The Conference of Commissioners on on Uniform State Laws were more successful in securing the approval of the Association. in support of two new Uniform Acts, recently completed, to-wit: "The Uniform Limited Partnership Act and the Uniform Act for the Extradition of Persons of Unsound Minds." In this connection, it occurs to the writer that such an important piece of legislation as a Code of Insurance Laws, the adoption of which a special committee of the Asssociation has been trying to secure for so many years, should more properly be referred to the Conference of Commissioners on Uniform State Laws. With all due respect to the Chairman of the Committee on Insurance, Mr. A. I. Voreys, of Ohio, who seemed somewhat out of humor at the lack of interest shown by the Association in the work of his committee, we do not believe that any mere committee of a bar association is competent to draw such a code, nor is a general meeting of the Association, pressed as it is for time, the place to discuss the manifold details of such an extensive and important subject matter of legislation. The Conference of Commissioners on Uniform State Laws, with representatives from all the states, appointed by their respective governors, being also the creature and enjoying the complete confidence of the American Bar Association, is, it seems to us, the proper body to frame such important laws.

But, as we have heretofore intimated, this was an unusual year and therefore an unusual convention. Lawyers this year do not seem to have any heart for the discussion of legal problems-except as such problems bear upon the success of the present war. Therefore, the delegates at Saratoga reserved all their enthusiasm for those who helped to solve for them some of the problems of the war. They were enthusiastic in their support of Elihu Root's war resolutions, and listened with rapt attention to Charles E. Hughes' address on War Powers Under the Constitution and to Maitre

Gaston de Leval's paper on Prussian Law as Applied in Belgium.

Considering the Judicial Section, so successfully organized a few years ago by our good friend, Hon. Thomas W. Shelton, of Virginia, took the form of a banquet to the Russian Ambassador. Addresses by Hon. Elihu Root and Solicitor General Davis, at this banquet, expressed to the Ambassador the intense interest and concern of every American citizen in the ultimate success of the new Russian democracy.

It delighted us and we are sure it will please our readers, that Hon. Walter George Smith, of Philadelphia, who has been for some time one of our honorary associate editors, was elected president of the Association. His genial personality should make Mr. Smith one of the most popular presidents the Association has ever had. Moreover, he richly deserved the honor thus conferred upon him, for he has not only been constant in his attendance and support of the Association, but, as president of the Conference of Commissioners on Uniform State Laws, for a long term of years, has contributed more than any other man, to the wonderful success of that great undertaking of the American Bar Association.

A. H. R.

NOTES OF IMPORTANT DECISIONS.

HIGHWAYS ONE RIDING IN UNREGIS TERED AUTOMOBILE NOT A TRAVELER. -In McCarthy v. Inhabitants of Leeds, 101 Atl. 448, decided by Supreme Judicial Court of Maine, it was held, that one riding as a guest in an unregistered automobile is not a trav eler and, as by statute only a town is liable to travelers for the safety of its highways, no liability arises to it for a defect in a bridge which precipitated an automobile in a river, whereby a guest was drowned.

In this case the guest was a child riding with her granduncle in an automobile which had not been registered. The Maine statute provides, that no automobile shall be operated by a resident, unless it has been registered.

The defect was a loose plank, causing the automobile to swerve against the bridge railing, which, being unable to resist the impact, broke and the auto fell with its occupants into the river.

The theory upon which the court proceeds is that an unregistered auto on the highway and all in it are trespassers, and the case refers to Feeley v. Melrose, 205 Mass. 329, 27 L. R. A. (N. S.) 1156, in support of the ruling, adducing also its own reasoning.

It may be conceded that states have the right to control the use of their highways and to forbid any classes of vehicles thereon it sees fit. But we seriously doubt, especially when, as in this statute, it is only residents who are forbidden to use unregistered automobiles on streets, whether this is a classification of vehicles which may be used on the highway. It aims at residents, but not to discriminate against them, so far as non-residents are concerned. It, therefore, is to be construed as a revenue measure.

When the statute speaks of forbidden use on a highway, the word highway is not to be construed in a technical way. It merely specifies a place for use so as to fix the auto being away from private grounds and to make violation of the statute complete. There is no barring of a highway for special reasons, as for example, during repair. This is in aid of better preservation for general use.

We believe the more generally accepted rule in this kind of a statute is, that, if there is a penalty, as fine or imprisonment, this is meant for an infraction of the prohibition. This idea gains force in the case of a child riding with one whose fault is not imputable to it. It seems to us that the Maine court "sticks in the bark" as to the statute involved and does not sufficiently regard its purpose.

NEGLIGENCE-DOCTRINE OF RES IPSA LOQUITUR IN INJURY SUFFERED BY USER OF TELEPHONE.-In Warren v. M. & K. Teleph. Co., 196 S. W. 1030, decided by Springfield (Mo.) Court of Appeals, the question is suggested, whether the doctrine res ipsa loquitur applies to an accident happening to the user of a telephone, shocked by electricity, while using it during a thunder storm.

The court said: "Does the doctrine of res ipsa loquitur apply to the facts thus pleaded and proved? There is less doubt on this point as to the facts pleaded than as to those proved, for it is only by the proof that the element of lightning is brought into the case. Without that element the thing complained of, to-wit, the electricity, wires, receivers, transmitters,

etc., were clearly under the sole control and management of the defendant. The plaintiff had no control of these instrumentalities and no means of knowing the cause of her injury, except the bare fact that the defendant furnished a telephone for her use and held it out as being safe for that purpose; that she attempted to use it for the purpose and in the way it was intended, and in so doing was injured. This occurrence was so unusual and contrary to what usually happens as to show that something was wrong, and this something wrong being with the instrumentalities solely under defendants' control, the doctrine of res ipsa loquitur applies. Shearman & Redfield on Negligence, § 58b; Curtis' Law of Electricity, § 592.

With the element of lightning introduced in the case (by defendant, however) the defendant asserts that the necessary basis of this doctrine is lacking because the current of electricity from the lightning was not under defendant's control. This argument is more plausible than in accord with sound legal reasoning. Storms and floods are not under th control of human agency, but if a passenger is injured by derailment of a train the doctrine of res ipsa loquitur would not disappear by a mere showing that the track was undermined by water from a rain storm. The very fact that storms and floods and lightning are destructive makes it necessary to use the highest degree of care and skill to guard against same in the use of instrumentalities made dangerous thereby."

We do not feel convinced that the doctrine res ipsa loquitur does apply to a case of shock over a telephone wire. There is no presumption that it comes from any defect in an instrumentality in the control of the owner thereof. If there is no element in the air that ordinarily would cause the shock, the doctrine may apply. Therefore, good pleading requires averment that the surroundings are of a normality in which the doctrine would apply. If there is electricity in the air it would be a pure guess whence the shock came. Furthermore, injury from lightning does not show anything wrong with the telephone.

When the court illustrates its view by ref erence to derailment as showing instance of res ipsa loquitur, and says that storms and flood do not displace it, we still do not feel convinced, because we believe they would, and it is not required to guard against them as acts of God any more than if a public enemy caused a derailment.

It does not, however, appear so evident, that a pleader alleging a derailment would have

to plead normal conditions as is one injured as was the plaintiff in the instant case. This results from the fact that judicial cognizance may differ in the two kinds of occurrences.

public councils with the power of defending it. It would be more willing to submit to foreign conquest than to domestic rule."

The war powers under the Constitution are carefully distributed. To Congress is given the power "to declare war." The pro

STITUTION.

In the unusual circumstances of war it is natural that there should be some confusion with respect to the constitutional warrant for extraordinary action taken or contemplated. Some altogether misconceive the Constitution. Others vaguely fear that we are serving temporary exigency at the expense of our fundamental law, and that we are thus breeding a lawless, Constitution-ignoring spirit which is a serious menace to our future. Others seek to raise doubts of power in order to embarrass the prosecution of the war. And there seems to be still others who in their zeal impatiently and without thought put the Constitution aside as having no relation to these times.

Ilar Powers Generally-While we are at war, we are not in revolution. We are making war as a nation organized under the Constitution, from which the established national authorities derive all their powers either in war or in peace. The Constitution is as effective today as it ever was and the oath to support it is just as binding. But the framers of the Constitution did not contrive an imposing spectacle of impotency. One of the objects of "a more perfect union" was to "provide for the common dedefense." A nation which could not would be powerless to secure the "blessings of liberty to ourselves and our posterity." Self preservation is the first law of national life and the Constitution itself provides the necessary powers in order to defend and preserve the United States. Otherwise, as Mr. Justice Story said, "the country would be in danger of losing both its liberty and its sovereignty from its dread of investing the

favor, as this was deemed to belong to the treaty-making power vested in the President and the Senate. To the President was given the direction of war as the commander in chief of the army and navy. It was not in the contemplation of the Constitution that the command of forces and the conduct of campaigns should be in charge of a council or that as to this there should be a division of authority or responsibility. The prosecution of war demands in the highest degree the promptness, directness and unity of action in military operations which alone can proceed from the executive. This exclusive power to command the army and navy and thus direct and control campaigns exhibits not autocracy but democracy fighting effectively through its chosen instruments and in accordance with the established organic law.

While the President is commander in chief, in the Congress resides the authority "to raise and support armies" and "to provide and maintain a navy," and to make rules for the "government and regulation of the land and naval forces:" and as a safeguard against military domination the power to raise and support armies is qualified by the provision that "no appropriation of money to that use shall be for a longer term than two years," otherwise the power is unlimited. The Congress is to prescribe the military organization and provide the equipment, afford maintenance, and for these purposes appropriate such amounts of money as it think necessary.

T'alidity of the Conscription Act.-Upon every citizen lies the duty of aiding in the common defense. In exercising its Constitutional power to raise armies, the Congress may enforce this duty. The Congress may call anyone to service who is able to

serve.

The question who may be called or in what order is simply one for the judgment of the national legislature. The power vested in Congress is not to raise armies simply by calling for volunteers, but to raise armies by whatever method Congress deems best and hence be deemed to embrace conscription. To the framers of the Constitution, the draft was a familiar mode of raising armies, as it has been resorted to by the colonies to fill up their quota in the revolutionary war. It is true that the proposal in 1814 of Monroe as Secretary of War to resort to conscription was vigorously opposed as unconstitutional. But the draft was put in force both by the Union and by the Confederacy during the Civil War and its validity was sustained by the courts in both North and South. "The power of coercing the citizen," said Judge Robertson of Virginia in Burrough v. Peyton,1 "to render military service is indeed a transcendent power in the hands of any government; but so far from being inconsistent with liberty it is essential to its preservation."

Permit me to quote upon the question the opinion prepared (although not published) by President Lincoln, which sets forth admirably the ground for sustaining the power of Congress to pass a conscription act.

"In this case, those who desire the rebellion to succeed, and others who seek reward in a different way, are very active in accommodating us with this class of arguments. They tell us the law is unconstitu tional. It is the first instance, I believe. in which the power of Congress to do a thing has ever been questioned in a case when the power is given by the ConstituWhether tion in express terms. power can be implied when it is not expressed has often been the subject of controversy; but this is the case in which the degree of effrontery has been ventured on of denying a power which is plainly and distinctly written down in the Constitution. Constitution declares that 'the Congress shall have power*** to raise and support armies; but no appropriation of money to

(1) 16 Gratt. 470 (1861).

The

that use shall be for a longer term than two years.' The whole scope of the conarmies.' There is nothing else in it. * scription act is to raise and support * * Do you admit that the power is given to raise and support armies, and yet insist that by this act Congress has not exercised the power in a constitutional mode? Has not done the thing in the right way? Who is to judge of this? The Constitution gives Congress the power but it does not prescribe the mode or expressly declare who shall prescribe it. In such case Congress must prescribe the mode, or relinquish the power. There is no alternative. * The power is given fully, completely, unconditionally. It is not a power to raise armies if state authorities consent; nor if the men to compose the armies are entirely willing; but it is a power to raise and support armies given to Congress by the Constitution and without any 'if.""

* * *

These are the words of Lincoln, penned in the midst of the Civil War in which con

scription was enforced and his reasoning is conclusive. And while the question was not presented to the United States Supreme Court, the power of Congress was explicitly recognized in Tarbele's case," and in later opinions.

The constitutional authority thus vested in Congress is not limited by any qualification arising from religious beliefs or conscientious objections. These are matters not affecting power, but policy. As Mr. Justice Harlan said, in delivering the opinion of the Supreme Court in Jacobson v. Massachusetts, one "may be compelled by force if need be, against his will and without regard to his personal wishes or his pecuniary interests or even his religious or political convictions, to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense." It is, however, in my judgment, a sound policy on the part of Congress to provide for the discharge from the draft of conscientious objectors. Nothing, I believe is gained for the country by overriding the claims of conscience in such cases; but it

is obviously necessary that there should be such definitions and restrictions as will prevent imposture and evasion by those who have as little conscience as they have stomach for war.

It is contended in some quarters that this power, which undoubtedly Congress had, has been restricted or abolished by the thirtenth amendment, which provides that "neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted shall exist within the United States or any place subject to their jurisdiction." It has been said by the United States Supreme Court that the plain intention "was to abolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit, which is the essence of involuntary servitude. It hits not only slavery but peonage.' But the language of the amendment was not new. It reproduced the historic words of the Ordinance of 1787 for the government of the Northwest Territory, and its terms, construed in the light of its history and plain purpose, afford no basis whatever for the conclusion that it interfered in the

mon defense and the constitutional amendment contemplates no escape from the duty to defend and preserve the United States.

Power Over the Militia.-The power "to raise and support armies" should not be confused with the power given to Congress "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repe! invasions;" and "to provide for organizing, arming and disciplining the militia, and for governing such service of the United States, reserving to part of them as may be employed in the the states respectively the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress." The President is Commander in Chief not alone of the "army and navy of the United States," but also "of the militia of the several states, when called into the actual service of the United States." The militia within the meaning of these provisions of the Constitution, is distinct from the army of the United States. "Remember always," said Daniel Webster, "that the great principle of the Constitution on that subject is that the militia is the militia of the states and not of the general Government, and being thus the militia of the states there is no part of the Constitution worded with greater care and with a more

In the case of Robertson v. Baldwin, it was argued that the Thirteenth Amendment invalidated certain provisions of the Revised Statutes authorizing Justices of the Peace to issue warrants for deserting sea

In denying the claim, the court said: "It is clear, however, that the amendment was not intended to introduce any novel doctrine with respect to certain de

and limits the power of Congress over it."

In order to execute the laws of the Union, to suppress insurrection and to repel invasions, it would be necessary to employ regular troops or to employ the militia. And the power given to Congress with respect to the militia was manifestly to make a large standing army unnecessary. But as the service of the organized militia can

been treated as exception, such as military and naval enlistments." The soldier drafted under Act of Congress is performing the duty which he owes of aiding in the com

ment for the limited purpose specified in the Constitution it follows (as AttorneyGeneral Wickersham advised President Taft) that the organized militia, as such, cannot be employed for offensive warfare outside the limits of the United States.