fee of the highway, and to constitute property within the meaning of the constitution. Story v. New York Elevated R. R. Co., 90 N. Y. 122; Adams v. Chicago, etc., R. R Co., 39 Minn. 286; Garrett v. Lake Roland, etc., Co., 79 Md. 277, contra. It is said to arise even though the highway is established after the grant of the abutting property, Barnett v. Johnson, 15 N. J. Eq. 481; and not to extend over private ways. Dexter v. Tree, 117 Ill. 532. While it is undoubtedly desirable in closely settled communities that abutters should have an easement of light and air over the highway, it is not entirely clear from what source the easement is to be traced. It has been suggested that it is an implied easement appurtenant to the land arising by virtue of an implied agreement that if the lot be purchased the owner shall be entitled to the open space above the street. The difficulty with this suggestion is that it in no way explains the acquisition of an easement when the establishment of the highway is subsequent to the grant of the abutting property, nor the limitation of the doctrine to land upon public, as distinguished from private highways. A consideration of the objects and incidents of the creation of public highways may place the matter in a clearer light than an attempt to argue from the analogy of easements over private land. A public highway is established to facilitate intercourse between the public at large and the abutting landowners, an object best effected by permitting the public to pass freely over the road, and by enabling the abutters to build to its edge. As the abutters require an easement of light and air if they build to the edge of the highway, such an easement would seem as essential to the general purposes of the highway as that of public travel. Both easements, therefore, should be regarded as natural incidents to the creation of the highway, arising simultaneously and by virtue of their relation to the objects of that creation. Cf. Adams v. Chicago, etc., R. R. Co., 39 Minn. 286. Such a view will at least support the desirable results that have been reached, without doing violence to well-settled principles of the law of property.

ANTICIPATORY BREACH OF CONTRACT AS EXCUSE FOR NON-PERFORMANCE. -The usual statement of the doctrine of anticipatory breach is to the effect, that when one party to an executory bilateral contract expresses an intention not to perform, the other party may treat the contract as broken and sue at once, or may ignore the repudiation, in which case the obligations upon each continue effective. Frost v. Knight, L. R. 7 Ex. 111. Illogical as it is to make a breach of contract depend on the promisee's election, considerations of convenience furnish perhaps a justification. At least so much of the doctrine of anticipatory breach as gives the right to sue immediately, is firmly established. Roehm v. Horst, 178 U. S. 1; 14 HARVARD LAW REVIEW, 433, note 4. But the alternative proposition, that the repudiation if not immediately acted upon is inoperative, has received almost no direct adjudication, although usually asserted as dictum where the right to sue immediately is recognized. In a recent case, however, the Supreme Court of Georgia treating the rule as established by these dicta decides that a repudiation by the plaintiff is no excuse for a subsequent non-performance by the defendant, when it is not shown that the defendant has elected to treat the contract as broken by the repudiation. Smith v. Ga. Loan, etc., Co., 39 S. E. Rep. 410. One other direct decision where the point was raised in a

slightly different way is in harmony. Dalrymple v. Scott, 19 Ont. App. 477.

A doctrine resulting in such decisions as these is objectionable. The principle of fairness, introduced under the terms of implied conditions, excusing one party from performance on the actual failure of the counter-performance, applies with equal force when it appears that there is going to be such failure. Ripley v. M'Clure, 4 Exch. 345; Lowe v. Harwood, 139 Mass. 133. There is also the well-recognized rule that forbids. a plaintiff increasing the damages by a useless performance after the defendant has expressed his intention not to carry out the contract. Clark v. Marsiglia, 1 Denio, 317; Chicago, etc., Co. v. Barry, 52 S. W. Rep. 451 (Tenn.). These considerations of fairness are not only in evident conflict with the doctrine of the principal case, but they are in accord with the commercial understanding. Where one party repudiates the contract, no course is more natural than for the other to remain passive, either hoping for a future fulfilment of the agreement, or looking for an opportunity to contract elsewhere. This passivity ought not to render the repudiation, if it still continues, inoperative as a defence. Such a course is also advantageous to the one who repudiates, as he may retract his repudiation, unless it has been acted upon. Nilson v. Morse, 52 Wis. 240. A further difficulty is that courts leave us quite in the dark as to what act, if any, other than immediately bringing suit, will be sufficient to render the repudiation operative. It would seem wise, therefore, not to extend the doctrine of anticipatory breach beyond its first proposition, the immediate right to sue. If the injured party elects not to sue at once, the ordinary rules of contract should govern, and the repudiation should be an excuse for his subsequent non-performance. It is therefore unfortunate that Lord Cockburn's suggestion of compelling the defendant to sue at once or to continue to perform should have been recently strengthened by an actual decision.

MENT.

VALIDITY OF SPECIAL ASSESSMENTS UNDER THE FOURTEENTH AMEND- It was thought by many that a deathblow had been dealt to the "front foot rule" by the Supreme Court in the important case of Norwood v. Baker, 172 U. S. 269. The court asserted that the exaction of an assessment in substantial excess of the special benefits was, to the extent of such excess, a taking of property without compensation, and was supposed to have decided in consequence, that a rule of apportionment which does not provide for an inquiry into special benefits is in violation of the Fourteenth Amendment. This interpretation of the decision is vigorously maintained by Mr. Justice Harlan in the dissenting opinion of a subsequent case. The majority of the court, however, while professing not to overrule Norwood v. Baker, seem to justify it on its peculiar facts, and in upholding the validity of the "front foot rule" to repudiate its supposed doctrine. French v. Barber, etc., Co., 181 U. S. 324. A recent case is interesting as recognizing that this modification leaves little of the doctrine. Zehnder v. Barber, etc., Co., 108 Fed. Rep. 570 (Cir. Ct. Ky.). In this case, a temporary injunction, which had been granted on the authority of Norwood v. Baker, was dissolved in conformity with French v. Barber, etc., Co.

An historic clause like the Fourteenth Amendment should be con

strued in the light of the law existing at the time of its adoption. Murray's Lessee v. Hoboken, etc., Co., 18 How. 272; Mattox v. U. S. 156 U. S. 237. Construed thus, "due process of law" seems to mean the same as "the law of the land" in Magna Charta, and to have no reference to taxation. It was intended to secure ancient guaranties, not to establish new ones. The safeguard against unjust taxation was supposed to be the representative system. It is probably true as a matter of the theory of taxation that the basis of special assessments is special benefit. 2 Dillon, Mun. Cor., 4 ed., § 761. But the taxing power is a legislative power, and belongs to the state legislatures except as to objects forbidden by the Constitution. Included in the taxing power is the power of apportionment. It is for the legislature to weigh the benefits and burdens and the other considerations which enter into any plan of apportionment. People v. Brooklyn, 4 N. Y. 419. Consequently, so long as there is what can be called a real exercise of the taxing power the Fourteenth Amendment is not violated. It is only where it is a mere pretence and subterfuge that there can be said to be any ground for the interference of the Supreme Court. The Fourteenth Amendment has no applicability to the expediency or justice of the tax, nor to the question of its equality. Kelly v. Pittsburgh, 104 U. S. 78. Equality is sometimes a requisite under state constitutions, but the United States Constitution has no such requirement in regard to state taxation, and cases dealing with this phase of the question are to be carefully distinguished. See Chicago v. Larned, 34 Ill. 203. It is to be noticed also that, unless some adequate distinction be drawn between special assessments and general ad valorem taxation, the latter would seem to be covered by the proposition in Norwood v. Baker, supra, which obviously could not have been intended. If by "special assessment" be meant a tax on less than a political subdivision, the states by exercising their undoubted power of changing their political subdivisions could convert a special assessment into a general tax. 14 HARVARD Law Review, 1, 98. The court in Norwood v. Baker seems to have proceeded upon a too narrow view of the Constitution. The decision in French v. Barber, etc., Co., supra, approved in the principal case is not only sounder in principle, but seems to be supported by the current of decision in the Supreme Court prior to Norwood v. Baker. Davidson v. New Orleans, 96 U. S. 97; Spencer v. Merchant, 125 U. S. 345; Walston v. Nevin, 128 U. S. 578. Moreover the result seems eminently desirable in view of the prevalence and long standing of the "front foot rule," and further agitation of the question can only result in confusion and practical difficulties.

THE ADMISSIBILITY OF TESTIMONY GIVEN BEFORE A GRAND JURY.. A witness makes self-criminating statements before a grand jury, although warned of his privilege. Subsequently he is accused and brought to trial. The question whether or not his previous testimony can be admitted is raised in a recent Texas case, the court holding such testimony admissible. Wisdom v. State, 61 S. W. Rep. 926 (Tex. Cr. App.). The decision is based entirely upon the ground that a grand juror is competent to testify to such statements, since he does not thereby violate the secrets of the jury room. This proposition, though apparently well settled, is not conclusive on the question in issue. Commonwealth v. Mead, 12 Gray, 167.

Two objections not always carefully distinguished are urged against the admissibility of such evidence. The first is that a confession before the grand jury is inadmissible because involuntary. People v. McMahon, 15 N. Y. 384. Generally, however, testimony of this kind involves an admission, not a confession; for the latter requires an acknowledgment of guilt. I Greenl. Ev. § 170. As an admission is not excluded because involuntary, the objection therefore is seldom in fact applicable. State v. Broughton, 7 Ired. 96. Nevertheless, many cases consider the testimony as an involuntary confession. According to the best authority a confession is excluded as involuntary only when it is obtained by promises or threats in regard to the case itself made by one in authority. Joy Confessions, § 1; Hopt v. Utah, 110 U. S. 574, 585. A statement under oath before the grand jury, even if a confession, is not as a rule involuntary, because it is seldom induced by such promises or threats. Commonwealth v. King, 8 Gray 501. Consequently in general, the objection that the testimony is inadmissible as an involuntary confession fails. The second objection is that the accused in violation of his constitutional privilege is obliged to furnish evidence against himself; for when he is before the grand jury he must either testify, or, by exercising his privilege not to criminate himself, furnish an admission by conduct. But according to the weight of authority the prosecution should not be allowed to prove a reliance on privilege, for otherwise the privilege is partially defeated. National, etc., Bank v. Lawrence, 77 Minn. 282. Even in jurisdictions where the exercise of the privilege can be shown, it would seem that this constitutional right is not violated by admitting the testimony given before the grand jury. For, although the accused is placed where he cannot escape the drawing of an inference from his silence, nevertheless the constitutional provision by its terms seems to apply only to direct testimony, and the accused is not forced to give direct testimony incriminating himself. Cf. State v. Bartlett, 55 Me.

200, 216.

It seems then as if legally such testimony should be received. Joy Confessions, VIII. Its exclusion may however be supported as a rule of policy, on grounds of merciful administration. The prosecutor should not be allowed to put a man, not at the time accused, on the rack, and use at the trial what he has extorted. A reasonable rule would be to exclude testimony given before the grand jury unless the witness spoke voluntarily with the understanding that if he chose to remain silent, that fact should not be subsequently brought against him. Such a rule it seems would effect a desirable result, often reached by the courts however on erroneous grounds.

TELEPHONE AND TELEGRAPH COMPANIES AS COMMON CARRIERS. Whatever may be the scientific distinction between the telephone and telegraph as inventions, it is well settled that the legal status of companies organized for the purpose of transmitting intelligence by their means is the same. Attorney-General v. Edison Telephone Co., 6 Q. B. Div. 244. Both may take by eminent domain under proper legislative sanction. Turnpike Co. v. News Co., 43 N. J. L. 381; York Telephone Co. v. Keesey, 5 Pa. Dist. Rep. 366. Both may make reasonable rules and stipulations for the conduct of their business. Western Union Tele

graph Co. v. Van Cleave, 54 S. W. 827 (Ky.); Pugh v. City, etc., Telephone Co., 9 Cincinnati Weekly Bul. 104. Both are subject to legislative control as to rates and regulations. State v. Western Union Telegraph Co., 113 N. C. 213; Hockett v. State, 105 Ind. 250. In a recent South Carolina decision it is said that telephone companies are under a duty at common law to furnish facilities to the public without discrimination, and this obligation is placed upon the ground that they are in one sense of the term common carriers. State v. Citizens' Telephone Co., 39 S. E. Rep. 257. The tendency to rest the legal status of telegraph and telephone companies upon the similarity of their undertaking to that of the common carrier is unfortunate as ignoring broad principles of law that determine the rights and duties of both callings. The common carrier is only one of a class of public servants endowed by the common law with special privileges and subject to special obligations by reason of the public interest in the proper conduct of the business undertaken. This class anciently included innkeepers, smiths, farriers, tailors, carriers, and others. See 11 HARVARD LAW REVIEW, 163. With the progress of civilization and the development of new countries the number of public employments increased. It was the province of the courts to determine what was a public occupation, and the decisions naturally varied with the conditions and interests of the localities in which they were rendered. Lake Koen Navigation, etc., Co. v. Klein, 65 Pac. Rep. 684 (Kan.). Among the undertakings that have been held to be public in this country may be mentioned the supplying of water, gas, electricity, and news, and the operating of grain-elevators, grist-mills, telegraphs, and telephones. It is characteristic of persons or corporations engaged in a public occupation that they may take by eminent domain; that they are subject to the control of the legislature in many ways unknown to ordinary business corporations; and that they must serve the public at reasonable rates and without unfair discrimination. Olmsted v. Proprietors of the Morris Aqueduct, 47 N. J. L. 311. The common carrier in addition to the general privileges and obligations of public servants is under an absolute liability, except for the act of God or public enemy, for the safe deliv ery of goods intrusted. Chevallier v. Straham, 2 Tex. 115. It has been pointed out that this so-called insurer's liability of the common carrier is peculiar to him, and is to be traced to an accidental development of the common law rather than to the nature of his occupation. II HARVARD LAW Review, 158-168. While the carrying of messages by electricity bears a striking similarity to the undertaking of the common carrier, it lacks one feature without which the insurer's liability of the latter would never have arisen, namely, a bailment of the thing to be conveyed. It is accordingly well settled that telegraph companies are not under the insurer's liability of common carriers. Grinnell v. Western Union Telegraph Co., 113 Mass. 299. It seems preferable therefore to rest the status of telegraph and telephone companies upon the public nature of their occupations rather than upon the theory that they are common carriers, a theory not borne out by the decisions and based upon an analogy in one respect at least defective.

THE TAFF VALE RAILWAY CASE. - A recent decision of the House of Lords immediately involving the legal status of English trade unions