indefinable power, which like either arsenic or strychnine in materia medica is as dangerous in its misuse as it is beneficial under proper diagnosis.

The question before the federal court in the principal case was whether the ordinance already referred to interfered with interstate commerce, admitting that the business of the plaintiff, which was the maintenance of a correspondence school of instruction, was interstate commerce, about which it seems, there is some doubt and confusion among the decisions of the lower federal courts. The court unqualifiedly sustains the ordinances as within the police power of the municipality and therefore not an unlawful interference with interstate commerce. The court said: "This ordinance seeks to prevent the obstruction of the streets of a city by the solicitation of persons while traveling. It seeks to protect citizens from inconvenience and annoyance. It seeks to prevent interference with the good order of the highways and avenues of a city. It seeks to prevent them from being covered with scattered paper, and from being used as places of business, in a manner tending to interfere with the rights, comfort, and convenience of the public. It is unnecessary to cite the line of cases in which the supreme court has held that a city has, within its police powers, the right to make regulations promotive of domestic 'order. In my opinion, the ordinance in question belongs to this class of municipal legislation, is a regulation within the police powers of a city, and is not an interference with the reasonable conduct of the complainant's business."

With all due deference to the ability of the judge who wrote this opinion, this quotation evidences how superficially the most sacred rights of the individual are, in these latter days, bartered away for a mess of municipal pottage called "the good order of the municipality" or "the city beautiful."

We cannot see where such an ordinance

even remotely serves to promote the public

health, morals or safety, or exists for any other purpose than to meet some supersensitive person's idea of comfort and convenience. Under this ordinance it would

clearly be unlawful for churches, political committees or societies to circulate notices of their meetings, surely a matter of considerable convenience and a right in which every citizen may at some time be interested. So also it will be unlawful for selfsacrificing missionaries in our cities to circulate tracts or printed literature tending to improve the moral condition of the wayfarer into whose hands the tract is put as he rushes heedlessly by. Even under heathen and despotic governments, colporteurs of moral and religious tracts are seldom interfered with as they walk along the streets, handing a passerby the leaflet for him to read!

When will our courts assert the prerogatives given to them by the people to

save our constitutional liberties from such unauthorized and ill-advised assaults. Many courts are seeing the evil of such unwarranted legislation and are sternly forbidding its operation by the fiat of their disapproval. In re France, 63 Mich. 396, 6 Am. St. Rep. 310; Barling v. West, 29 Wis. · 307; Gilham v. Wells, 64 Ga. 192, and others that might be cited. If eternal vigilance is the price of liberty, we shall continue from time to time to raise our voice against such insidious encroachments upon constitutional guarantees of individual rights until either the courts or the people realize that the ultimate tendency of all such legislation which unnecessarily re-. stricts personal conduct is toward a government in which the majority shall rule without any limitation upon their power,

The police power is "undefinable." True, but it is not illimitable. It may suspend constitutional guarantees to meet three public emergencies already defined. Outside of these great general limitations it cannot go. The "good order of a municipality" is not such an emergency as will justify the suspension of the constitution. The day dreams

of some enthusiast are not "stuff" of suf

ficient importance that to materialize them,

all citizens must be called upon to surrender natural rights protected by constitutional inhibitions.

NOTES OF IMPORTANT DECISIONS.

WITNESSES-LIMITATIONS UPON THE TESTIMONY OF EXPERT WITNESSES NOT THE RESULT OF OBJECTIVE EXAMINATION. It is quite an important limitation upon the testimony of expert witnesses that such testimony shall be considered wholly inadmissible that is not the result of objective examination. Thus suppose a man to be injured on the street. There are three contingencies that would admit the expert evidence of physicians called to examine such injuries. First, as to statements made to the first emergency physician who chances to arrive. Such statements are admissible as part of the res gestae; second, as to statements made to the family physician made to secure a proper diagnosis for the treatment of his injuries and not in contemplation of future litigation. Such statements are presumed to be made under such conditions as to preclude the possibility of falsehood; third, statements and actions in the presence of a physician called in for the purpose of testifying as an expert in some future litigation. Such statements and actions are presumed to be self-serving and therefore inadmissible.

If,

This third class of expert testimony is thoroughly discussed in the recent case of Greinke v. Chicago City Railway Co., 85 N. E. 327, where the court says: "The rule is well settled, that a physician, when called as a witness, who has not treated the injured party, but has examined him solely as a basis upon which to found an opinion to be given in a trial to recover damages for the injury sustained by the injured party cannot testify to the statements made by the injured party to him, or in his presence, during such examination, or base an opinion upon the statements of the injured party. An expert witness called under such circumstances must base his opinion upon objective, and not subjective, conditions. therefore, it would have been improper for Dr. Cox to have inquired of the appellee as to the relative strength of her hands, or as to whether she could use her left leg as well as her right leg, or whether she could walk without dragging her left leg, and it would have been incompetent for him to have given to the jury the result of such interrogation by detailing to them her replies to said questions (as clearly it would have been), we think it equally clear that he could not reach the same result by having her answer his questions by a nod of the head or by the pressure of her hands, or by asking her to sit upon a chair, or to walk, and then giving to the jury the results of his observations. The declarations of an injured

party as to his physical condition, brought about as a result of injury, are self-serving, and, at the best, hearsay evidence. Statements, however, made by an injured party which form a part of the res gestae, or those made to his physician during treatment, constitute an exception to the general rule, and are admitted by reason of the fact that he will not be presumed to prevaricate at the very instant of his injury or while he is stating his physical condition to a physician from whom he expects and hopes to receive medical aid, nor will he be presumed to feign disease, pain, or distress under those conditions in which he is ordinarily observed by strangers or his friends and neighbors. No such safeguards, however, surround him when he is being examined by an expert whom he has employed to examine him and to give evidence in his case which is about to be tried in court. To permit the injured party, while undergoing an examination by an expert in his employ, by jerks and twitches, by a pressure of his hand, by turning his toes in or by dragging one of his legs when walking, to thus make evidence for himself, and then to permit his expert to go before the jury and bolster up and strengthen by his opinion the self-serving testimony thus manufactured by the injured party, would open up the door wide for the grossest fraud, which might work upon his adversary the most palpable injury. This character of self-serving testimony has been held incompetent by the Supreme Court of Michigan in McKormick v. City of West Bay City, 110 Mich. 265, 68 N. W. 148, and Comstock v. Georgetown Township, 137 Mich. 541, 100 N. W. 788, and the general rule announced by that court is we think, in entire harmony with the ruling of this court in the numerous cases hereinbefore cited, and is the correct rule and the one most conducive to justice. We do not intend to hold, however, that a physician may not be able, from an examination of an injured party, to form and express an opinion as to his physical condition and the probable cause which induced such condition, based upon objective testimony alone, but what we do intend to hold is that a physician who has not treated the injured party, but who has made an examination of the injured party solely with a view to testify as an expert, should not be permitted to express an expert opinion to the jury based upon subjective conditions, and then be allowed to fortify his opinion by stat. ing to the jury acts of the injured party which could have been purely voluntary and under the control of the injured party, and which may rest upon no other basis than the truthfulness of the injured party."

DUTY AND LIABILITY OF THE PRODUCER OF AN ELECTRIC CURRENT TO THE EMPLOYEES OF OTHER PERSONS WORKING ABOUT HIS POLES AND LINES.

This question involves several subsidiary points and we shall endeavor to discuss it by considering each point separately, and shall accordingly divide the thesis along the lines mainly of the persons to whom there is an obligation, the character of the obligation and negligence thereof and the duty and negligence of the person injured.

Generally speaking, where an electric company has any reason to believe that persons may come in contact with its lines of wire, it is its duty to take such precautions to prevent injury to those persons who may

come in contact with the lines from the current carried thereon. In the main it may be said that it is the duty of the electric company to cover or insulate its wires so that if in the course of their duty the employees of another are compelled to come in contact with such lines they may not receive injury. As a corollary to this rule, it is the duty of the electric company to make such inspections of the lines as will insure that the insulation which was originally sufficient continues perfect and if it finds that the elements or other causes have caused the covering to deteriorate, it becomes its duty

to renew the same.

The question of liability raised under the conditions proposed by our subject depends to a certain extent also upon whether it may be said that the person injured or killed was in a place where he had a right to be at the time of the injury, or was he a trespasser, and of sufficient age and intelligence so that the rule of attractive nuisances would not be applied to him? Having answered this question in the affirmative, the next inquiry is, should the producer of the electric current have foreseen that a 'person rightfully where the person injured or killed was, was liable to come in contact with its wires and that if he did come in contact with them that he would be injured. If it is determined that this is the case and that

the electric company should have foreseen injury from the exposure of its highly charged lines, the next question which arises is, could it have taken precautions which would have prevented injury? If it be found that such precautions, such as insulation or the use of guard wires, or the shutting down of the current, or warning that the current is to be put on, would have prevented the injury, then the inquiry changes its direction to the person killed or injured and it remains to be considered whether he neglected any precaution which a man of ordinary and reasonable prudence would have taken under those circumstances to avoid injury. In other words, should he have provided himself with non-conducting gloves, or should he have stood upon some non-conducting material, or should he have avoided contact with the lines or should he have avoided handling a conductor which was in contact with the lines which were charged?

Persons to Whom there is a Duty Owing and to Whom a Liability May be Incurred.

Of course, in the main, these questions of liability have arisen where linemen of other wire line companies have been killed or injured and the rule generally is that where such a lineman is compelled to work about the poles and wires of an electric company, that electric company is bound to take precautions for his safety. There are, however, some departures from this general rule, or perhaps it might with more propriety be said, some cases which apparently oppose it. For example, where a lineman employed by a telephone company was compelled to carry a telephone wire above and across the wires of the city fire department which wires were carried on poles in close proximity to the wires of an electric railway company, and when it became necessary for him to climb one of the fire department poles in order to get the wire across, because of which he was injured by a fall caused by a shock received from one of the fire department lines from electricity conducted thereon from contact with a railway feed wire, it was held that the railway company was not under any duty or obligation

to protect him. And in this connection the court said, in substance, that he had no permission from those operating the fire alarm system, to climb its poles. He climbed this pole without such permission and without even notice to the authorities, and consequently was a trespasser, and as he was a trespasser he took the risk incident to the trespass. The court further says that if he had had permission from the authorities in charge of the fire alarm system to use their poles, he would have been in a position somewhat analogous to that of a servant of a licensor, who while acting in pursuance of the license is injured by the negligence of the producer of the electric current and is entitled to recover; but where he leaves his proper place in the street, climbs a pole 23 feet high, without any permission from the owner of the pole, and is injured, he cannot recover unless he has given the railway company notice that he was going up the pole and unless it knew or should have known that its line was in contact with the fire department line.1 In a somewhat similar case, a telephone company was using the poles of a street railway company upon which ran a line used by another street railway company. A trouble finder of the telephone company found that the telephone line was receiving a current of electricity from the electric line. In order to get at the difficulty it became necessary for him to release one of the span wires which supported the trolley wires. In attempting to do this he received a shock of electricity which caused his death. The current came from the contact with the feed wire of the other railway company which did not own the poles or the trolley line sagging down. unto the span wire. The court held that neither company was liable, declaring that he had no business meddling with the span wire; that he was a trespasser in so doing and assumed the danger.2

These two cases, especially the last one, are somewhat extreme in determining who

are trespassers, but it is evident from them that there is no liability to a trespasser under such circumstances. And these two cases should be carefully compared in a manner which the limits of this article does not permit, with the other cases cited subsequently hereto. It should be recalled that in the last case especially, the telephone company had a right to run its line upon the pole and it might well be considered that implied by this right with the right of maintaining the line and following from this the right to handle the other lines on the pole for the purposes of so doing. We do not, however, desire to criticise these cases, for they are absolutely unimpeachable, except upon the question as to whether or not the lineman was a trespasser.

In a comparatively recent New York case, the Brooklyn Heights Railway Company carried the wires of the police department upon the structure by which its road was elevated, the city paying to the railway company rent for this privilege. Plaintiff department, who went upon the structure of was a lineman in the employ of the police the railway company for the purpose of repairing the police department line and was injured by contact with a trolley feed wire which the Brooklyn Heights Railway Company had suffered to become uninsulated. The court held that the plaintiff was neither a trespasser nor a bare licensee. He was rightfully entitled to be where he was when injured; that the defendant owed him the duty of exercising in his behalf ordinary care, which required the exercise of such care, both in the stringing of its lines and in their maintenance, as would prevent contact with them, regardful of the inherent danger from highly charged electric wires and mindful that from time to time both its own employees and those of the city might in the course of their respective duties, come in contact with them. Further the court declares that such care properly includes reasonable inspection to preserve the insulation from decay and the action of the elements, or from rubbing against some hard substance from the action