fact, the keeping the animal is not the proximate cause of the injury, and it is not for that that the owner is held liable.

With more show of success the author takes occasion to oppose Mr. Salmond's attempt to include the owner's liability for the wrongful entry of his cattle upon land under the general principles governing the liability for damage caused by domestic animals. He points out that the owner is not liable for injurious acts of domestic animals flowing from their natural propensities, although such acts may have a tendency to cause damage. Thus the owner of a cat is not liable for its attack upon a dog, in spite of the well-known hostility between the two animals. (Clinton v. Lyons & Co., [1912] 3 K. B. 198). It is only for the injurious acts of domestic animals flowing from an unnatural propensity of which he has scienter that the owner is liable. Hence the liability for trespass by cattle must rest upon the peculiar principles of the law of trespass, rather than any general principle of liability for the acts of domestic animals.

The book also contains an interesting, though not very clarifying, discussion of the confusion in the cases with regard to the evidence necessary to prove scienter.

The book suffers most from unnecessary repetition and verbosity, a defect which is only partly remedied by the use of different forms of type to set off the general principles of the law from the detailed discussion of the authorities. CHESTER A. MCLAIN.

THE PREVENTION AND CONTROL OF MONOPOLIES. By W. Jethro Brown. New York: E. P. Dutton and Company. 1915. pp. xix, 198.

Published just as our Federal Trade Commission is beginning its task of supervising the business practices of industry in the United States, this book has unusual interest for Americans. It is an examination, by a jurist who combines theoretical insight and originality with practical experience, of the workings of Australian legislative and administrative regulation of industry. Competition Dr. Brown conceives to be both a desirable and an enduring element in modern industry. The problem is by regulation and administration to moralize competition. The Preservation of Australian Industries Act, designed to accomplish this end, is based in part on our Sherman Law. But it shows a more practical realization of the concrete ends aimed at. It prohibits any contract or combination in restraint of trade, or injurious to Australian industry, by means of unfair competition; and it is specifically made a defense that there was no detriment to the public, or that the restraint was reasonable. Unfair competition is not left undefined, as in our Clayton Act; competition is unfair if the participant is a commercial trust, if the competition results in inadequate wages, disorganizes industry, or creates unemployment, or is conducted by means of rebates. Refusal to supply services or sell goods to a person on the ground that he deals with a third person, or refuses to join a combine, is made illegal.

Administration of the law, the author believes, is seriously hampered by the conflict of state and federal control, and a more accurate delimitation of the legal boundaries is called for. The prohibitions of the act, also, he believes, could with advantage be made more specific. Above all he emphasizes the need of taking the enforcement of the act out of the hands of the Attorney General, and placing it in the hands of an administrative commission beyond the suspicion of partisanship. The creation of the Inter-State Commission in 1912 has only in part filled this need, for it has been so heavily burdened with duties unconnected with the control of monopolies and the regulation of

competition, that it has not been able to devote to the enforcement of the act the attention which it deserves.

Where competition cannot be procured, or where it is not socially desirable, Dr. Brown's program is twofold: nationalization and regulation. In certain industries he believes nationalization to be primâ facie desirable: as in transportation, in industries immediately affecting health, such as the milk supply, in industries threatening the depletion of natural rescources, and in other industries which for various reasons cannot be successfully regulated. For other "natural monopolies" price regulation is advocated. The discussion of the difficulties of such a program is critical and impartial. Drawing from both American and Australian experience, and using as illustrative material the findings of the Royal Commission on the Australian Sugar Industry in 1911, of which he was chairman, the author concludes that price regulation is practically feasible, and that proper administrative machinery can obviate most of its difficulties and disadvantages. He suggests that the Inter-State Commission be given power to declare the scale of prices of any trust or combine unreasonable, to compel a revision of prices, and if necessary itself to fix maximum and minimum prices.

The discussion of American experience is based entirely on secondary authority, much of it of not very recent date. The American reader will regret that the original scources of information on this subject were not available to the author. There is, for instance, no reference to the important congressional investigations of the steel trust, the "money trust," and the shipping combinations. American experience with the regulation of railroad rates is summed up in a brief quotation from Van Hise, "Concentration and Control," which deals with the subject only incidentally, while the standard book in this field, Ripley's "Railroads: Rates and Regulations," is not referred to. These are slight blemishes, however, in a book which is otherwise thorough, scholarly, and readable. G. C. HENDERSON.

PROBLEMS IN THE LAW OF CONTRACTS. By Henry Winthrop Ballantine. Rochester: The Lawyers' Co-operative Publishing Company. 1915. pp. 1, 363.

THE MONROE DOCTRINE. By Albert Bushnell Hart. Boston: Little, Brown, and Company. 1916. pp. xiv, 445.

AN INTRODUCTION TO ROMAN-DUTCH LAW. By R. W. Lee. Oxford, England: Clarendon Press. 1915. pp. xxxv, 360.

The Law of UNINCORPORATED ASSOCIATIONS. By Sydney R. Wrightington. Boston: Little, Brown, and Company. 1916. pp. xxvi, 486.

HARVARD

LAW REVIEW

VOL. XXIX

MARCH, 1916

No. 5

UNITED STATES v. HVOSLEF: A CONSTITUTIONAL SOURCE OF NATIONAL REVENUE IMPAIRED.

A

LTHOUGH the case of United States v. Hvoslef,1 decided in March, 1915, seems to have attracted but little attention, it adds, it is believed, a serious curtailment to the power of Congress to raise revenue, and at a time when every financial resource of the government is needed for purposes of national defense. It seems desirable, therefore, to examine the grounds of this decision in the light of former opinions of the Supreme Court for the purpose of considering whether the conclusions of the Court must be accepted as a final determination of the constitutional questions involved.

I

In discussing any question involving the construction of a clause of the Constitution of the United States, it is helpful to have definitely stated the writer's view concerning the nature and character of the Constitution itself, and the extent to which the decisions of the United States Supreme Court must be considered as finally determining the meaning of that instrument; not final merely so far as coördinate branches of the government are concerned, but as to how far they are to be considered as binding the future action of the Court itself.

1 237 U. S. 1.

It seems obvious to the writer that the one view of the Constitution giving security and permanency, and sustained by reason and authority, is that it is an unchanging instrument of government, amendable only in the manner provided by its terms, and that except as so amended it remains precisely the same in meaning as when first ratified.2 If the view were accepted that the meaning may be modified by decisions of the courts, then there would be no constitutional guarantee of personal liberty or of the security of property, and few means of national defense which might not be glossed out of existence or greatly weakened by judicial interpretation. There seems to be no sure anchorage except in a firm adherence to the principle that while judicial, governmental, and public opinion in regard to its meaning may change, the Constitution itself does not change, and that in case of erroneous interpretation the way is always open to a return to the true construction whenever further consideration and additional light make such error clear. The Supreme Court itself, by adhering in practice to its right at all times to reëxamine the terms of the instrument for the purpose of determining its meaning, and to subject every decision upon a constitutional question to the acid test of reason, has fixed the enduring character of the Constitution, and added immensely to its own strength and dignity by making itself the living voice through which that document speaks. The wisdom of the position taken by the Court is apparent when it is remembered that even in passing upon constitutional questions, the court must depend to some extent upon the industry and research of counsel before it, that points of controlling importance may, at times, escape the attention of the most diligent, and that while a question of constitutional construction may appear of relatively

2 The impression, so generally current, that the Constitution does change, at least by growth, results, it is believed, from the fact that with the development of new conditions, new and often theretofore unthought of means are discovered which are "necessary and proper for carrying into execution" the powers of the National Government, but which, had they been enacted into law at a former time, might either have then had no such relation to any delegated power of the Government as to make them necessary and proper means for executing it, or a relation which would not, at that time, have been apparent. In other words, it is plain that it is we, our knowledge, and our circumstances, that change, and not the Constitution. Here it may be suggested that it may well be, as the writer believes, that the scope of the powers specifically granted by the Constitution has never been more than partially canvassed or explored.

slight importance at the time it is originally presented, it may thereafter become of the greatest moment.

It is with these considerations in mind that the writer desires to analyze the case of United States v. Hvoslef, and discuss it in the light of previous decisions of the Court. ́

II

In this case, the District Court had allowed defendant in error judgment upon a claim for amounts paid as stamp taxes upon certain charter parties under section 25 of the War Revenue Act of June 13, 1898, c. 448, 30 Stat. 448, 460. These charter parties were exclusively for the carriage of cargoes from ports in States of the United States to foreign ports, and the imposition of the taxes was held by the District Court to be in violation of section 9, article 1, of the Constitution of the United States, which provides that, "No tax or duty shall be laid on Articles exported from any State." Mr. Justice Hughes, in delivering the opinion of the Court which sustained the action of the District Court, said, in substance, that the constitutional freedom of exportation involved more than a mere exemption from taxes or duties laid specifically upon the goods themselves, that a tax on these charter parties was, in substance, a tax on exportation, and a tax on the exportation was a tax on the exports. Mr. Solicitor General Davis and Mr Megaarden, for the United States, had contended that as the tax extended to all charter parties irrespective of whether the vessels were to be used in the export trade or not, it affected exportation only incidentally, and therefore the case was to be distinguished from one where burdens were specifically laid on any of the processes or incidents of exportation as such. The Court held this to be immaterial, saying that "the tax as applied to the charter parties here in question was nothing else than a tax on exportation and to this extent was, in any event, invalid," (quoting from Robbins v.

3 3 Id., p. 18. It may be remarked here that the position of counsel for the Government seems obviously sound. There is, in any view of the matter, a very clear distinction between a tax upon instruments of a given class, predicated upon the fact that they are to be used in connection with exportation, and a tax levied upon a given instrument, irrespective of whether it is used in connection with exportation or not. The distinction is referred to in the Fairbank case, infra, where the majority of the court, speaking through Mr. Justice Brewer, said, p. 290: "It must be noticed that by this act of