ment. Some strong articles have appeared in the law periodicals, written by distin guished lawyers, holding that the initiative was certainly contrary to the United States Constitution, the argument being chiefly based upon the idea that the term "Republi can form of government" meant that particu lar form of government existing in the vari ous States at the time the constitution went into effect. It has been said that the idea of a representative form of government was distinct from that of a pure democracy in that, whereas the representatives of the peo ple made and administered the law in the former case, in the latter case it was done by the people direct, and that our forefathers had this distinction expressly in mind. The question has just been decided by the Su preme Court of Oregon, in Kadderly v. City of Portland, 74 Pacific Rep. 710, in which the court upholds in every particular the amend ment to the State constitution, adopting the initiative and referendum for the State of Oregon. IN an article entitled "The Government's Liability for the Use of Patented Inven tions" in the American Law Register for Janu ary, Charles C. Binney points out the hard lot, under certain circumstances, of the pat entee whose invention has been used by the government. Although "the abstract right of the holder of letters patent from the United States, whether as original inventor or as assignee, to receive compensation for the use of the patented invention by the gov ernment itself, is thoroughly established, yet the law is far from satisfactory in regard to practical enforcement of that right. The right of suit is clear when an express or im plied contract by the government can be shown; such contract can be enforced in the Court of Claims. But "no contract can be implied from the mere use of a patented de vice by government officers through ignor ance, carlessness, or mistake, or without proper authority. So, too, where the govern ment uses a mechanical device of any kind as the invention of a certain person, and un der a contract with him, no contract can be
implied with a third party who asserts that the device used is really covered by his pat ent. Such a claim, if valid at all, is for an in fringement and is not within the jurisdiction of the Court of Claims." "Infringement is a tort, and the United States, it is held, cannot be guilty of a tort, and hence cannot be liable on any such ground." After reviewing the more important cases in which the government's liability has been passed on by the courts, Mr. Binney sums up his subject in the following words: It is perfectly evident that neither the statutes which govern the Court of Claims, nor the rules as to appeals from that court, have been drawn with any reference to the peculiar nature of suits on patents. As the issues in regard to the scope and validity of the patent are precisely the same where the government is charged with having used a patented device under an implied contract, as in an ordinary infringement suit, there is no reason whatever for excluding any evi dence from the consideration of the Appel late Court in the former class of cases, which would not be excluded in the latter class. There can hardly be a doubt that the ex clusion of all expert testimony was due to a mere accident, the fact that when the rules were drawn the jurisdiction of the Court of Claims in patent cases was not taken into ac count. It is to be hoped that the rule will some day be amended, especially in view of the evident tendency to construe the scope of that jurisdiction rather broadly, and of the probable increase in the number of such patent suits. Certainly the parties to a suit in the Court of Claims are entitled to as full a consideration of every feature of their case in the Appellate Court as are the parties to any other judicial proceeding. As to the statutes regulating the jurisdiction of the Court of Claims, if they cannot be legitimately construed so as to give a pat entee the same rights in the case of an in fringement by the government that he would have as against a private infringer, then the spectacle is presented of a constitutional right, the existence of which the Supreme Court has repeatedly recognized, but which
