was not going at all, and did not begin to go until a third of a century later, as a criminal punishment. He seems to make out a strong case, and to have the learned professor on the hip. In 1823 Stephen Allen, mayor of New York, by leave of the common council, printed one hundred copies of a pamphlet showing "the plan and discipline of the steppingmill," which was set up at Bellevue, at the foot of the present East 26th street, and which was visited by such crowds of the curious that it became necessary to deny entrance except on special permits. It must have been about this time that Oliver Wendell Holmes wrote his "Treadmill Song," which seems to us an ironical production, and which Mr. Hubbard takes too seriously when he calls it "soulless." We know, for a reason of our own, that treadmills could not have been very common, even at the later date, because a picture of one is very rare, and the only one we could ever find that is, of a penal treadmill was that prefixed to Allen's pamphlet. The cruel punishment was soon abolished. We recommend to Professor Baldwin and the other gentlemen in favor of whipping wifebeaters, that they substitute the treadmill. It might also be poetic justice for tramps.

precedents to ascertain what other intellects had thought. He was unquestionably a perfectly independent and fearless man, who cared as little for popular opinion and caprice as he did for the shiftings of a weathercock. He was as often as any one, perhaps oftener, a dissenter; possibly somewhat of a judicial iconoclast or agnostic. A tower of strength to our great court, he has fallen in the maturity of his powers and the best of his years, leaving a large gap in our judicial defenses, which it will be impossible at present to fill up. The governor will have a hard task to appoint, the people to elect, a competent successor to this great judge to whose upbuilding such shining gifts of nature and so many toilsome and patient years of experience, reflection and research had gone. We do not envy his successor. The people of this State can never understand how much they have owed to the silent, retired, modest man who has gone forever from the bench from which he diffused learning and dispensed equity for seventeen years.

Senator Evarts has introduced in the Senate bills to increase the salaries of the judges of the United States Circuit and District Courts within this State to nine thousand dollars for the circuit and seven thousand dollars for the district judges, with a me

York, the proposers and advocates of the bills. The present salaries are six and four thousand dollars, respectively. We heartily commend these measures, and have often urged them in these columns. These magistrates are among the most useful, most honored, and most laborious in the country; the questions before them are of great importance; their business is continually increasing. There can be no room for debate about the inadequacy of the present salaries. Here is a judicious way to spend the surplus income, or a very small part of it. We earnestly hope the bills will prevail.

NOTES OF CASES.

In the death of Judge Rapallo the people of this State have sustained a loss which must be irrepara-morial from the Bar Association of the city of New ble for many years. He was one of the only two remaining original members of that court on its organization in 1870. The advantages of his long experience and his minute acquaintance with its decisions, to say nothing of his great natural powers and his vast legal learning, cannot possibly be supplied by any new incumbent. Although the people paid to him and Judge Andrews the extraordinary compliment of a unanimous re-election three years ago, yet it is probable that no judge on the bench was less known to the people by personal association than Judge Rapallo. His reputation was exclusively professional. He lived a retired life, moving and breathing in an atmosphere of judicial investigation. He was not a famous judge, nor before his elevation to the bench was he a remarkably distinguished or well known lawyer, and yet if the opinions of his surviving brethren on that bench could be taken, no doubt they would unanimously and readily pronounce him the ablest of their number. Such, we are inclined to believe, would also be the opinion of the bar, without in any sense underestimating or failing to appreciate the marked learning and accomplishment of his associates. Judge Rapallo had a great brain, sustained by a herculean body, which enabled him to perform enor. mous labor, and he had such a calm, unemotional, almost stolid way of looking at legal questions, as so many logical propositions to be worked out by unerring revolutions of mental processes, that he was as little liable to bias and as little likely to go wrong as any judge who has lived in our times. He had a robust intellect which delighted to work things out on principle, rather than delve among

IN

[N Dunham v. City of New Britain, Connecticut Supreme Court of Errors, May, 1887, a town purchased of plaintiff and his father land on which to construct a reservoir, and the officers of the town, after getting a deed, gave an agreement back allowing plaintiff and his father to use the reservoir for fishing and sailing. The town, acting under legislative authority, in order to prevent the pollution of the water of the reservoir, passed an ordinance prohibiting its use for those purposes. Held, valid. The court said: "The use of the waters of the lake for boating, sailing and fishing is not in itself injurious, nor a nuisance, and the agitation of the surface of the water is beneficial, but as a necessary incident to or concomitant of such use, a considerable quantity of impure, and objectionable, and decayed, and decomposing matter, filth and various excreta of the human body is, from day to day, de

posited in the water of said lake. But such deposit has not been and is not at present in sufficient quantities to be appreciable in its effect upon said waters, but the knowledge on the part of the pub-quirement. It is difficult to understand why one

privilege when they undertake to exercise it without incurring the expense of a mercantile license. There is surely nothing unreasonable in such a re

The

only question therefore is whether the borough of Warren possesses, either by express grant or necessary implication, the right to enact the ordinance in question. It may well be questioned whether it does not possess the necessary authority under the common-law power incident to all boroughs as public municipal corporations; but however that may be, we are of opinion that the power clearly exists. The general borough law of 1851 (Purd. Dig., p. 202, pl. 58) gives to all boroughs 'the power to make all needful regulations respecting markets and market-days, the hawking and ped

lic of such deposit produces disgust, and tends to pre- portion of the community which engages in the vent the use of said waters by the public for domes- transaction of business in a municipality should pay tic purposes. If the germs of infectious or conta- a license fee for the privilege of doing so, and angious diseases should be deposited at or near the other portion should have practically the same privientrance of the supply pipes, such diseases might lege without paying for it, simply because the busibe communicated to the people of said city using ness is done in a different manner. The argument said waters for domestic purposes. Under these that it is contrary to common right to require a licircumstances the common council of the city of cense fee to be paid in the latter case, and therefore New Britain, acting pursuant to power given it by such a requirement is void, proves too much, since the Legislature in 1885 to make such orders and or- the same argument is applicable to the law requirdinances as it should see fit for the better protec-ing any license fees to be paid in any case. tion and preservation of the waters of said lake' passed the ordinance set forth in the finding, prohibiting under a penalty, among other things, boating, sailing and fishing on said lake. The passage and enforcement of this ordinance is what has given rise to this suit. It has had the effect to keep the public away from the lake and thus the plaintiff loses the profit of such pleasure resort, and in this manner only the acts of the defendants substantially impair the plaintiff's business and depreciate the value of his property. ** * The ordinance, having for its object the preservation of the public health, and being adapted to that object, and hav-dling of market produce and other articles in the ing been authorized by the Legislature, was a proper and valid exercise of the police power of the State; and even if the ordinance was invalid, it is obvious there would have been an adequate remedy at law, so that in either event no error could have been predicated upon a denial of the injunction. Burnett v. Craig, 30 Ala. 135; Garrison v. City of Atlanta, 68 Ga. 64." Somewhat analogous is Davenport v. City of Richmond, 81 Va. 636; S. C., 59 Am. Rep. 694, holding that an ordinance requiring the removal of powder-magazines from a city is valid, although the city had sold the site to the owners for the purpose of erecting such magazines.

A wholesome and admirable doctrine is laid down in Burgess, etc., of Warren v. Geer, Pennsylvania Supreme Court, Oct. 3, 1887, where it was held that an ordinance requiring persons canvassing from house to house for the purpose of selling or soliciting orders for books, to take out a license for that purpose, and to pay certain fees therefor, thus putting such persons on the same footing as others holding a mercantile license within the borough, is not unreasonable, as opposed to common right, and is not in conflict with the Constitution of the United States or of Pennsylvania. The court said: "By another provision of the ordinance it is declared that it shall not apply to persons holding mercantile licenses within the borough, nor to persons resident in the county selling their own farm produce. The effect of the ordinance would seem to be to subject persons who would otherwise pay no license for the privilege of doing business within the borough, to the duty of paying something for the

* * *

borough,' etc. The peddling of 'other articles' besides market produce, includes everything which may be disposed of by the method called hawking and peddling,' and we cannot say that this does not include canvassing from house to house, and soliciting orders for books."

Still more excellent is the doctrine of Common. wealth v. Turner, Massachusetts Sup. Jud. Court, Nov. 23, 1887, where it was held that letting loose a captive fox to be hunted by dogs is punishable under Public Statutes of Massachusetts, chapter 207, section 53, which provides for the punishment of any person who, having an animal in his custody, knowingly and willfully permits it to be subjected to unnecessary torture, suffering or cruelty. The court said: "The evidence tended to prove that the defendant let a fox loose from his custody in the presence of several dogs; that the fox ran into a thick wood and disappeared; that about five minutes afterward the dogs were let loose and pursued the fox, and caught it and tore it in pieces. The jury might have found that the fox was let loose by the defendant to be hunted by the dogs, and that the dogs were procured by him, and were let loose by his direction, in order that they should hunt the fox. The evidence is sufficient to prove these facts. The question is whether these facts constitute or prove the offense described in the statute. It is objected that the statute does not include noxious animals; that there is no evidence that the fox was subjected to unnecessary suffering; and that there is no evidence that it was subjected to any suffering by the defendant, or while it was in the charge or

was not going at all, and did not begin to go until a third of a century later, as a criminal punishment. He seems to make out a strong case, and to have the learned professor on the hip. In 1823 Stephen Allen, mayor of New York, by leave of the common council, printed one hundred copies of a pamphlet showing "the plan and discipline of the steppingmill," which was set up at Bellevue, at the foot of the present East 26th street, and which was visited by such crowds of the curious that it became necessary to deny entrance except on special permits. It must have been about this time that Oliver Wendell Holmes wrote his "Treadmill Song," which seems to us an ironical production, and which Mr. Hubbard takes too seriously when he calls it "soulless." We know, for a reason of our own, that treadmills could not have been very common, even at the later date, because a picture of one is very rare, and the only one we could ever find – that is, of a penal treadmill was that prefixed to Allen's pamphlet. The cruel punishment was soon abolished. We recommend to Professor Baldwin and the other gentlemen in favor of whipping wifebeaters, that they substitute the treadmill. It might also be poetic justice for tramps.

precedents to ascertain what other intellects had thought. He was unquestionably a perfectly independent and fearless man, who cared as little for popular opinion and caprice as he did for the shiftings of a weathercock. He was as often as any one, perhaps oftener, a dissenter; possibly somewhat of a judicial iconoclast or agnostic. A tower of strength to our great court, he has fallen in the maturity of his powers and the best of his years, leaving a large gap in our judicial defenses, which it will be impossible at present to fill up. The governor will have a hard task to appoint, the people to elect, a competent successor to this great judge to whose upbuilding such shining gifts of nature and so many toilsome and patient years of experience, reflection and research had gone. We do not envy his successor. The people of this State can never understand how much they have owed to the silent, retired, modest man who has gone forever from the bench from which he diffused learning and dispensed equity for seventeen years.

Senator Evarts has introduced in the Senate bills to increase the salaries of the judges of the United States Circuit and District Courts within this State to nine thousand dollars for the circuit and seven thousand dollars for the district judges, with a me

York, the proposers and advocates of the bills. The
present salaries are six and four thousand dollars,
respectively. We heartily commend these measures,
and have often urged them in these columns. These
magistrates are among the most useful, most hon-
ored, and most laborious in the country; the ques-
tions before them are of great importance; their
There can be no
business is continually increasing.
room for debate about the inadequacy of the pres-
ent salaries. Here is a judicious way to spend the
We
surplus income, or a very small part of it.
earnestly hope the bills will prevail.

NOTES OF CASES.

In the death of Judge Rapallo the people of this State have sustained a loss which must be irrepara-morial from the Bar Association of the city of New ble for many years. He was one of the only two remaining original members of that court on its organization in 1870. The advantages of his long experience and his minute acquaintance with its decisions, to say nothing of his great natural powers and his vast legal learning, cannot possibly be supplied by any new incumbent. Although the people paid to him and Judge Andrews the extraordinary compliment of a unanimous re-election three years ago, yet it is probable that no judge on the bench was less known to the people by personal association than Judge Rapallo. His reputation was exclusively professional. He lived a retired life, moving and breathing in an atmosphere of judicial investigation. He was not a famous judge, nor before his elevation to the bench was he a remarkably distinguished or well known lawyer, and yet if the opinions of his surviving brethren on that bench could be taken, no doubt they would unanimously and readily pronounce him the ablest of their number. Such, we are inclined to believe, would also be the opinion of the bar, without in any sense underestimating or failing to appreciate the marked learning and accomplishment of his associates. Judge Rapallo had a great brain, sustained by a herculean body, which enabled him to perform enor. mous labor, and he had such a calm, unemotional, almost stolid way of looking at legal questions, as so many logical propositions to be worked out by unerring revolutions of mental processes, that he was as little liable to bias and as little likely to go wrong as any judge who has lived in our times. He had a robust intellect which delighted to work things out on principle, rather than delve among

N

[N Dunham v. City of New Britain, Connecticut Supreme Court of Errors, May, 1887, a town purchased of plaintiff and his father land on which to construct a reservoir, and the officers of the town, after getting a deed, gave an agreement back allowing plaintiff and his father to use the reservoir for fishing and sailing. The town, acting under legislative authority, in order to prevent the pollution of the water of the reservoir, passed an ordinance prohibiting its use for those purposes. Held, valid. The court said: "The use of the waters of the lake for boating, sailing and fishing is not in itself injurious, nor a nuisance, and the agitation of the surface of the water is beneficial, but as a necessary incident to or concomitant of such use, a considerable quantity of impure, and objectionable, and decayed, and decomposing matter, filth and various excreta of the human body is, from day to day, de

posited in the water of said lake. But such de-
posit has not been and is not at present in sufficient
quantities to be appreciable in its effect upon said
waters, but the knowledge on the part of the pub-
lic of such deposit produces disgust, and tends to pre-
vent the use of said waters by the public for domes-
tic purposes. If the germs of infectious or conta-
gious diseases should be deposited at or near the
entrance of the supply pipes, such diseases might
be communicated to the people of said city using
said waters for domestic purposes. Under these
circumstances the common council of the city of
New Britain, acting pursuant to power given it by
the Legislature in 1885 to make such orders and or-
dinances as it should see fit for the better protec-
tion and preservation of the waters of said lake,
passed the ordinance set forth in the finding, pro-
hibiting under a penalty, among other things,
boating, sailing and fishing on said lake. The pas-
sage and enforcement of this ordinance is what has
given rise to this suit. It has had the effect to keep
the public away from the lake and thus the plaintiff
loses the profit of such pleasure resort, and in this
manner only the acts of the defendants substantially
impair the plaintiff's business and depreciate the
value of his property.
* The ordinance,

privilege when they undertake to exercise it with-
out incurring the expense of a mercantile license.
There is surely nothing unreasonable in such a re-
quirement. It is difficult to understand why one
portion of the community which engages in the
transaction of business in a municipality should pay
a license fee for the privilege of doing so, and an-
other portion should have practically the same privi-
lege without paying for it, simply because the busi-
ness is done in a different manner. The argument
that it is contrary to common right to require a li-
cense fee to be paid in the latter case, and therefore
such a requirement is void, proves too much, since
the same argument is applicable to the law requir-
ing any license fees to be paid in any case.
only question therefore is whether the borough of
Warren possesses, either by express grant or neces-
sary implication, the right to enact the ordinance in
question. It may well be questioned whether it
does not possess the necessary authority under the
common-law power incident to all boroughs as pub.
lic municipal corporations; but however that may
be, we are of opinion that the power clearly exists.
The general borough law of 1851 (Purd.
Dig., p. 202, pl. 58) gives to all boroughs 'the
power to make all needful regulations respecting
markets and market-days, the hawking and ped-

* * *

The

borough,' etc. The peddling of 'other articles' besides market produce, includes everything which may be disposed of by the method called hawking and peddling,' and we cannot say that this does not include canvassing from house to house, and soliciting orders for books."

having for its object the preservation of the public health, and being adapted to that object, and hav-dling of market produce and other articles in the ing been authorized by the Legislature, was a proper and valid exercise of the police power of the State; and even if the ordinance was invalid, it is obvious there would have been an adequate remedy at law, so that in either event no error could have been predicated upon a denial of the injunction. Burnett v. Craig, 30 Ala. 135; Garrison v. City of Atlanta, 68 Ga. 64." Somewhat analogous is Davenport v. City of Richmond, 81 Va. 636; S. C., 59 Am. Rep. 694, holding that an ordinance requiring the removal of powder-magazines from a city is valid, although the city had sold the site to the owners for the purpose of erecting such magazines.

A wholesome and admirable doctrine is laid down in Burgess, etc., of Warren v. Geer, Pennsylvania Supreme Court, Oct. 3, 1887, where it was held that an ordinance requiring persons canvassing from house to house for the purpose of selling or soliciting orders for books, to take out a license for that purpose, and to pay certain fees therefor, thus putting such persons on the same footing as others holding a mercantile license within the borough, is not unreasonable, as opposed to common right, and is not in conflict with the Constitution of the United States or of Pennsylvania. The court said: "By another provision of the ordinance it is declared that it shall not apply to persons holding mercantile licenses within the borough, nor to persons resident in the county selling their own farm produce. The effect of the ordinance would seem to be to subject persons who would otherwise pay no license for the privilege of doing business within the borough, to the duty of paying something for the

Still more excellent is the doctrine of Common. wealth v. Turner, Massachusetts Sup. Jud. Court, Nov. 23, 1887, where it was held that letting loose a captive fox to be hunted by dogs is punishable under Public Statutes of Massachusetts, chapter 207, section 53, which provides for the punishment of any person who, having an animal in his custody, knowingly and willfully permits it to be subjected to unnecessary torture, suffering or cruelty. The court said: "The evidence tended to prove that the defendant let a fox loose from his custody in the presence of several dogs; that the fox ran into a thick wood and disappeared; that about five minutes afterward the dogs were let loose and pursued the fox, and caught it and tore it in pieces. The jury might have found that the fox was let loose by the defendant to be hunted by the dogs, and that the dogs were procured by him, and were let loose by his direction, in order that they should hunt the fox. The evidence is sufficient to prove these facts. The question is whether these facts constitute or prove the offense described in the statute. It is objected that the statute does not include noxious animals; that there is no evidence that the fox was subjected to unnecessary suffering; and that there is no evidence that it was subjected to any suffering by the defendant, or while it was in the charge or