executive the working out of the details of the indeterminate sentence. In other words, the judiciary is still to consider only the crime; the legislative and executive, the criminal.

The reasons for this roundabout process of introducing a simple idea into our law the adaptation of penalties to criminals are not, then, connected with any preconceived notion of the separation of powers under the Constitution. They rather fly in the face of the alleged principle of the separation of powers, at least if the analysis offered by Saleilles is correct. The real difficulties in the way of this reform are to be found in the political fact of the jealousy on the part of legislatures of judicial power, and the practical limitations of our traditional system of evidence, which precludes from the tribunal (whether judge or jury) the possibility of investigating the criminal by limiting it solely to the investigation of the alleged crime in any particular case. Finally, the ill repute that a series of accidents and incidents attached to the Star Chamber, though it was the "twin sister of Chancery," has prevented the development of criminal equity in the Anglo-American system. For the present we must be satisfied with the rough individualization of the statute book, supplemented by the more or less arbitrary interference of the executive, together with the surreptitious individualization that has long been carried on by the jury, and the leeway between maximum and minimum sentences left to the court.

The question is therefore of some importance: how far can a legislature go in classifying criminals in spite of the Fourteenth Amendment, which provides for equal protection of the laws? It certainly smacks of mechanical jurisprudence to suggest that the woman in this case was deprived of this "equal protection" by being sent to an industrial farm instead of a penitentiary, but such was the main contention of the defendant. To justify the alleged "discrimination" the court might have cited decisions to the effect that discriminations in favor of women in the matter of conditions of employment are not class legislation. But the court preferred to rest its decision frankly on a social interest in the treatment accorded women criminals. To this extent it takes a wholesome "realistic" view of constitutional law. It relies more on the statute passed by the seventeen states, and the results achieved in some of these as set forth in the survey referred to above, than on any so-called legal argument.

It is not remarkable that separate treatment for women in the criminal law should follow on the establishment of separate courts for children. True, the way was paved for the Juvenile Court by the notion that children were somehow wards of the Chancellor." But ancient and medieval law had also made some distinctions in favor of women. Ecclesiastical law was quite ready to open the convent to the erring woman. Even

Cf. 24 HARV. L. REV. 236.

Muller v. Oregon, 208 U. S. 412 (1908); Quong Wong v. Kirkendall, 223 U. S. 59; Wenham v. State, 65 Neb. 394, 91 N. W. 421 (1902).

As the word is used by Professor Frankfurter in 29 HARV. L. REV. 353.

7 Cf. Dean Pound's Introduction to the English translation of Saleilles, p. xii; see Julian W. Mack, "The Juvenile Court," 23 HARV. L. REV. 104.

See SALEILLES, p. 201; cf. AMUNÁTEGIN, Los PRECARSORES DE LA INDEPENDENCIA DE CHILE, I, 164.

the common law distinguishes between the feminine crime of being a common scold and its masculine counterpart of being a common railer and brawler. Perhaps the motive for the distinction was not so consciously a social interest, but it is hard to believe that the principle involved was not dimly perceived. In the case before us the judge quotes Genesis: "Male and female created He them." Then he adds, "It required no anatomist or physiologist or psychologist or psychiatrist to tell the legislature that women are different from men."

ACTIONABLE INJURIES IN STREET Regulation. The right of a state to appropriate private property for the construction of roads and streets is an aspect of the general right of eminent domain. It seems probable that there is a common-law obligation to compensate the private owner;1 but whether this obligation exists or not is perhaps an academic question, since its enforcement is generally subject to constitutional limitation or statutory regulation.

3

5

In England, since 1845, compensation has been allowed by act of Parliament for property "injuriously affected" by the construction of public works. In the United States, the limitation imposed by the Fifth Amendment applies only to the federal government; but the exercise of the power by the states has been limited by nearly all of the state constitutions, the typical provision being to the effect that private property may not be taken for public use without just compensation. The right of a private owner to recover for injuries sustained through street regulation under such a constitutional provision depends upon the construction of the words "property," "taken," and "just compensation." If there has been a physical occupation of property, or a divesting of title, the provision is clearly applicable. And where part only of a tract is taken, compensation must include not merely the value of that part, but also the damage to the remainder caused by the taking, and by the use for the purpose proposed." So, where the grade of a new street is to be established above or below the natural surface of the tract, and the remaining land is thereby rendered less valuable, this depreciation is an element of damage. A recent case in the New York Supreme Court, In re Skillman Ave., would seem, however, to deny this principle. There, ! See I LEWIS, EMINENT DOMAIN, 3 ed., § 4; 3 SEDGWICK ON DAMAGES, 9 ed., § 1107. LANDS CLAUSES CONSOLIDATION ACT 1845, 8 & 9 VICT., c. 18.

3 66

tion."

8

9

nor shall private property be taken for public use without just conipensaArt. V, AMENDMENTS, U. S. CONSTITUTION.

Barron v. The Mayor, etc. of Baltimore, 7 Pet. (U. S.) 243 (1833).

5 See I LEWIS, EMINENT DOMAIN, 3 ed., §§ 9, 15-61.

6 66

‘In assessing damages, . . . the inquiry is limited to the tract of land immediately affected. This is held to be so much as belongs to the proprietor whose land is taken, and is continuous with it, and used together for a common purpose." 3 SEDGWICK ON DAMAGES, 9 ed., § 1154.

"In making appraisals of this kind, the true rule . . . is to determine what will be the effect of the proposed change upon the market value of the property. The proper inquiry is, what is it now fairly worth in the market, and what will it be worth after the improvement is made." Harris, J., in Troy & Boston R. R. v. Lee, 13 Barb. (N. Y.) 169, 171 (1852).

8 In re

Lafayette Ave., 147 N. Y. Supp. 839 (1913); Patton v. Philadelphia, 175 Pa.

St. 88, 34 Atl. 344 (1896).

9

177 N. Y. Supp. 767 (1917). See RECENT CASES, infra, p. 476.

part of an unoccupied plot was taken for a street, and the owner claimed compensation for damage to the remainder caused by the use to which the city intended to put the land taken, namely, a public street at a grade several feet below the natural level of the land. The court denied recovery for this damage, saying: "The opening of a new street is a benefit to every foot and parcel of vacant land adjoining it, and, while the benefit may vary, it must be in every case substantial. No vacant land can therefore be held to be damaged by and through the very means and agency which every one concedes, and by law must assume, is a benefit." In a later case, however, In re Putnam Ave. West,10 the same court allowed recovery for similar damage where the proposed street was to be constructed at a grade from twenty-one to twenty-five feet above the natural level of the property. These words of the court sufficiently indicate the error in the first case: "The claim for damages suffered by the taking in invitum is one thing, and the assessment for benefit is another. The latter is a matter of taxation, wherein the benefits are to be equitably adjusted between the owners of lands within the area of benefit." The latter case not only represents the sounder view, but accords with the weight of decision.

A more difficult problem is presented by regulation subsequent to the establishment of a street. Abutting proprietors may find their property seriously damaged by either of two causes: first, repair and regrading, or, second, use of the street for purposes other than the normal foot and vehicular traffic. We are concerned here only with the first situation. That the abutter is remediless for damage caused by the regrading of a city's streets, if the work was done pursuant to legal authority and executed with due care, seems to have been the original view." The rationes decidendi of these cases seem to be, first, that as repair and regrading are incidental to the maintenance of a street, the injury must have been compensated in the original proceeding, and second, that as there is no occupation of additional property, there is no "taking" of "property" within the constitutional provision. The first reason is sound if the alteration was contemplated when the street was established, but if it was not, the possibility of damage in the future by reason of possible change would seem to be purely speculative. It is submitted that the second reason is based upon the erroneous conception that property in the legal sense is the res. But property is not so much land and things, as it is the sum of legal rights which the owner enjoys with reference to the res.12 Among these is the sheaf of reciprocal rights which the land

10 177 N. Y. Supp. 768 (1919). See RECENT CASES, infra, p. 476.

11 Callender v. Marsh, 1 Pick. (Mass.) 418 (1823); Radcliff's Executors v. Mayor of Brooklyn, 4 N. Y. 195 (1850); Smith v. Washington, 20 How. (U. S.) 135 (1857); O'Connor v. Pittsburg, 18 Pa. St. 187 (1851).

12 "The word 'property' . . . should have such a liberal construction as to include every valuable interest which can be enjoyed as property and recognized as such." Shaw, C. J., in Old Colony & Fall River R. R. Co. v. County of Plymouth, 14 Gray (Mass.), 155, 161 (1859). "If the land 'in its corporeal substance and entity' is 'property,' still, all that makes this property of any value is the aggregation of rights or qualities which the law annexes as incidents to the ownership of it. The constitutional prohibition must have been intended to protect all the essential elements of ownership which make property valuable." Smith, J., in Eaton v. B. C. & M. R. R., 51 N. H 504, 512 (1872).

owner enjoys in association with his neighbors, expressed in the maxim sic utere tuo ut alienum non laedas. So, if in raising the grade of a street there is an encroachment of the filling upon the abutting land,13 or a backing of water so as to overflow it,14 or an obstruction to a natural watercourse to the injury of adjoining land,15 compensation must be made. The right of lateral support is also a part of the abutter's property, and recovery has been allowed when the lowering of the street grade has caused an actual subsidence of part of the adjacent land.16 In addition to these, new rights are gained with the establishment of the street — easements of access, of light and air.17 If a street is vacated and closed in front of property, there is a taking of these appurtenant easements for which compensation must be made.18 It would seem that the raising or lowering of the street grade may have an equivalent effect. But as these rights are considered to be qualified, that is, subject to usual street uses, and as a change of grade is a normal street use, there is no taking of property if these rights are interfered with by regrading.19 It is evident, however, that an alteration of these easements may cause great damage to abutting property. Recognition of this hardship has led to the enactment of statutes in many jurisdictions giving compensation for all injuries incident to a change of grade.20 Beginning with Illinois in 1870, several states 21 have revised their constitutions, providing that private property shall not be "taken or damaged" for public use without just compensation. All damage resulting to abutting property by reason of a change of street grade should be within such a provision.22

THE NATURE of Salvage SERVICE. - Remuneration to those who have saved property from destruction at sea is said to be taken from the Roman law of negotiorum gestio, by which one who, without contract, had cared for the business or the property of an absent person was entitled to be compensated for his outlay. But it should be noted that the doctrine of salvage goes beyond the Roman law. In England prior to the seventeenth century the right of a salvor was a precarious one, being almost wholly dependent upon the generosity of the Lord High Admiral or upon that of

13 Vanderlip v. Grand Rapids, 73 Mich. 522, 41 N. W. 677 (1889); Hendershot v. Ottumwa, 46 Ia. 658 (1877); Broadwell v. City of Kansas, 75 Mo. 213 (1881).

14 Pumpelly v. Green Bay Co., 13 Wall. (U. S.) 166 (1871); Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308, 320, 321 (1874).

15 Conniff v. San Francisco, 67 Cal. 45, 7 Pac. 41 (1885).

16 Dyer v. St. Paul, 27 Minn. 457 (1881); Nichols v. City of Duluth, 40 Minn. 389, 42 N. W. 84 (1889); Park v. Seattle, 5 Wash. 1, 31 Pac. 310 (1892).

17 Williams v. Los Angeles, 150 Cal. 592, 89 Pac. 330 (1907); Story v. N. Y. St. Ry. Co., 90 N. Y. 122 (1882). See I LEWIS, EMINENT DOMAIN, 3 ed., § 120.

18 Pearsall v. Supervisors, 74 Mich. 558, 42 N. W. 77 (1889); Egerer v. N. Y. Cent. and H. R. R. Co., 130 N. Y. 108, 29 N. E. 95 (1891); Heinrich v. St. Louis, 125 Mo. 424, 28 S. W. 626 (1894).

19 McCullough v. Village of Campbellsport, 123 Wis. 334, 101 N. W. 709 (1904). 20 See I LEWIS, EMINENT DOMAIN, 3 ed., §§ 316-335, for collection of statutes.

1 See 1 LEWIS, EMINENT DOMAIN, 3 ed., § 346, note 16.

I

"City of Bloomington v. Pollock, 141 Ill. 346, 31 N. E. 146 (1892); Sheehy v.

Kansas City Cable Ry. Co., 94 Mo. 574, 7 S. W. 579 (1887).

1 See The Calypso, 2 Hagg. Adm. 209, 218 (1828). Also see DIG., III, 5.

the owner of the salved property. But to-day remuneration for salvage is a legal right, governed by a due regard for the benefit received, combined with a just consideration for the public interest in the promotion and safe conduct of marine commerce.3

Salvage in its proper signification applies only to assistance which results in the preservation of a vessel or its lading, but statutory extension has widened its scope to include the saving of human life from a vessel in distress.5 A recent Canadian case illustrates this phase of salvage. The service is so exclusively maritime in its nature that admiralty has undisputed jurisdiction, but a common-law court has a concurrent jurisdiction to allow recovery in an action in personam when the labor has been performed at request." Salvage may arise upon a contract, although the majority of cases involve services rendered to an owner of property who has had no contractual relation with the salvor.9 The right acquired may be enforced in rem against the property saved,10 or in personam against the party for whose benefit the service was performed," but both remedies may not be invoked concurrently.12 In no instance can the recovery for salvage exceed the value of the property saved.

8

Salvage proceeds upon a theory somewhat analogous to the quasicontractual right to prevent unjust enrichment, but is distinguishable from the latter in that the salvor is entitled to recover when no request for assistance has been made; 13 and, secondly, in that a right in rem is secured against the property saved. Such a right is distinct from a common-law lien in that the salvor secures a right in rem which is not dependent upon the possession of the res. The basis for this right, as well as for all maritime liens, would seem to be the urgent need in early

2 See SELDEN SOCIETY, 2 SELECT PLEAS IN THE COURT OF ADMIRALTY, Intro. xxxvi.

See Mason v. The Blaireau, 2 Cranch (U. S.), 239, 265 (1804). Salvage remuneration operates (1) as compensation for labor done, (2) as reward to the particular salvors, and (3) as an inducement for others to render like meritorious services. The Sarah, 1 C. Rob. 313, note (1800).

The Gas Float Whitton No. 2, [1897] A. C. 337, and cases collected therein. American cases have allowed salvage for a raft of logs. Whitmire v. Cobb, 88 Fed. 91 (1898); Bywater v. A Raft of Piles, 42 Fed. 917 (1890). This is contrary to the principles upon which salvage is founded, unless a raft may be included within the category of vessels.

MERCHANT SHIPPING ACT of 1894, 57 & 58 VICT. c. 60, § 544. Also enacted in Canada. See STAT. OF CANADA 1895. See also 1916 U. S. COMP. STAT. § 7992. When life salvage is allowed it creates a lien upon the ship and cargo saved which has priority over all other salvage claims. The Fusilier, Br. & Lush. 341 (1865). Prior to the enactment of such statutes, if passengers and ship were both saved, the owner of the vessel paid a greater amount of salvage than the mere rescue of the ship would entail. The Bremen, 111 Fed. 228 (1901). See 19 HARV. L. REV. 310.

Cloyoquot Sound Canning Co. v. S. S. Princess Adelaide, 48 Dom. L. R. 478 (1919). See RECENT CASES, p. 480, infra.

7 Newman v. Walters, 3 Bos. & P. 612 (1804).

The Kennebec, 231 Fed. 423 (1916). This case distinguishes a towage service which merely expedites a voyage, from a salvage service which gives relief from distress or danger.

The Apache, 124 Fed. 905 (1903); The R. R. Rhodes, 82 Fed. 751 (1897).

10 The Sabine, 101 U. S. 384 (1879).

11 The Cargo, Ex Port Victor, 17 T. L. R. 378 (1901).

12 The Sabine, supra.

13 See Falcke v. The Scottish Ins. Co., 34 Ch. D. 234, 248 (1886).