In Louisiana, it is held that an ordinance pursuant to statutory authority, making it illegal to sell adulterated milk and imposing a penalty therefor, does not deprive dealers in milk of property without due process of law.22

An act providing that if milk shall be shown on analysis to contain more than 80 per cent of watery fluid, or to contain less than 13 per cent milk solids, it shall be deemed to be adulterated, has been held constitutional.2

So, a Rhode Island statute providing that if milk shall be shown upon analysis to contain more than 88 per cent of watery fluids, or to contain less than 12 per cent of milk solids, or less than 2 per cent of milk fats, it shall be deemed adulterated, has been held not unconstitutional as unequal and partial in its operation in that it discriminates in favor of the owners of cows which give rich pure milk, against the owners of cows which give milk of inferior quality, enhancing the value of the former at the expense of the latter.24

And a statute prescribing a penalty for selling on Sunday and exempting markets and dealers in provisions, ice cream, milk, etc., and druggists, hotels, ice dealers, etc., is not unconstitutional, the exemption not being in favor of certain articles that others are inhibited from dealing in, but being an exemption in favor of certain articles of merchandise as common necessities.2

25

Transient or Nonresident Dealers.

Milk drawn from cows outside the city is not unconstitutionally discriminated against by a municipal ordinance prohibiting its shipment into the city unless the cows shall first have been subjected to the tuberculin test, and an official certificate of their freedom from tuberculosis or other contagious diseases filed with the health officer, while the regulations relative to cows within the city forbid the sale of milk from sick or dis

22 State v. Fourcade, 45 La. Ann. 717, 40 Am. St. Rep. 249, 13 So. 187.

23 Com. v. Evans, 132 Mass. 11.

24 State v. Smyth, 14 R. I. 100, 51 Am. Rep. 344.

25 Searcy v. State, 40 Tex. Crim. Rep. 460, 50 S. W. 699, 51 S. W. 1119, 53 S. W. 344.

Nor is the equal protection of the laws denied to persons who supply milk to cities, towns, and villages for consumption, by a statute compelling them to register their herds or cattle with the live-stock sanitary board, where it applies to all persons of that class, though it does not apply to every person who may occasionally sell milk in the country.27

So an act imposing a fine upon anyone who shall establish a tent, booth, or place for vending provisions or refreshments, within a certain distance of any camp meeting in progress, without the permission of those in charge of such meeting, but providing that anyone having a regular place of business within such limits is not required to suspend his business, has been held not invalid as being in restraint of trade or creating a monopoly or making discriminations, but is a valid law, tending to prevent disturbance and disorderly conduct.28

But rules of a state board of live stock commissioners providing for applying a tuberculin test to all cattle which are brought into the state for dairy or breeding purposes, but exempting all other kinds, are invalid as producing unwarranted and illegal discrimination between different classes of cattle.29

Locality.

An Alabama court, in holding constitutional a municipal ordinance which, among other things, provided for the establishment and regulation of markets at several points in the city of Mobile, and prohibited the sale of fresh meat at retail outside of those markets except by

26 Adams v. Milwaukee, 228 U. S. 572, 57 L. ed., 33 Sup. Ct. Rep. 610, affirming 144 Wis. 371, 129 N. W. 518, 43 L.R.A. (N.S.) 27 State v. Broadbelt, 89 Md. 565, 73 Am. St. Rep. 201, 43 Atl. 771, 45 L.R.A. 433.

28 Meyers v. Baker, 120 Ill. 567, 60 Am. Rep. 580, 12 N. E. 79.

29 Pierce v. Dillingham, 203 Ill. 148, 67 N. E. 846, 62 L.R.A. 888.

tenants of the market stalls, who were permitted to hawk about the streets after 8 o'clock A. M. of the day, said that if the clause which discriminates in the matter of peddling on the streets, between tenants of stalls and those who were not, vitiated the ordinance to any extent, it was only to the extent of voiding the exception, or giving to all persons the benefit, and allowing others as well as lessees of stalls, the privilege of peddling about the streets.80

So, a city ordinance prohibiting pri30 Ex parte Byrd, 84 Ala. 18, 5 Am. St. Rep. 328, 4 So. 397.

31 Lamarque v. New Orleans, McGloin (La.) 28.

32 State v. Bridgeman & R. Co. 117 Minn. 186, 134 N. W. 496.

vate markets to be kept within a radius of six squares of any public market has been held not void as creating monopolies or as infringing the equal rights of individuals.81

And an act to prevent unlawful discrimination in the sale of milk, cream, and butter fat has been held not to violate the equality provision of either the state or Federal Constitution, or the prohibitions of the state Constitution as to special legislation.32

Jnow Rambislam

AN important feature of the forthcom

ing annual meeting of the American Bar Association will be the conference of judges scheduled for Saturday, August 30th, at eight P. M. This conference was arranged by the committee on Uniform Judicial Procedure, consisting of Messrs. Thomas W. Shelton, Jacob M. Dickinson, W. B. Hornblower, Louis D. Brandies and Joseph N. Teal. The chief judge of the highest appellate court of each state, the senior circuit judge of each Federal Circuit and the chief justice of the Court of Appeals of the District of Columbia have been invited to take part in the meeting and nearly all have accepted.

The only formal part of the meeting will be a brief address by Hon. Thomas W. Shelton, chairman of the committee; an official statement by President Frank B. Kellogg or Secretary George Whitelock; a few words of welcome by Hon. Jacob M. Dickinson; a short discussion of the progress of procedural reform in New York state, by Hon. W. B. Hornblower; an address by Attorney General McReynolds and by ex-president Taft, if he arrives in time. The chief justices will then enter upon the conference and will probably perfect a permanent organization. No topic has been suggested to the distinguished delegates since it is their advice that is sought.

The committee state:

"This is the very first effort to consider in convention interstate judicial relations-to promote uniformity of law with uniformity of decision and to foster uniform pleading and procedure. The growth of interstate judicial relations may be as deliberate as that of interstate commercial relations but this conference marks the beginning of a new era full of promise as it evidences a feeling of good will and mutual tolerance characteristic of the big, broad-minded men who compose the judiciary of this country. These elements are its salvation and its strength and give promise of rapid progress. The earnestness and unselfish patriotism displayed by the judges in accepting the invitation of the Bar Association to give the Committee the benefit of their invaluable aid and advice deserve the highest appreciation."

A conference of this nature ought to prove a permanent feature of each annual meeting of the Association. It will add dignity and strength to the campaign now being conducted by the committee to bring about a uniform system of pleading and procedure on the common law side of the Federal courts, in the hope that the several states will in time adopt their systems to conform to it.

GAINST the many acknowledged virtues of the common-law system of law deduced from reported precedent, virtues such as adaptability, flexibility, and capacity for self-development and growth, have continually been

set the alleged demerits that it was unscientific, that it was crude and formless, that it was too slow in its responses to new conditions. The facts that in all important English speaking communities the common law, with its system of precedents, furnishes the basis of all law; that it has there survived the test of use and experience; that the essential justice in the English and American laws is surpassed by no other system and approached by few other nations, ought to persuade one that the common law is thoroughly systematic and scientific; because an unsystematic and unscientific system could not probably produce the very qualities wherein it excels. If it were the sole product of judges legislating under the guise of deciding, and if the labors of the judges were left untouched to serve as the final contribution to the evidences of the unwritten law, chaos, delay, and uncertainty might be. expected as the result; but the common law has never been a purely judicial product, however true it may be that the cases have been such. For, to use a common quotation, "the law is in the cases, but the cases are not the law." Therefore to know and state the law requires a post-judicial operation, just as it required the office of lawyers to evoke the decision which contains the law.

Makers of the Common Law.

Three classes of lawyers, then, have made the common law,-the advocates, the judges, and the writers, and each one of these classes has played a vital and an indispensable part. The advocate has presented the question, the court has decided, and the writer has recorded and expounded the precedent, each limited to the particular occasion and duty. Because of that limitation their correlative tendency has been to keep each other's has solved many problems that no a priori operations true, and their combined skill system of laws or codes could have coped with.

Systematizing the Case Law.

Now the reason that the system of precedents has not produced an unscientific and chaotic law, and that the law has not been overwhelmed in mere numbers of precedents of widely varying worth and authority, is because it was the special business of the writers to deal with and prevent those particular tendencies. From the beginning they have done that work by devising methods and forms of books suitable to the needs of their times. They have so far done it well, and so long as "man can do what man has done," we may expect them to do it well.

Classes of Writers.

Of the writers there are three prime classes, viz., the reporters, the digesters, and the commentators whose work is now principally done by the annotators. None of these classes is very distinct, though their functions cleave sharply. Ofttimes the work of performing two or more of these functions, such as reporting and

annotating, has been done by one writer and published in the same book or set of books. Often, if not usually in the present day, such work is done by a highly organized and co-ordinated staff of writers, for in no other way can the mass of current and past decisions be managed.

The work of the reporter and that of the digester of cases is familiar, and the forms in which their work appears in print are not greatly various. They need no testimonial or any introduction to a profession that has known them both by name for hundreds of years. But the commentator and his modern progeny, the annotator, is a writer of many degrees and differences. His work and methods have been forced through many developments, and undergone undergone many changes. Some have taken the name of annotator who were not worthy, while there are "commentaries" and treatises that are really nothing but digests. There are real commentaries nevertheless in this day, such as the Criminal Law Treatises of Wharton, Wigmore's Evidence, and Labatt's Master and Servant, and others equally well-known. We can pass from all these to the annotators, for this is frankly a special plea in their behalf. They are now doing what may, perhaps, be as great a work for the common law as ever has been done, and that is the rectification and harmonizing of it into uniformity and systematic accuracy.

The Great Commentators.

For several centuries in the history of the common law the need for such work was amply supplied by the great commentatorial and institutional works of Coke, Hale, Blackstone, and Kent, and the special treatises contemporary with them. Precedents were not numerous then as compared to now, and the office of the writer was as much to suggest the undeveloped doctrine for which no precedent existed as it was to reconcile and elucidate. Nevertheless there were annotators in those days worthy of the name. Occasionally they combined annotating and reporting, of which Serjeant Williams' notes to Saunders' reports may be noted as an example. His note to Pordage v. Cole, 1 Wms.' Saund. 319, 18 Eng.

Rul. Cas. 601, on Mutual Covenants in Contracts, is cited specially scores of times in the later books of reports, and may be said to have established for the law a systematic conception and analysis of that difficult subject. Very much of the work in Coke's Reports is essentially annotation. It does not avow that character by a typographical arrangement separate from the report of the case, as we do now. Indeed it is run into the body of the opinion, and at most is distinguished by the words, "But note reader that," etc., with which Coke was wont to introduce his own observations. Nevertheless it is annotation, and though Coke was sometimes criticized for it, as in the words of Lord Holt, who accused him of "improving" the reports (see Coggs v. Bernard, 2 Ld. Raym. 909, 5 Eng. Rul. Cas. 247, at 252), yet time has vindicated the work of Coke, and left such criticisms of bookish rather than practical interest. One eminent work of annotation, known well to all the old lawyers, was that in Smith's Leading Cases (vol. 1, 8th ed. p. 199), the forerunner of the great sets of selected cases of this day with their elaborate and exhaustive annotations.

Multitude of Cases Renders Annotation Necessary.

It is because of the great augmentation in the number of reported cases, due largely to the multiplication of separate jurisdictions in the United States, that to-day's problem for the special labors of the annotator has existed. When jurisdictions were few, and precedents not numerous, the practitioner and the judge were able and had the time to thread the reason and principles of the law through the cases well enough without the help of a modern annotation. There were not multitudes of subtly applied illustrations of general principle to minutely variant facts. Instead of fifty there were a dozen jurisdictions, perhaps, to diverge from uniformity of doctrine and furnish confusion of authority, or, which was just as bad, the appearance of confusion. There were few of the anomalous or exotic doctrines such as the water laws, the mining laws, or the adapted civil-law institutions, which the western and south

western states brought into the body of American law and the over-sea colonies into the body of the English law. Up to that time the practice of a careful lawyer was to read all the decisions of his own state as they were handed down, and it was not a great task to do it.

Digests or Cyclopedias.

even

Almost contemporaneous with the great augmentation of cases, in fact one of its consequences, began the development of the modern digest or cyclopedia. While these were necessary and invaluable contributions to legal literature, and by no means to be disparaged by any comparison, they did have the effect to reveal to the every-day lawyer either "too many cases in point" or else by a distributive analysis that he did not follow they placed analogous and cognate cases in different topics, and he failed to find them. Either condition was unbearable, and, if the lawyer had been left to himself, irremediable. It began to be said that there were too many cases reported, too much authority, and some wished for another Alexandrian burning of all the law books so that we might start anew. By poetic license the law was pictured as "a codeless myriad of precedents, a wilderness of single instances," which it never was and is not now. Nothing was wrong but that the common law had been growing and had outgrown the older forms of law books. The very same complaint was made by Justice Buller in 1786 (Birch v. Wright, 1 T. R. 383, 15 Eng. Rul. Cas. 626), when he suggests "wading through all of the old books" to "find a great collection of cases" in Comyn's Digest. Two years later, in 1788, Tomlin's Repertorium Juridicum (Dublin, 1788) announced in its preface that a "vast accumulation of cases," amounting to 25,000 in forty years, necessitated an easy mode of reference to them, to wit, what we would call an index digest. We have 25,000 cases each year to deal with, and do it with skill that Tomlin or Comyn never dreamed of.

Generalization the Work of the Annotator.

The truth is that in an evolutionary system of law like ours, wherein we gen

eralize from cases to doctrines, there can not be too many cases. The law is enriched, and not smothered, by its many cases. But the generalizing must be done by careful and accurate method and with adequate expenditure of time, neither of which the lawyer can be expected to bring to such work. And so it has come to pass that, after the work of the great commentators, and in sequence the work of the digesters, has been done, need has developed the modern annotator and his methods. His work relieves the common law from the necessity of a Justinian or a Napoleon to recodify our law; for when a "conflict of authorities" is rightly and patiently examined, and the cases explained in a good annotation, the conflict is often found to have been an appearance, and not a reality, or else the true and the fallacious are sifted so thoroughly that the lawyer as he reads is freed from doubt and vexation.

Selection and Value of Cases.

Such work as this that the annotator does cannot be done in a digest or a textbook, or by any other known method than annotation of some well-chosen case. (See note on Rule in Shelley's Case, 29 L.R.A. (N.S.) 963, for example.) There are thousands of trite and common-place cases fit only to be data from which the law may be deduced, or perhaps only to be illustrations of long settled and wellunderstood rules. They must be reported in some way, if only that time and the general judgment of lawyers may assign to them their true value among the precedents of the law. On such cases annotation is too valuable to be wasted. They present nothing that requires more than the reporter and the digester can give, until the time when the annotator shall need to compare them with all the other trite or common-place cases in the production of some exhaustive and clarifying treatment of an important doctrine. Purpose of Extra and Critical Annotation.

It is implied in the foregoing statements that the province of the annotator is chiefly within those departments of the law that are conflicting or vexatious, or full of varying minutiæ, or novel, requiring the aid of difficult analogies because