Page:The Green Bag (1889–1914), Volume 21.pdf/89

 Review of Periodicals

CONSTITUTIONAL LAW is the subject of several articles in the recent magazines, and special attention is called to those in regard to the rule of stare decisis giving contractual rights pro tected by the Constitution and the right of the national government to regulate intra-state traffic of interstate railroads. An interesting discussion of a question of patent rights is briefly reviewed be low. Two articles on water law are also likely to attract many readers.

Admiralty (Torts). "Jurisdiction of the Admiralty in Cases of Tort," by Henry Bill ings Brown. Columbia Law Review (v. ix, p. 1). Discussing some disputed and some unde cided questions of admiralty jurisdiction in the United States, especially that as to aids to navigation attached to the land. Comparative Jurisprudence. "English Law in Scots Practice. I. Consideration in Con tract," by Hector Burn Murdoch. The Juridi cal Review (v. xx, p. 346). Comparison of English and Scotch law to aid Scotch lawyers when consulting English authorities. q Constitutional Law (Obligation of Con tracts). "Stare Decisis and Contractual Rights," by Wilbur Larremore. Harvard Law Review (vol. xxii, p. 182). The recent decision in Muhlker v. New York & Harlem R. R. Co., 197 U. S. 544, while not the first recognition by the Supreme Court of contractual or vested rights in the observance of the doctrine of stare decisis, does, however, according to this article, ex tend such recognition into a new field. In the case in question the raising, pursuant to a state statute so directing, of a railroad struc ture in Park Avenue, New York City, which formerly was on, or partially below, the level of the street, to an elevated viaduct, whereby the easements of light and air of abutting owners were substantially curtailed, was held to deprive owners who had purchased since

the decisions of the New York Court of Appeals, in the elevated railroad cases, of contractual rights in contravention of the Constitution of the United States. The case of Gelpcke v. Dubuque, 1 WalL (U. S.) 175, held that decisions of the Supreme Court of Iowa, interpreting the constitution and statutes of that state, afforded legal rules to govern transactions which occurred before such decisions were overruled by a later decision of the state Supreme Court. "The Muhlker case . . . goes further than any previous authority, because it is held that an attempted change in the law by a state court in a suit between its own citi zens raises a question under the Constitution of the United States, which may be taken advantage of on appeal from the highest court of the state. The actual decision in the Muhlker case, in like manner with that in the Gelpcke case, is a substantial aid to stability of contractual obligations and to justice. It would be exceedingly difficult, however, to answer the theoretical argument of Justice Holmes, with whom three of his associates concur in dissent. The gist of his reasoning is that the federal court is bound by local decisions as to local rights in real estate, and equally bound by the distinc tions and limitations of those rights declared by the local courts. As general propositions, these statements are, of course, true; but the majority of the court recognize a vested right in the maintenance of a former decision if the highest federal court, itself determining the existence and extent of the contract, holds that an attempted distinction is not legitimate or substantial. . . . "The Gelpcke and Muhlker cases are suffi cient authority for the general proposition that a judicial decision relied upon by an investor is such a contractual element as would constitute a property right. If it violate the guarantee of due process of law to take private property for a public use without compensation, a fortiori it would do so to take it for private use or enrichment. Indeed, there is no valid process of law by which private property may compulsorily be acquired for private use. "On the whole, there appears to be ade