danger ahead, and that he is bound to exercise special care for his own sake and the sake of the public at large. It is not to be presumed, that the ordinance only was looking out for safety of a carrier's employes. The public is interested in all, and it also is interested in the preservation of the property of an interstate utility.

Why is it not true, as the dissent well says, that to take all of those things into account is "federal law?" Federal law is not operating in states in utter disregard of all local rights. It enjoins upon the carrier scrupulous regard for police power there properly declared. Whether disregard by the employe of the special ordinance is negligence per se, we do not here discuss. We concede, however, this would be a thing for federal decision to declare. But that the ordinance is not admissible as tending to show contributory negligence seems to us by no means clear.

ly, it seems to us, does not class mischievousness as a sign of abnormality. Entire absence of that would for us tend rather to prove an abnormal child. A lure, if it is a lure, might be an aggravation to childish instincts if not thoroughly guarded against. At all events, it seems to us, that it is more a question of fact as to what is a sufficient safeguard, than a question of law, and we deprecate any rule that recognizes responsibility for maintaining a lure for children and then distinguishes their instincts in the way this court does.

"If

The minority opinion well says that: a safeguard, it was because the fence was notice to the child or a hindrance to the child; in no other respect could it be a safeguard. To a child of six years it was no notice at all; the child would not know what the fence was put there for, except perhaps a thing to play upon," and "it was no hindrance; it was rather an invitation to climb." At all events, we have never heard that "capax doli" necessarily displaces childish instincts or distinguishes between attractive lures.

NOTES OF IMPORTANT DECISIONS.

NEGLIGENCE-SAFEGUARDS FOR CHIL DREN AGAINST ATTRACTIVE LURES.-In McLendon v. Hampton Cotton Mills Co., 95 S. E. 781, decided by the Supreme Court of South Carolina, it was held as matter of law, that a four-foot woven wire fence around a reservoir, though easy to climb, was a sufficient safeguard so as not to make company maintaining same responsible for the death of a six and a half year old child climbing the fence and being drowned in the reservoir.

This ruling was by a majority of three to two reversing the judgment finding liability.

The prevailing opinion speaks of normal children for whom such a barrier would be sufficient as a safeguard and those "abnormally mischievous and disobedient." "The landowner." says the court, "is not bound to erect a barrier, which no child can overcome, but only such as is sufficient to safeguard the child of ordinary and normal instincts and training."

The minority opinion does not reason about normal and abnormal children, and very right

OF

STATUTE OF LIMITATIONS-RIGHT FEDERAL COURT SITTING IN EQUITY TO DISREGARD.-In Humphreys v. Walsh, 248 Fed. 414, decided by Third Circuit Court of Appeals, the rule of a federal court in equity actions not being bound to apply the doctrine of laches as presented by state statutes of limitation, as applied in cases at law, notwithstanding the time fixed by such statutes has not expired, is extended to cover a case, where such a statute expressly provides an exception to the application thereof.

The court said: "In applying the doctrine of laches in equity actions, it must first be observed that Federal Courts are not bound by statutes of limitations of the former even when they are applicable by their terms to such actions. (Citing Supreme Court cases.) Federal Courts pursue their own rules of equity procedure and enforce the doctrine without regard 'to, and, in instances, even within the period of an applicable statute of limitations (citing one C. C. A. case). It is not necessary to discuss here the reasons that control Federal Courts in thus broadly enforcing the doctrine. These are briefly and sufficiently given with supporting cases in 10 R. C. L. 395-408. The Supreme Court of the United States has repeatedly stated and fully established the scope of the equitable defense of laches when offered in applicable state statutes of limitations as enforced by Federal Courts. If the limitation of an applicable

state statute yields to the doctrine of laches as applied by Federal Courts, an exception of a statute saving the right of action, also must yield, for, as in this instance, the exception is not available, when the statute itself falls before a doctrine with which it is in conflict."

In this case plaintiff brought suit on a demand more than thirty years old and more than fifteen years after death of the maker of the note, the operation of which the state statute suspended by exception and saved the right of action during the non-residence of obligers in the situation of this maker. The court held that, though, if plaintiff were suing in law his action would not be barred, yet in Federal Courts by laches he was barred.

Here it would seem was a mandatory provision by statute over a situation the state had the right to legislate about, and yet a Federal Court refuses to apply the statute.

Conceding that the doctrine of laches has been applied as declared, yet it must be admitted that this goes so counter to the principle of Federal Courts respecting state statute law, that the principle ought not to be extended beyond what is absolutely clear.

Besides, it is not altogether clear that the conclusion the Circuit Court of Appeals deduces is certain. Federal Supreme Court was holding along lines of general jurisprudence. It was not intending to go into the very teeth of state law. It was itself considering an exception within a statute raised by the doctrine of laches. It was not refusing to give any force to the statute. In this case the court refused to give state law any consideration at all so far as the exception was concerned.

Furthermore, the Supreme Court has always regarded that well settled decision by states constitutes a rule of property, and positive unequivocal statute ought to be as valid as settled decision. Ought ever a lower Federal Court to extend such a rule as the Supreme Court has declared?

INDIAN COUNTRY-RIGHT OF WAY TO RAILROAD WITHIN.-In U. S. v. Goldana, 38 Sup. Ct. 357, decided by U. S. Supreme Court, it was held, that, as act of Congress creating Crow Indian Reservation and granting to a railroad right of way through the reservation was to work forfeiture of all privileges upon breach of certain conditions, the grant did not extinguish Indian title and only conveyed an easement or a limited fee, leaving such right of way in Indian country and the introducing

of intoxicating liquors thereon was an offense under the act forbidding such introduction within the exterior boundaries of such reservation.

The introduction in this case was on the platform of a railroad company, and it was contended that the Indian title on the right of way had been extinguished. The court asked: "Did the statutes except from the reservation the land on which the railroad was built and extinguish the Indian title or did they merely give to the company a right of way or other limited interest in the land on which to construct and operate a railroad?"

It was said: "To have excepted this strip from the reservation would have divided it into two, and would have rendered it much more difficult, if not impossible, to afford that protection which the statutes were designed to secure." A prior case is referred to and distinguished because it involved a statute which extinguished the Indian title. Clairmont v. U. S., 225 U. S. 551.

The difficulty in applying statutes barring introduction of intoxicating liquor into Indian country, by the grant to a railroad of a right of way through a reservation, is readily appreciated and, on general principles, one would suppose, that, even if Indian title were extinguished by a grant from the government through a reservation, it ought not to operate to excuse one selling liquor thereon. But it may be that such a construction might be indulged on the theory that a criminal statute is to be taken in favorem libertatis, which view the easement or conditional fee theory is sufficient to displace. This looks though like a "narrow squeak" for holding one charged with crime.

CARRIERS OF LIVE STOCK-CONSTRUCTION OF THE THIRTY-SIX-HOUR STATUTE. The first case in the Supreme Court on the Act of Congress in 1906, to prevent cruelty to animals while in transit, and which forbids carriers to confine animals in cars longer than thirty-six hours, is that of Chicago & N. W. Ry. Co. v. United States, 38 Sup. Ct. 351, the opinion of which was handed down April 15, 1918. Justice McReynolds wrote the opinion, and very clearly defines what shall and what shall not excuse the carrier for violation of this Act.

In this case the cattle were loaded on cars at Ringsted, Iowa, destined for the Union Stockyards, Chicago. They were loaded at 6 P. M., October 4th, and arrived at Chicago October 6th at 9 A. M., thirty-nine hours and

five minutes after being loaded. There was evidence to show that the usual schedule for freight trains for that distance was less than thirty hours. The delay in this case, however, occurred while the train was passing through the town of Proviso, sixteen miles from Chicago: a drawbar dropped out, derailing one of the cars.

In the lower court the jury found the defendant guilty, and the judgment was confirmed by the Circuit Court of Appeals. In reversing this judgment, Justice McReynolds calls attention to the error of the presiding judge in instructing the jury on the question of due diligence, in which the court defined the term as meaning "whatever ingenuity human intelligence could devise and put in operation, having in mind the practical operation of a railroad, and having in mind the purpose which the law has, to get stock to market within the time mentioned."

Justice McReynolds said

"We find nothing in the Act indicating a purpose to interfere directly with the carrier's discretion in establishing schedules for trains; the design was to fix a limit beyond which animals must not be confined, whatever the schedule, except under the extraordinary circumstances stated. In general, unloading can only take place at specially prepared places or final destination. If in the exercise of ordi

nary care, prudence and foresight the carrier reasonably expects that following the determined schedule the containing car will reach destination or some unloading place within the prescribed time it properly may be put in transit. Thereafter the duty is on the carrier to exercise the diligence and foresight which prudent men, experienced in such matters, would adopt to prevent accidents and delays and to overcome the effect of any which may happen with an honest purpose always to secure unloading within the lawful period. If, notwithstanding all this, unloading is actually prevented by storm or accident the reasonable delay must be excused."

In remanding the case back to the trial court for a new trial, Justice McReynolds calls the attention of the trial court to the construction of the Hours of Service Act, which it says is analogous, especially to the decision of the Supreme Court in the case of Atchison, Topeka & Santa Fe Ry. Co. v. United States, 244 U. S. 336, where it was said:

"It was not the intention of the proviso, as we read it, to relieve the carrier from the exercise of diligence to comply with the general provisions of the Act, but only to relieve it from accidents arising from unknown causes which necessarily entailed overtime employment and service. United States v. Dickson, 15 Pet. 141. It is still the duty of the carrier to do all reasonably within its power to limit the hours of service in accordance with the requirements of the law."

REORGANIZATION OF THE JUDICIAL ADMINISTRATION OF JUSTICE*.

The fundamental reform about which there has been but little discussion which in importance overshadows all others, is the improvement in organization of our entire judicial department and our methods of selecting and retiring judges.

This reorganization of our courts can only be accomplished by a complete and consistent scheme, by which the whole judicial power of the state shall be vested in one great court, of which all our judicial tribunals shall be branches, departments or divisions. Until this principle of unified state courts is recognized and carried into effect, all our efforts to secure judicial reform will prove unsatisfactory and disappointing.

The system under which our courts were originally organized may have proven adequate for frontier states, where population was scant and confined to rural districts, where travel and communication was slow and difficult, where commerce and industry were undeveloped and the legal problems were simple and confined to those which naturally arose in an agricultural community where primitive social conditions prevailed. But with the growth of wealth and population, these primitive conditions have long ceased to prevail, and yet we are relying on court organizations, created to meet the simple demands of a frontier state for the solution of many intricate problems, the increased litigation, and the law requirements of a highly complex and advanced civilization.

*This article, by Gov. O'Neal of Alabama, is a remarkably accurate restatement of the principal reforms in the administration of justice now advocated by leaders of the bar and supported by the recommendations of the American Bar Association. It is, in substance, part of an address by Gov. O'Neal at the last meeting of the Alabama Bar Association, which has been revised for the purpose of this article.-Editor.