Page:Harvard Law Review Volume 8.djvu/243

NOTES. 227 the structure of society and the conditions of life in general, it seems per- fectly clear that the State has complete authority to regulate the trans- mission of property after the owner's death. The only grain of truth in the proposition that inheritance is a " necessary incident " of property or, as is sometime said, " a common law incident," seems to be this. It is necessary to the idea of private property that there be a succession of some kind on the death of the owner. Who shall succeed is quite a dif- ferent question, and has been answered differently at different times and places. Private succession we have had for centuries, but it is no more a consequence of the conception of property than is transferability ittter vivos. It is hardly necessary to say that property is here used in the sense of general property, applying therefore only to the fee of land and the gen- eral dominium of chattels. It is no argument in favor of the proposition we have been supporting to cite the case of the occupant of an estate //^r autre vie .1 8 H. L. R. 167 (Nov., 1894). The case of Minot v. Winthrop is further interesting from the fact that it introduces into Massachusetts a new commodity. In order to uphold the statute it is necessary to bring the right of succession under the head of "commodities" in the Constitution. This the Supreme Court does, though not without flinching. It has been held that a corporate franchise is a commodity. It is difficult to see, then, why the exercise of any private right is not one also. Having once departed from the economic concep- tion of commodity, the court has only to be consistent with itself. In Glea- son V. McKay, 134 Mass. 419, it was held that a partnership with shares transferable without the special assent of the members was not a com- modity. It is difficult to distinguish that case from this, and Lathrop J., in his dissenting opinion, finds it impossible to do so. The majority of the court, however, think that Gleason v. McKay really decided nothing more than that it was unconstitutional to impose a tax on that particular kind of partnership alone, such a restriction being unreasonable. If the case decided no more than that, the court at the time certainly thought it was going further. Nothing is said about the reasonableness of the tax in the report of Gleason v. McKay. A similar interesting case in another State is State of Maine v. Hamlin, 30 Atl. R. 76. Strike Injunctions. — The reports recently printed of the cases en- suing upon the injunctions issued against the strike leaders of last July afford an opportunity of considering the legal side of the trouble, — a side not frequently discussed. There are, first, a few cases which have endeavored to compel specific performance of their contracts on the part of the striking employees, S. California R. R. v. Rutherford, 62 Fed. Rep. 796, compelling the hauling of Pullman cars as long as the employees worked for the company at all, and a case of last December which enjoined employees from quitting work on a road in the hands of the court's receiver, Farmer's L. &* T. Co. v. N. P. R. R. Co., 60 Fed. Rep. 803 ; but the latter case has been overruled in the Circuit Court (Chicago Law Journal, Vol. V. n. s. p. 461). It must be allowed as settled that these cases are wrong, and there has been little or no attempt to infringe upon the rule that no specific performance can be compelled in a contract for personal service, however great the value of the service may be. This is admitted in all the other cases which have been decided, and though it is 31