the doctor by a certain date for professional services rendered or to be rendered, the doctor should have the cow. In fact, Ball had no such cow and the whole story was made up for the purpose of deceiving the doctor. In this, Ball was successful, and obtained professional services which otherwise the doctor would not have rendered. The claim of the defense was that the professional services of a physician were not "valuable things" under the statute. The court, however, held that the services were "valuable things," placing its decision on the ground that the legislature in using this term meant to include all possible subjects of the offense, and not limit it merely to tangible personal property; and saying further that the physician's stock in trade, his services, should be no more liable to be taken by false pretenses than should the goods of a merchant. It might be asked whether, the offense being punishable by imprisonment, this decision did not violate the provision of the state consti

21Exercised: Mead v. N. Y. Co., 45 Conn. 199 (1877); Eaton v. McCall, 86 Me. 346 (1894); Burgess v. Smith, 2 Barb. Ch. (N. Y.) 276 (1847); Locomobile Co. v. Am. Bridge Co., supra, note 16; Willey v. Decker, 11 Wyo. 496 (1903). Should not be exercised: M. & M. R. R. Co. v. Ward, 2 Black (U. S.) 485 (1862); Wimer & Wife v. Wimer and als., 82 Va. 890 (1886).

22 See 16 Cyc. 118, and see, Ward v. Arredondo, supra, note 19.

23 United States v. Hudson, 7 Cranch (U. S.) 32 (1812); Clark v. People, I Ill. 340 (1830); State v. Mathews, 37 N. H. 450 (1859); Yates v. Lansing, supra. note 7. See also, Burnham v. Morrisey, 14 Gray (Mass.) 226 (1859); Cunning. ham v. Butler, 142 Mass. 47 (1886).

'Mississippi, Code of 1906, sec. 1166: "Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, or valuable thing, upon conviction thereof, shall be punished