NOTES OF RECENT CASES made only presumptively fraudulent, and not absolutely void. E. F. This decision is important, as the latest judicial pronouncement upon a novel species of legislation which has swept over the country during the last five years. Statutes designed to accomplish the same end and similar in form and provisions have been adopted during that period in twenty-one states and in the District of Columbia. (Illinois should be added to the list given in the principal opinion. Laws of Illinois, 1905, page 284.) Some of these statutes differ in one important respect from the original Hew York statute, in that they provide that sales in violation of their require ments shall be only presumed to be fraudulent, whereas the New York and some other statutes make sales in violation thereof absolutely fraudu lent and void. Since the action in the present case was instituted, the New York statute has been amended so as to correspond in that particular with the first-mentioned class of statutes on this subject. (Laws of New York, 1904, ch. 569, p. 1385.) The New York Court of Appeals held the statute, in its original form, invalid by a vote of four to three, and the vigorous dissenting opinion is well worth reading. Eight of these statutes have been passed upon by courts of last resort, with varying results, as to their constitutionality as shown in the opinion in the principal case. The Massachusetts statute, almost identical with the original New York statute was declared constitutional in Squire & Co. v. Tellier, 185 Mass. 18; while the Utah act also very similar to the New York statute except that it made a violation of its terms a crime was held invalid, Block v. Schwartz, 27 Utah 387. All of the other statutes thus far declared con stitutional provide that sales not complying there with shall be only presumptively fraudulent and void, though the Tennessee court apparently gives no attention to that term in the act, which it upholds in Neas v. Borches, 109 Tenn. 398. The Wis consin court on the other hand places great empha sis upon that clause in the Wisconsin statute. Fisher v. Herrmann, 118 Wis. 424. Professional opinion is likely to divide more or less evenly as to the validity of statutes in the form of the original New York act. On the one hand it seems clear that these statutes, passed as they undoubtedly •were, largely through the influence of trade and mercantile associations to " protect a particular class in the community," do place restrictions upon freedom of contract and the right of property. But, on the other hand one calls readily to mind many statutory restrictions upon that freedom and that right, which courts of last resort have expressly held to be not violative of any constitutional pro
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visions, e.g., " fixing the price of elevating grain" (Munn v. Illinois, 94 U. S. 113), the prohibitions of options (Booth v. Illinois, 184 U. S. 425), and the numerous statutes making chattel mortgages and "conditional sales " void, unless recorded. But it seems reasonably clear that those statutes which make sales in violation of their terms, only pre sumptively fraudulent and void, are safer without being materially less effective than the first New York statute above referred to. Henry M. Bates. CONSTITUTIONAL LAW. (Trade-marks — Use of Arms or Seal of Commonwealth.) Mass. — In Commonwealth v. R. I. Sherman Manufactur ing Co., 75 Northeastern Reporter, 7 1, the statute of Massachusetts declaring that no person or pri vate corporation shall use the arms or the great seal of the Commonwealth for advertising or com mercial purposes, is held constitutional. It is also maintained that the statute is not in conflict with the provision of the Federal Constitution invest ing Congress with power to regulate commerce among the states. It is held that the statute does not apply to articles manufactured before the passage of the act, but that in a prosecution for violation of the statute the fact that when it went into effect the defendant had contracts for the manufacture, sale, and delivery of goods bearing the prohibited device as a trade-mark, was no defense. The act sustained by this decision avoided one of the objections which the Supreme Court of Illinois, in Ruhstral v. People, 185 Ill. 133, held fatal to a somewhat similar statute of that state, by not attempting to control the use of the national symbol, but confining itself to the arms and great seal of the Commonwealth; it also avoided the interference with vested rights of property, which caused the New York statute to be declared uncon stitutional (People v. Van De Carr, 178 N. Y. 425), by postponing the date of taking effect, one year from the date of the passage of the act. The decision reiterates the principle previously estab lished, that a valid police regulation may supersede existing contracts for the doing of the acts which it forbids. E. F. CONSTITUTIONAL LAW. (Waters —. Com merce — Contracts.) N. J. Ch. — An interesting holding as to the right of a State to retain within its boundaries the waters of its streams is con tained in McCarter v. Hudson County Water Com pany. 6 1 Atlantic Reporter, 710. It is maintained in this case that the State, as the lower riparian owner on tidal streams by virtue of its owner
