Page:Harvard Law Review Volume 32.djvu/113

RECENT CASES 79 its rates to the point that they are again just and reasonable,^^ Of course, the converse is true as to contract rates which changing condi- tions may render too high and unjust and unreasonable to the public.^*' These principles apply equally to contracts which for any reason become discriminatory.^^ As stated in a recent case the public service acts have not changed the law in this respect.^ Obviously, a contract the performance of which thus conflicts with the legal duty owed by the utility enterprise to the public is unlawful and outside the protection of the contract clause of the State or Federal Constitution. Quare : — Would it not be desirable, in view of the modern public service acts empowering the commissions to restrict competition, to treat all long term contracts fixing rates for public service as void ah initio, because inherently tending to violate the basic policy of regula- tion of public utility rates as herein explained.^ RECENT CASES ADMi>fiSTRA'noN — Res Adjudicata — Effect of Decree of Probate Court on Intestate Realty. — An intestate decedent, domiciled in Illinois with all his real and personal property in that state, left a son and several brothers and sisters all domiciled in Kansas. The Illinois county court, with probate jurisdiction over his estate, decreed after service by pub- lication on the non-residents that the brothers and sisters were the heirs. The personal property was distributed accordingly. The son did not appear. He now brings a bill in equity in the Illinois Circuit Court to obtain the real estate as sole heir. Held, he is not estopped by the probate adjudication. Hosier v. Osborn, 119 N. E. 924 (111.). At common law realty passed directly to the heir. But in Illinois by statute realty is treated in the same manner as personalty for the law of descent of real property. See 1917, Kurd's Rev. Stat. III., c. 39, § i. The Illinois Constitution also says that the county court, having probate juris- " Oklahoma Natural Gas Co. v. Corporation Commission of Oklahoma (Okla.); P. U. R. 1918 D, 515 (1918); Northampton, Easton & Washington Traction Co. v. Board of Public Utility Comm'rs, 102 Atl. 930 (N. J.) (1918); State Public Utilities Commission v. Chicago & West Towns Ry. Co., 275 111. 555; 114 N. E. 325 (1916); City of Louisiana v. Louisiana Water Co. (Mo. Pub. Serv. Comin.)P. U. R. 1918 B, 774- For these principles applied to a municipal franchise see Atlantic Coast Electric Ry. Co. V. Board of Public Utihty Comm'rs, 104 Atl. 218, 220 (N. J.) (1918). 2" Whitcomb v. Duquesne Light Co. (Pa. Pub. Serv. Com. 1916), P. U. R. 1917B, 979- "^ State ex rel. American Union Telegraph Co. v. Bell Telephone Co. of Missouri, 22 Albany Law Journal, 363 (St. Louis Cir. Ct.) (1880); The Inter-Ocean Pubhsh- ing Co. V. The Associated Press, 184 111. 438, 450; 56 N. E. 822 (1900); Birmingham Waterworks Co. v. Brown, 191 Ala. 475, 67 So. 613 (1914). ^ See Atlantic Coast Electric Ry. Co. v. Board of Public Utility Comm'rs, supra. ® See Manitowoc v. Manitowoc & Northern Traction Co., 145 Wis. 13, 129 N. W. 925 (1911); Wolverton v. Mountain States Tekphone & Telegraph Co., 58 Colo. 58, 142 Pac. 165 (1914); Atlantic Coast Electric Ry. Co. v. Board of Public UtiUty Comm'rs, supra.