Page:Harvard Law Review Volume 8.djvu/191

SiECENT CASES. 77S go to the State, held void as in violation of the State Constitution, since (i) it prevents tte citizens of the State from carrying on a lawful trade, which can be done by the State only in the exercise of its police power. The Act in question is not a police regu- lation of business, since it is not intended to prohibit the sale of liquor, but to give the State a monopoly for the purpose of revenue ; (2) a statute which embarks the State in trade is not within the legislative power conferred on the Assembly by the Constitu- tion (Pope, J. dissenting). McCuUough et al v- Brown et al.. County Board, 19 S. E. Rep. 459 (So. Car.). The dissenting justice takes the ground that the purpose of the statute is to regulate the sale of liquor, by providing that it be pure, that it be sold only on a written order, to one known to the seller, and in sealed packages, and not to ruise revenue. He con- siders the Act, therefore, a proper use of the police power. It is interesting to note that, since this decision, the South Carolina Court has declared an Act ostensibly differing from the one in question, but substantially the same, constitutional. This is due to the fact that Gary, J.,a Tillmanite, has succeeded McGowan, J. Pope's dissenting opinion becomes the opinion of the court. The judges who held the former Act unconstitutional, of course, dissent. The decision has not yet appeared in the reports. Constitutional Law^ — Excessive Damages — Remittitur. — Held, by a divided court, that when the court has reached the conclusion that, in an action at law, the damages allowed were excessive, it may designate the excess and cut down the verdict by remittitur. Burdict v. Missouri J-ac. Ky. Co., 27 S. W. Rep. 453 (Mo.). The authorities upon this question are in conflict, but the present decision is in line with the majority of the American decisions. The dissenting judges held that the question of damages is purely one of fact within the province of the jury, and for a court to substitute its verdict in any particular for that of the jury, violates the provision of the Constitution declaring the right of trial by jury inviolate. This would seem to be the correct view, for, as is said in the dissenting opinions, if the court may pare down the damages when it thinks they are excessive, why may it not increase the damages when it thinks they are too small, or why may it not change the verdict in any other respect it sees fit, and constitute itself judge of fact in place of the jury ? Constitutional Law — Interstate Commerce Act — Compulsory Self- Incrimination. — In a proceeding against certain carriers, based upon the Interstate Commerce Act, defendant refused to testify, on the ground that the evidence would tend to criminate him personally. An Act of Congress, passed February 11, 1893, pro- vides, in substance, that no person shall be excused from testifying in proceedings based upon the Interstate Commerce Act, on the ground that the same may tend to criminate him ; but that no person so testifying shall be prosecuted on account of any transaction concerning which he may testify. Held, that the protection afforded by this Act was not co-extensive with the immunity granted by the Fifth Amendment of the Constitu- tion, and hence defendants could not be forced to testify. United States v. Jumes, 60 Fed. Rep. 257. This case goes along step farther than Counselman v. Hitchcock, 142 U. S. 547, and holds that the Fifth Amendment not only protects a witness from the pains and penal- ties resulting from self incrimination, but also from the ignominy and disgrace, and that therefore no immunity granted by statute which compels a witness to criminate himself can be co-extensive with the immunity granted by the Constitution. This is a step that has never been taken before. A witness has never been protected from testi- fying because it would injure his reputation, and it could hardly be supposed that the Constitution meant to afford a witness any such novel immunity. Would it not be preferable, then, to look at the spirit rather than the letter of the Amendment, and so prevent an immunity from serving as a screen for lawbreakers? See 5 Harvard Law Review, 24. Constitutional Law — Police Power — Grain Elevators. — A statute of North Dakota declared all grain elevators in the State, operated for profit, to be public warehouses, prescribed maximum rates for storage, and provided that the grain should be kept insured at the expense of the warehouseman. The plaintiff in error owned and operated a grain elevator for the exclusive purpose of purchasing grain to fill con- tracts of sale, but incidentally as his business would permit stored grain for others. Wh le his elevator was only partly occupied he refused to receive the relator's wheat at the statutory charges because doing so would interfere with his own business, which he had a right to protect under Vrticle 1, sec. 8, and the Fourteenth Amendment of the U. S. Constitution. Held, all the provisions of the statute were within the legitimate sphere of the legislative power of the State. Brass y, SiaU of N, A, ex rel. Sioeser, 14 Sup. Ct. Rep. 857. 24