Company, 114 U. S., 615, involved a similar question of law. On the trial in the circuit court, the court instructed the jury to render a verdict for the defendant. The judgment was sustained by the Supreme Court on the grounds stated in Railroad Company vs. Houston. When the case of the Grand Trunk Railway Company vs. Ives, 144 U. S., 408, came before the Supreme Court in 1891, the court appears to have entertained very different views upon the subject of contributory negligence. In the circuit court upon the trial of the case, the plaintiff had recovered judg ment against the railway company for the negligent killing of plaintiff's intestate. The railway company contended that on the principles announced in the Houston case and the Schofield case the jury should have been instructed to render a verdict for the defendant. The deceased was killed while crossing the company's track. The court, however, sustained the judgment below and announced the law to be as follows: "The policy of the law has relegated the determination of such questions to the jury under proper instructions from the court; it is their province to note special circumstances and surroundings of each particular case and then say whether the conduct of the parties in that case was such as would be expected of reasonably prudent men under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only when the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court." Does any one claim that this is reconcilable with the views announced in the Houston and Schofield cases? In the Houston case twelve jurors, presumably reasonable men, (the contrary not appearing in the reported case) found that the plaintiff was not guilty of contributory negligence. The trial judge, by sustaining the verdict, found likewise. Yet the Supreme Court held that a verdict should have been directed for the defendant. Thirteen men who heard the evidence and who constituted the tribunal of court and jury to try the cause not only did not differ on that subject but agreed for the plaintiff. The Supreme Court threw the plaintiff out of court. In the Schofield case both the trial

court and the appellate court had refused to allow the jury to consider the question. Is it, therefore, correct to tell us in the Ives case that it is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court? In view of these conflicting decisions it would naturally be anticipated that later decisions would return to the rule of the Houston and Schofield cases. Such, in fact, is the case. In Northern Pacific Railroad Company vs. Freeman, 174 U. S., 379, another crossing case, the plaintiff, a widow, had brought suit against the railroad company for the death of her husband, which occurred at a crossing of the railroad in Chehalis County, Washington. In the circuit court the plaintiff recovered a judgment for $9,000 which was affirmed by the circuit court of appeals, one judge dissenting. It appears, therefore, that twelve jurors and the trial judge had found that the conduct of the deceased did not amount to contributory negligence and that two judges of the circuit court of appeals concurred in this view. Notwithstanding the doctrine of the Ives case and notwithstanding that the reasonable men constituting the judges and jury in the lower courts differed with the Supreme Court on that subject, the latter court reversed the judgments of both the trial court and the intermediate court on the ground that the deceased was guilty of contributory negligence as a matter of law, citing in support of the decision the Houston case and the Schofield case. The Ives case is not mentioned in the decision. The Ives case will remain as a stumbling block to the profession until the court informs us some years hence that it was impliedly overruled in the Freeman case.

In many cases the Supreme Court has held that the federal courts will follow that construction of a state statute which has been adopted by the highest court of the state. Fairfield vs. County of Galatin, 100 U. S., 47. Duncan vs. McCall, 139 U. S., 449. Miller vs. Ammon, 145 U. S., 421. Miller vs. Anderson, 150 U. S., 132. The court is also committed to the self-evident truth that a corporation is a creature of statute and the statute is the law of its being. Oregon Railway and Navigation Company vs. Oregonian Railway Company, 130 U. S., 1. Yet these decisions were not considered applicable in the case of Clark vs. Beaver,

139 U. S., 96, where the question was whether a person receiving from an Iowa corporation stock in that corporation at twenty cents on the dollar in payment of a debt due him by the corporation could be held liable to creditors for the remaining eighty per cent. of the value of the stock. Though the Supreme Court of Iowa had held in Jackson vs. Traer, 64 Ia., 469, in passing upon the identical transaction, that the corporation statutes of that state made the recipient of stock liable for the par value thereof less any sums paid by him thereon, the federal Supreme Court refused to apply this doctrine and held that no recovery for the deficiency could be had by the creditors. The court justifies this decision by the statement that on questions of general law it is not bound by state decisions. But there is no general law, either common or statutory, under which corporations can be organized. They are organized only under statutes passed by the states or the federal government. And the rights, powers and obligations of the stockholders are to be determined by the laws from which the corporation derives its existence. There is no logical ground for departing from the state's construction of its own statute affecting the liabilities of corporate stockholders. This decision calls to mind the forcible but expressive language of the able editor of the American Law Review, who, in noting the tendency of federal courts to lay down legal principles at variance with those adopted by the highest courts of the states in which the transactions have arisen, tells us that the federal courts, under the guise of general or commercial law, are creating a system of legislation that "the federal legislature could not enact and cannot repeal."

On the question of the assessment of property for local improvements, one recent case appears to be a departure from the constant line of federal decisions extending over a long period. In Spencer vs. Merchant, 125 U. S., 345, the court held that the legislature in the exercise of its power of taxation has a right to direct the whole or a part of the expenses of a public improvement, such as laying out, grading or repairing of a street, to be assessed upon the owners of land benefitted thereby; that the determination of the territorial district which should be taxed for the local improvement is within the province of the legislative discretion; and that the act of the legislature defining the district to be assessed is not

subject to judicial investigation. Similar views were expressed in Williams vs. Eggleston, 170 U. S., 304, and Parsons vs. District of Columbia, 170 U. S., 145. A recent case, Norwood vs. Baker, 172 U. S., 269, while not necessarily involving the principle of assessments for street improvements by the front foot or other fixed rules, does by way of dictum at least hold that all such assessments must be based on actual benefit received and that the existence of the benefit is a judicial question of which the courts cannot be foreclosed by legislative declaration; that the court may investigate the actual benefit received, and if the assessment exceeds the benefit, may restrain the carrying out of the proceedings as a taking of private property for public use without compensation. No one can question the justice of the result in the Norwood case. The case arose from the attempt on the part of the village of Norwood to take a portion of Baker's property for a public street and assess on the remainder the entire sum awarded as compensation for the portion taken as well as the costs of the proceedings. This was a mere confiscation, under legal forms, and it was not necessary to question the legality of a system of local improvements which has become finally imbedded in the jurisprudence of many of the states, in order to prevent the injustice thus attempted. It will not be long, I apprehend, before the Norwood case will be restricted by some explanatory decision to the point actually involved and the general rule announced in Spencer vs. Merchant will be restored as the general law relative to local assessments.

But perhaps the income tax case is the strongest case evidencing the tendency of the court to depart from precedent. Within five years after the inauguration of the Government under the constitution, Congress levied, without reference to apportionment, a tax on carriages for the conveyance of persons. The act received the approval of Washington. Its validity came before the Supreme Court in the case of Hylton vs. United States, 3 Dall., 171. In that case it was held that the tax was not a direct tax within the meaning of the Federal Constitution and that the expression "direct taxes" in that instrument includes only capitation taxes and taxes on land. While different reasons were given by the justices who decided the case, the Hylton case was generally con

sidered as establishing the definition of "direct taxes" to be as I have stated, and this understanding prevailed for a hundred years. In the meantime, in a number of cases, the Supreme Court had adhered to the same doctrine. Pacific Insurance Co. vs. Soule, 7 Wall., 443; Veazie Bank vs. Fenno, 8 Wall., 533; Scholey vs. Rew, 23 Wall., 331; Springer vs. United States, 102 U. S. 586. To supply a revenue during an exhaustive civil war, an income tax was enacted, enforced and held valid by the Supreme Court. Yet in Pollock vs. Farmers Loan & Trust Co., 174 U. S., 429, these decisions, recognized as the law for a hundred years, are brushed aside as a century of error, and the court, through a majority of its members, adopts what commends itself to them as the more reasonable construction of the Constitution. Passing over the discussion in the majority opinion regarding the meaning of the expressions direct tax, ""excise" etc., what was the real reason for departing from that construction of the constitution which had prevailed from the earliest times? I think the real reason lies in a distrust felt by the judiciary towards the legislative department of the Government. The argument of Mr. Choate, whose address was probably the most potent factor in bringing about the final result, bristles all over with the idea, iterated and reiterated, that the income tax law of 1894 was the first step in the onward march of a communistic movement, which if not checked, might end in the spoliation of the wealthy states and the practical exemption of the poorer states from all contribution towards the national expenses. Because certain incomes were exempt under the law of 1894, it was feared that a later act might be passed which would contain more liberal exemptions and fix a higher rate of tax on large incomes, and so on, until the whole revenue of the Government should be levied upon a few wealthy individuals. The fear that progress in this direction might be made by Congress was, I believe, the controlling thought that led the majority of the court. to hold the act invalid, and in so doing, to over-rule what had been. considered the settled construction of the Constitution. It was a mistake for the court to be influenced by these views, if it was influenced. The dangers that Mr. Choate painted so vividly can never be realized so long as the majority or any large number of the American people are faithful to the principles on which this