32
The Green Bag
neering, or cruel Judiciary. On the contrary, the powers of our State Nisi Prius Courts have been gradually clipped away until our ordinary Circuit or District Judge has become hardly more than a monitor or moderator, to keep some semblance of order during a trial. This is espe cially true in our Western states — and Middle Western states — in many of which the trial Judge gives no oral instructions to the jury, and is obliged to refrain from commenting upon the testimony, and must give his written instructions to the jury upon the law alone, not weighing the evidence, and must do so before the final argu ment of counsel to the jury, the Court's written instructions being read to the jury by counsel, and not by the Court. A restoration of the ancient Common Law powers of the Judiciary should be given Nisi Prius Judges." See Criminal Procedure. Professional Ethics. "The Duties of Attor ney." By Hon. Edwin Baker Gager, M. A. 21 Yale Law Journal 72 (Nov.). "The longer I live the more clearly I see and the more strongly I realize that the reason why so many fail to reach a high standing in the pro fession is that in the earlier years of their practice they did not adequately realize that the law is and always will be a learned profession, involv ing a lifetime of labor as the condition of its highest rewards. The man who knows is the man sought for by those desiring assistance in any profession; and it is as true of the lawyer as of the engineer, the surgeon, or the specialist in any line; and this knowledge, to be effective, must be your own knowledge." Property. See Succession. Public Service Corporations. "The Origin of the Peculiar Duties of Public Service Com panies, II, III." By Charles K. Burdick. 11 Columbia Law Review 616 (Nov.), 743 (Dec.). For the first instalment of this important monograph, see 23 Green Bag 427-428. "It seems to me that this discussion has made it clear that the common law does not impose public service duties upon businesses simply because they are of importance to the public and are enjoying a virtual monopoly. The only legitimate method of controlling the service and charges of such business is by legislative regu lation. Any attempt by the courts to impose public service duties upon such businesses, inde pendent of statutory regulation, constitutes judicial legislation, or, in other words, a usurpa tion of the functions of an entirely separate branch of the government. I frankly admit that there are dicta in support of such judicial action, and that there are one or two decisions which are based on the assertion that the right to so act inheres in the courts of common law. However, I believe I have shown that both the reasoning and authorities by which the courts have sought to support such decisions and such dicta (in the rare instances where the latter are more than unargued suggestions) are most un satisfactory, and that the cases which take an opposing 'position are at once more numerous and present a sounder exposition of the law."
Railway Rates. "The Legal Basis of Rate Regulation — Fair Return on the Value Em ployed for the Public Service, II." By Edward C. Bailly. 11 Columbia Law Review 639 (Nov.). Continuation of article noticed in 23 Green Bag 429. "What is a fair net return on present value is really a question of fact which must be deter mined by the circumstances of each particular case. Briefly, the market or current rate upon equally hazardous investments is determinative, for, while rates cannot legally be reduced to a point where they become confiscatory, the security of the investment is not guaranteed by the public. Rates which should yield a fair return may cease to do so because of competition or other forces, but they are not thereby rendered confiscatory. It is under such circumstances that value of the service becomes an important consideration." "The Interstate Commerce Commission." By James W. Crook. North American Review, v. 194, p. 858 (Dec.). A review of the legislation under which the Commission performs its functions and descrip tion of some of its powers as defined by statute and judicial decision. Real Property. See Torrens System. Succession. "Meaning of the Word 'Issue' in Gifts to 'Issue.' " By Prof. Albert M. Kales. "Meaning of the Word 'Issue' in Gifts to 'Issue' — Another View." By Willard Brooks of the Chicago bar. 6 Illinois Law Review 217, 230 (Nov.). Professor Kales favors a rule of construction which would divide gifts to "issue" per capita rather than per stirpes. Mr. Brooks thinks that a testator using the phrase "to the issue of A" probably has in his mind something more than "children"; "it is rather some more extensive group which the testator regards as the equiva lent of the 'stock' or stirps of the ancestor." "The Doctrine of Survivorship and the Defi nition of a Vested Remainder." By Henry W. Webber. 10 Michigan Law Review 26 (Nov.). "The real reason for the early English rule [which was the same as that in the leading case of Moore v. Lyons, 25 Wend. 118] seems to have been mooted, because not always apparent from the decisions. It will be found, however, upon a study of the authorities, that the desire to avoid disinheritance of descendants and posterity is the underlying principle running through all the cases." See Perpetuities. Survivorship. See Succession. Torrens System. "The Land Transfer Re port." By Eustace J. Harvey. 27 Law Quarterly Review 111 (Oct.). "The state of mind underlying this Report is one of great distrust of the registering body. The Commissioners propose to take out of the
