Page:Harvard Law Review Volume 2.djvu/206

l88 — Semble, that an act of a State Legislature giving a State board of examiners the power to revoke a physician's license for "unprofessional conduct" is a valid and constitutional exercise of the police power of the State; and that the revocation of a physician's license from having advertised himself in a newspaper and printed pamphlet as a specialist in certain diseases is a valid and constitutional exercise of the discretion vested in the board of examiners. Ex parte McNuity, 19 Pac. Rep. 237 (Cal).

Thornton, J., dissented from both of these propositions, saying, as to the exercise of discretion by the board of examiners : " As well might the board declare that wearing any other hat than one of a white color, by a physician, should be unprofessional conduct."

If the officers to whom is intrusted the execution of a valid law, under cover of that law, by a wrongful exercise of the discretion vested in them, do acts in violation of the Constitution, those acts come within the prohibition of the Constitution. Yick Wo V. Hopkins, 118 U. S. 356, and the other cases therein cited.

Quare whether a law is rendered invalid in toto because it offers an opportunity for such an unconstitutional exercise of authority by the officers to whom its execution is intrusted. The better view would seem to be that if, on a fair construction of the terms of the law, it does not seem intended to authorize or secure such an unconstitutional exercise of authority, it shall be construed as only authorizing a valid exercise of discretion, and to be constitutional; and any officer making an invalid exercise of his discretion shall be held guilty of an unconstitutional exercise of authority, not warranted by the law under which he assumes to act.

— A suit in a Federal court by a railroad company chartered in one State to restrain railroad commissioners of another State from putting in force a schedule of rates, is not a suit against a State, within the meaning of the Eleventh Amendment to the Constitution of the United States, providing that the judicial power of the United States shall not extend to suits against one of the States by citizens of another State. "In these matters, although in a certain sense the State is interested, as it is in all matters affecting the welfare and happiness of her people, yet it is interested only in a general sense, and not in that direct pecuniary sense which makes it, in the language of the law, the real party in interest." Chicago & N. W. R'y Co, v. Dey, 35 Fed. Rep. 866 (Iowa).

Whether a State is the actual party defendant in a suit, within the meaning of the Eleventh Amendment to the Constitution of the United States, is to be deter- mined by a consideration of the nature of the case as presented by the whole record, and not, in every case, by a reference to the nominal parties of the record. In re Ayers, 1 23 U. S. 443.

— Defendant carelessly, but not wilfully, cut timber trees belonging to plaintiff. Held, that the measure of damages in an action of trover is the value of the trees immediately after they were severed from the realty. Beede v. Lamprey,15 Atl. Rep. 133 (N. H.).

This case is a departure from the earlier authorities which hold that the measure of damages is to be estimated on the value of the property at the time of action brought, if its identity has been preserved. The authorities are reviewed in the opinion of the court.

— When the pledgee of stock, given as collateral security, under an honest mistake, sells the same, and applies the proceeds to the payment of the debt with interest, held, that the highest price of the stock between the time of conversion and of bringing action cannot enter into the determination of the damages, which must be limited to the highest price within a reasonable time after the plaintiff learned of the conversion, minus the amount of the debt and interest. Wright v. Bank of the Metropolis, 18 N. E. Rep. 79 (N. Y.).

The principle that a plaintiff must so act as to make his damages as small as he reasonably can was applied in this case. It had already been decided in Baker v. Drake, 53 N. Y. 211, that, when the plaintiff was suing for the conversion of stock for which he had paid the broker but a small percentage of the value as a "margin," a duty rested on him to purchase in the market within a reasonable time after he knew of the conversion, in order to diminish his loss. The court intimated that no such duty would rest on a plaintiff who was complete owner of the stock, thus indicating a distinction between cases where the