of such state or country for at least eight years. Where the requirements for admission to the bar in such state or country at the time of the applicant's admission therein are equivalent to the requirements in this state in effect at the time of the application for admission here, the Board may recommend for admission to the bar of this state an attorney licensed in such other state or country.

66

Each applicant must be a citizen of the United States, an actual resident of the State of Illinois, and twenty-one years of age or over. He must be able to speak and write readily and intelligently the English language, and must give evidence to the Committee on Character and Fitness that he understands and believes in the righteousness of the principles underlying the constitutions of the state and of the United States, and that he has such other qualifications as to character and general fitness as, in the opinion of the Committee, justify his admission to the bar."

These amendments are a remarkable proof of the determination of our Supreme Court to establish in this state those ideals of public service which the American Bar Association has advocated for the advancement of our profession and the benefit of the community.

JOHN H. WIGMORE.

COMMENT ON RECENT CASES

CONSTITUTIONAL LAW-TAXATION-FEDERAL AID INJUNCTION. The cases of Commonwealth of Massachusetts v. Mellen, Secretary of the Treasury, and Frothingham v. Same, 43 Supreme Court Reporter 597, are of far-reaching importance, as they seem to indicate that there is no practical means of legal redress or of even inquiring into the validity of the now altogether too prevalent practice of extending federal aid and the unlimited expenditure for non-federal purposes of the moneys of the nation which are raised by taxation of all kinds. The instance is but one of the many where a practice has been indulged in for sentimental and philanthropic purposes, but which can be used for those which are sordid and ulterior, and where a decision of the court which will be and is being applauded because of the sentiment in the particular case, will open the way for all kinds of extravagance. The expenditure under consideration is that entailed by the Mothers' Pension or SheppardTowner Act of November 23, 1921, 42 Stat. 224, c. 135.

The act provided for an initial appropriation and thereafter annual appropriations for a period of five years, to be apportioned among such of the several states as shall accept and comply with its provisions, for the purpose of co-operating with them to reduce maternal and infant mortality and protect the health of mothers and infants. It creates a bureau to administer the act in co-operation with state agencies, and it provides for the pensioning of and rendering monetary aid to indigent mothers. It is in line with the acts which aid the states in the building of public highways provided that they themselves first appropriate a substantial part of the cost.

As we have before stated, the purpose was laudable. Perhaps the mother and the child are so much citizens of the United States that Congress may take a direct interest in their welfare; perhaps the federal power of taxation and of spending the people's money is all inclusive; but we would like to have a chance to test this question, and it would seem under the decision here under consideration we have no such chance.

Injunctions against the enforcement of the act were soughtone by the Commonwealth of Massachusetts as parens patriæ of its citizens and taxpayers, and one by a taxpayer herself.

In the former case the court held that:

"A state cannot as parens patriæ institute judicial proceedings to protect its citizens, who are also citizens of the United States, from the operation of a statute of the United States, since, with respect to their relations to the federal government, it, and not the state, represents them as parens patriæ.'

In the latter it held that:

"A taxpayer cannot sue to enjoin the execution of a federal appropriation act on the ground that it is invalid and will result in taxation for illegal purposes, as the administration of a statute likely

to produce additional taxes is a matter of public and not of individual concern."

It may be that the decision still leaves room for an action by the Attorney General as a representative of all of the people to bring an action in which the validity of these expenditures may be tested, but there is nothing in the opinion which suggests this possibility, and it is very improbable that any attorney general could be induced to bring such an action. If he cannot, or would not, it appears that there is no means of redress and that billion dollar congresses will be the rule for many years to come.

A. A. B.

EASEMENT-EXTENT OF USER-RIGHTS OF SERVIENT OWNER. -In Diller v. St. L., S. & P. R. Co. 304 Ill. 373, 136 N. E. 703, there was involved the right of complainant Diller and his assigns, to "drive" a pipe line under the right of way of the defendant railway. This right of way had been deeded to the railway by the predecessors in title of complainant, and the deed included a reservation: "... There is also reserved the right to drive and maintain underground ways under the surface of the lands conveyed, to connect with other lands or mines." There was coupled with this particular reservation a reservation of "all coal and other minerals underlying the strip conveyed," and, evidently, because of this, and proceeding from a construction against easements, the defendant argued that the pipe line in question was not within the scope of the reservation because it was not used for coal mined, but was used to transport grain.

The Supreme Court views the reservation in respect to this right to "ways" as one of unlimited easement of way and concludes that the use by complainant was proper. In this the court would seem to be justified. The reservation is not ambiguous and, therefore, there is no room for the construction contended for by the defendant (Van Wert v. Boyes 140 Ill. 89). The conclusion that the grant is an unlimited one is also well supported by the authorities, for a grant of way for purposes of constructing, maintaining and operating thereon a single or double track railroad was held an unlimited grant for railway purposes, the language: "Single or double track railroad," being descriptive merely and not restrictive (Walker v. I. C. R. Co. 215 Ill. 610).

Suppose, however, there had been no reservation at all. It is submitted the complainant would still have had this right to drive this chute. A grant of right of way for a railroad has the same effect, as between the parties, that condemnation under eminent domain would have (Tinker v. Rockford 137 Ill. 123), and if a right of way is taken under the Eminent Domain Act, the railroad does not take the fee, but only an easement of right of way (Miller v、 Comrs. of Lincoln Park 278 Ill. 407; Bell v. Matoon W. W. Co. 245 III. 544, 549; E. St. L. R. Co. v. Trust Co. 248 Ill. 565). That being true, must it not follow that the grantor becomes servient owner? A servient owner may use the fee in any way not incon

sistent with the requirements of the dominant owner in the fullest enjoyment of his easement (Herman v. Roberts 119 N. Y. 37; Atkins v. Bordman 2 Met. 457 (Mass); Green v. Goff 153 Ill. 534; Turpin v. Dennis 139 Ill. 274).

The use of the right of way in the principal case did not interfere with the railroad's use of its easement of railroad right of way, in the slightest, and, therefore, it would seem the servient owner was well within his rights as owner of the fee.

E. M. L.

HUSBAND AND WIFE-GIFTS-PRESUMPTION OF.-In Bolton v. Bolton 306 Ill. 473, 138 N. E. 158, the controversy was about a promissory note made payable "to the order of Alexander Bolton or wife, M. J. Bolton," given as part consideration for certain real estate owned by the husband alone and sold by him to the obligors on the note. The inquiry was if the alternative provision in the note was intended as a gift to the wife or if the mention of the wife's name in it was not merely in the way of designating an agent who might receive payment of the note for the husband, who was the real owner. Upon that the court held that the evidence supported the latter of the two theories, and in this conclusion the court was doubtless correct.

The opinion contains a statement, however, that would seem likely to mislead, if taken apart from the facts of the case itself, as, very likely, it will be cited from time to time hereafter. It is this (p. 485):

"If the rights of the widow were to be claimed or upheld on the basis of a gift, the evidence must show that the donor intended to divest himself of the possession of his property, and it should be inconsistent with any other intention or purpose. The law never presumes a gift, and the burden of proof thereof is on the donee to prove the essential facts of a gift. .

This language, where a transaction between husband and wife in favor of the wife was involved, would seem to run counter to such cases as Doyle v. Doyle 268 Ill. 103, 104; Bachsects v. Leichtweis 256 Ill. 360; Clavey v. Schwadt 272 Ill. 467; Schultz v. Schultz 275 Ill. 349; Delfosse v. Delfosse 287 Ill. 264; Rybakowicz v. Id. 290 Ill. 535; Scott v. Connell 295 Ill. 414, which hold that a gift to the wife is presumed where a conveyance is taken in the name of the wife or in the joint names of husband and wife, even though the husband pays the whole consideration. The same presumption does not obtain in favor of the husband, however (Crawford v. Hurst 299 Ill. 508).

E. M. L.

MORTGAGE FORECLOSURE-JUDGMENTS-MERGER.-In Northern Trust Company v. Sanford 308 Ill. 381, 390, 139 N. E. 603, a foreclosure suit, the court, without citing a single authority or mentioning even one of the several cases contra, overthrows the settled

foreclosure practice of many years' standing in the following brief paragraph:

"The claim is also made that there was a confessed judgment entered in some court upon Lena Rosenthal's note, proof of which is made in the record. That judgment stands entirely upon its own footing, and Lena Rosenthal was not entitled to a decree for payment of that judgment, but only for the amount due on the note."

Theretofore, since Jocelyn v. White 201 Ill. 16, 66 N. E. 327, it had been unquestioned that the proper practice, where a judgment had been confessed on a note secured by mortgage, was to allege the facts concerning the judgment and take a decree of foreclosure for the amount due on the judgment, and that if the bill merely described the note it could not properly be included in the foreclosure decree. The following language in the opinion (p. 30) would seem to leave no room for doubt as to the proper practice:

"The bill contained no allegation with reference to this judgment, but, on the contrary, referred only by way of recital to the coupon note that was represented by the judgment. When judgment was taken on this note the note became merged into the judgment, and was no longer, for any purpose, the evidence of any indebtedness from Jocelyn to appellees, and no suit at law or in equity could, after the judgment, be maintained on the instrument. As to this note the character of the mortgage, by entering judgment on the note, was changed, and instead of the mortgage standing as security for the note it then stood as security for the judgment on the note, and to entitle appellees to have had such judgment included in their decree they should have declared on the same. (Wayman v. Cochrane, 35 Ill. 151; Leslie v. Bonte, 130 id. 498.) As to this note the allegations of the bill do not support the decree.'

Wayman v. Cochrane 35 Ill. 152, supports to the fullest extent the rule announced in the Jocelyn case. Under the Wayman and Jocelyn decisions the note in the Northern Trust Company case being merged in the judgment, there was no longer anything due on the note and it would not support a decree for anything. It would seem almost certain that the language in the Northern Trust Company opinion announcing a contrary rule was inadvertent and would not be followed by the court in another case properly presented. EDWARD H. S. MARTIN.

STATUTES

CONSTRUCTION REASONABLENESS- MUNICIPAL CORPORATIONS-POWERS.-In Chicago v. Green Mills Gardens 305 Ill. 87, 137 N. E. 126, appears the language (305 Ill. 94, 95):

"The question of the reasonableness of a statute or ordinance, or of the validity of the same, is one for the court (Italics sup

plied.)

In People v. Schultz 298 Ill. 128, appears the language:

"It has been many times held by this court that it can have nothing to do with the reasonableness or unreasonableness of an act of the