By this case we are told, however, that the different, but paramount, sovereignty is less disposed to interpose its authority than the state courts might be, at least in fiscal matters.

But why should this reluctance on the part of the "different, though paramount sovereignty" confine. itself, if it does so confine itself, to fiscal matters? Is there not the same underlying principle when there is a question of interference with the operation of any state law? Take, for example, the injunctions put in force by federal circuit courts in regard to railroad rates. It is, of course, conceded that if there is a clear equity showing that resort to law will not bring adequate relief, a court of equity should entertain the case.

Should not, however, this principle of reluctance, if it is a good principle at all, go further than is indicated, or as we under

stand to be indicated, by the Boise City case? If the case is one of proper equitable cognizance, but a state court of equity may be as well appealed to as a federal court of equity, with the federal supreme court to be finally appealed to as regards federal rights, why should not the federal supreme court tell the litigant that this different, but paramount, authority denies you relief, because the state court was open to you in this matter, where you are resisting the operation of state law?

One feels in reading Justice Moody's opinion that such is the disposition of the federal supreme court, but in the case we are considering, it was said there was no clear equity involved and complainants' remedy was adequate, though not so convenient.

To us it has always seemed that it was largely a guess for a federal circuit judge to draw the line between a compensatory and a confiscatory rate for a railroad, and

that he knew about as much when he granted an injunction about this, as when a lot of statistics had been cooked up for his perusal. But these judges have always seemed quite willing to hazard an interfering guess on those subjects.

If, however, the proposition may be firmly established, that these interferences may be abortive, because "the same reasons" which would bring relief in state courts might fail in federal courts, because of reluctance of the paramount sovereignty to interfere, when no sufficient reason for not going to the state forum appears, people will begin to feel that there is no outsider constantly standing guard over state authority.

the

In the Boise City case the supreme court said in effect, that it did not care whether the water company had a good case or not. It had no business troubling a federal court about the matter. This, we believe, salutary principle, and the more forcibly it becomes impressed on the federal circuit and district judges of this country, the more it will gather appreciation for itself.

If one suspected that federal judges of inferior courts wished to increase their importance by a sort of accretion to their power, he could find much in their course to confirm his suspicions, and look upon the opinion we have been considering as something of a warning from a tribunal content with its eminence, as the head of a great department in our great country.

The federal supreme court does not have to reach out for other things to make it respected. It is so eminent, that it increases respect for itself fully as much by a wise restraint in the exercise of power as by its use. It can rightfully feel no jealousy of state courts, which more nearly are the courts of the people. "It is excellent to have the strength of a lion, but not to use it like a lion."

NOTES OF IMPORTANT DECISIONS.

OF

LIBEL EXCESSIVE ADVERTISING PROPERTY FOR TAX SALE AS CONSTITUTING LIBEL.-In New Hampshire where "it is well settled that the truth is not always a defense to an action on the case to recover damages for the publication of a libel," a rather curious case of an action in damages Hutchins V. for libel was lately decided. Atl. 689. 72 It refersaid was page, The rule there ring to a prior case that: suggested that if the occasion be lawful the motive for the publication is immaterial, if the truth of the charge be established, was case arose in materially modified, when a which the question was directly in issue. That case said: "It seems to us that in order was lawful to settle whether the occasion we must generally inquire into the motives of the publisher. There may be many cases where the occasion renders not only the motive, but the truth of the communication immaterial." But in the great majority of instances, and certainly in the present case, the lawfulness of the occasion depends upon the good faith and real purpose of the publisher." Now getting to the case non-suit ordered after the report shows a

* * *

"the plaintiff's counsel stated in opening his case that he expected to prove that the defendant, being tax collector for the city of Portsmouth and having an overdue tax against the plaintiff, advertised the property for sale by posting the notices required by the statute and also by publishing like notices in two newspapers, these latter publications being alleged to have been made maliciously and for no purpose except to injure

plaintiff."

RATE REGULATION-THE LINE BETWEEN COMPENSATORY AND CONFISCATORY RATES.-A late case decided by the Supreme Court of Iowa, in which the gas light rates of a gas company were involved shows a very thorough consideration of all evidence as to the cost of a plant with the purpose of determining whether the rates fixed by a city ordinance were confiscatory. See Cedar Rapids Gas Light Co. v. City of Cedar Rapids, 120 N. W. 966. The opinion stresses strongly the principle that fixing rates "is purely a legislative function. The court's duty ends when it has found that the rates are not so low as clearly to be confiscatory in character." The opinion also quotes the following utterance by the Supreme Court of the United States: "Judicial interference should never occur unless the case presents clearly and beyond all doubt such a flagrant attack upon the rights of property under the guise of regulations as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensation for private property taken for the public use." San Diego Land & Town Lot Co. v. National City, 174 U. S. 739, 43 L. Ed. 1154.

In a prior case from the same city, where the question of water rates were involved (Cedar Rapids Water Co. v. Cedar Rapids, 118 N. W. 234, 91 N. W. 1081, it was said: "The court cannot undertake to guaranty the (water) company any fixed or certain return on its investment. The exercise of such a power would work an utter destruction of the legislative right to regulate rates of water companies and other corporations operWe think the ating works of public utility. decisions have gone to the verge of safety in nullifying legislative acts of this character, and to go farther and say that the courts will not only preserve property from confiscation and destruction by legislative power, but will also assure to its owners a definite and fixed rate of profit upon their investment would be an act of judicial usurpation." The Federal Supreme Court said in a similar case: "Where the case rests, as it does here, not upon the observation of the actual operation under the ordinance, but upon speculation as to its effect, based upon the operations of a prior fiscal year, we will not guess whether the substantial return certain to be earned would lack something of the return which would save the effect of the ordinance from confiscation. It is enough that the whole case leaves us in grave doubt." Mayor, etc., City of Knoxville v. Knoxville Water Co., 29 Sup. Ct. 148.

It ought to be at least in the case of a city ordinance, which is so easily and readily amendable, to be presumed by the courts,

that if the rates fixed therein wrought injustice after a fair trial, that it would be amended. Certainly no city could be disposed to desire to bankrupt its public service corporations. But further than that it would seem manifestly proper for a court to do as the Iowa Supreme Court, dismiss a bill, where confiscation is not clearly shown, under the influence of a spirit that sees the matter as the following quotation implies: "Should the ordinance, after being put in operation and given a fair test be found to deprive plaintiff of a fair return on its investment, it ought not to be deprived of an opportunity of again presenting the matter in court."

(2) The public rights over the shore existed not as land, but as water rights, to be exercised when the land was covered with the tide. Blundell v. Catterall, 5 Barn. & Ald. 268; Lorman v. Benson, 8 Mich. 29. Water courses are regarded as public and navigable in most of the states, although only capable of being used for floating logs or lumber; and although their usefulness for that purpose is limited to certain seasons of the year. "By the Roman civil law rivers in which the flow of the water is perennial belonged to the public and were navigable if capable of being navigated in the common sense meaning of that term. The rule of the civil law has ever prevailed in the United States, and is another instance of our great obligation to that system... All streams are deemed navigable which in their natural state and in their ordinary volume of water of transporting to market the products of the fields, forests and mines.

To Reach Navigability the Riparian Ow ner may Have to Depend More Largely Upon the Exercise of a Right Which is Common to the Public, Than Upon Any Right Exclusively His Own.-If he has a wharf, he may be able to step from it to the largest boat that sails the stream. But on the other hand a long stretch of shallow water may separate his high land from the point accessible to ordinary boats, and to reach it he may have to depend upon a light boat. Would the same legal principles determine his right to compensation in both of these cases when his access to navigability was cut off by a public work in aid of navigation?

V.

Where the Only Injury is an Obstruction to the Passage of Small boats From the Shore Line to Deep Water.-A case of this kind was presented to the United States Supreme Court in Scranton. Wheeler, and the court, by Harlan, J., said: "If the riparian owner cannot enjoy access to navigability, because of the improvement of navigation by the construction away from the shore line of works in a public navigable river or water and if such right of access, ceases alone for that reason to be of value, there is not within the meaning of the constitution a taking of private property for public use." case arose in Michigan, and the plaintiff owned the land to the middle of the stream. The public works consisted of a pier built across the plaintiff's submerged lands thereby shutting him off from access to the deep water, the water between his dry land and the pier being only five feet in depth. Thus

This

Ten Eyck v. Warwick, 75 Hun. 562. Navigability for pleasure is as sacred in the eyes of the law as navigability for any other purpose. Grand Rapids v. Powers. 89 Mich. 94. Waters which are capable of use for boating or sailing for pleasure should be considered navigable, as well as those which are capable of use for mere pecuniary profit. Lamphrey v. State, 52 Minn. 181, 18 L. R. A. 670. And in Wisconsin, although the plaintiff owned land on both sides and the bed of the river the defendant committed no trespass in stepping from a public highway into a boat in the stream and fishing therefrom against the protest of the plaintiff. Willow River Club v. Wade, 42 L. R. A. 305. See note to this case for further authorities on navigability.

(3) 179 U. S. 164, 45 L. Ed. 138.

the plaintiff had still the right to step from his shore land to his small boat as freely as before, his power to bring that boat to deep water was destroyed." But the pub lic generally were as much incapacitated in this respect as the plaintiff. The result

ing inconvenience was of course much greater to the plaintiff than to the general public, for he was probably the only one who would find it of advantage, to go directly from the main channel of the river to his own shore, or from his own shore to the main channel. It was contended by Mr. Justice Shiras, with whom concurred Mr. Justice Gray and Mr. Justice Peckham, that this special advantage should be regarded as private property within the protection of the constitution." But the majority of the court held otherwise.

In New York Where the Value of a Wharf is Impaired or Destroyed-In the case of Frost v. Washington County R. Co., decided by the Supreme Court of Maine in December, 1901, it appeared that the plaintiff was the owner of a grist mill and wharf, situated on a navigable cove off of Passamaquoddy bay about three quarters of a mile from the entrance to the bay. The cove was apparently navigable for seagoing boats up to plaintiff's wharf. Acting under authority from congress, the de

(4) Of course, conceding the right of the plaintiff to wharf out to deep water his power to do this was also destroyed. But he had not undertaken the construction of a wharf.

V.

(5) 179 U. S. 170, 45 L. Ed. 140. Compare this case with Marshall Ullewater Steam Nav Co.. 7 L. R. (Q. B.) 166, 41 L. J. (Q. B. N. S.) 41, 25 L. T. (N. S.) 793, where it is held that if a pier is built so that it obstructs the riparian owner's access to navigability, he may make use of the pier. Slinggerland v. International Contracting Co., 169 N. Y. 60, 56 L. R. A. 494, decided Dec. 10. 1901, presents facts similar to those involved in the Scranton case. The abutter's access to navigability was cut off by a contractor engaged under government authority in dredging for the purpose of improving the navigation of the Hudson river between the Troy state dam and Coxsackie. The New York court followed the Scranton case, holding that access cut off as the result of an improvement to navigation would give no cause action. The court suggested, however, that the case might be different where improvements such as wharves or piers were impaired in value. See also Patten Paper Co. v. Kaukauna Water Power Co., 90 Wis. 370, 28 L. R. A. 443, but see also 172 U. S. 58, 93 Wis. 287.

(6) 96 Me. 76, 59 L R. A. 68.

of

It could

fendant in the construction of its railway, erected a bridge across the cove so as to shut plaintiff off from access to the bay and to the sea, thereby destroying the value of his wharf, and impairing the value of his mill. It appears further, that after the erection of the bridge it was expressly approved by congress." The court said: "This claim, (the claim of the plaintiff for damages) cannot be sustained. The only right of the plaintiff interfered with, by the defendant company was his right of navigation by water in and out of the cove through the channel. This right of the plaintiff, however, was not his private property, nor even his private right. not be bought, sold, leased or inherited. He did not earn it, create it, or acquire it. He did not own it as against the sovereign. The right was the right of the public, the title and control, being in the sovereign, in trust for the public, and for the benefit of the general public and not for any particular individual. The plaintiff only shared in the public right. He had no right against the public. The sovereign had the absolute control of it, and could regulate, enlarge, limit or even destroy it, as he might deem best for the whole public; and this without making or providing for any compensation to such individuals as might be inconvenienced or damaged thereby. The sovereign cannot take private property for public uses, without providing for just compensation to its owner, but this constitutional provision does not limit the power of the sovereign over public rights. If in evolution of life and commerce the sovereign comes to believe that the public good will be increased by the creation of some new or additional means of communication or commerce at the expense or even sacrifice of some older one enjoyed merely as a public right, the sovereign can so ordain, even to the detriment of individuals. If in the judgment of the sovereign, a railroad across a navigable channel of water, and completely obstructing its navigation, is of more benefit to the public than the navigation of the channel, he has the unrestricted

(7) 31 Stat. at L. 74, chap. 187.