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tion for the jury;" citing Indianapolis, C.

If there was no danger to the per& L. R. Co. v. Hamilton, 44 Ind. 76.

sons and property of those who might be Again, the same author, at $ 97, p. 494, traveling along the public road in running vol. 3, says:

“Where the view of an ap- its trains without giving any notice of their proaching train is obstructed, though the approach to the bridge, then the company is company is not required by statute to sound not chargeable with negligence in not giving a whistle or ring a bell when its train ap- it. But if danger might be reasonably approaches a highway, yet, where such appli- prehended, it was the duty of the company ances are available, a failure to use them is to give some notice or warning in order that negligence;" citing cases. "Where an ap- it might be avoided. .. Whether, proaching engine is concealed from the view therefore, the company exercised proper care of persons approaching a highway crossing and diligence in running the train in order at a place of much travel, regardless of the to prevent injury to the persons and propstatute, the duty of the company to oper. erty of those who were lawfully on the pubate its train at a moderate rate of speed, lic oad and in the vicinity of the crossing, and to give the usual signals of its approach, was a question for the jury.” is more imperative than at a place of less It was further insisted in that case that danger;" citing authorities.

the company would not be liable for failing Again, the same author, at $ 154, p. 524, to sound the alarm whistle except at points vol. 3, says:

on the road where injury might result to The provisions of New York act of 1850, persons on the track at road crossings at 8 39 [p. 232, chap. 140), prescribing a penal- grade and stations. The court held that ty for running a locomotive past highway whether it is the duty of the company to crossings without giving signals, applies to give notice of the approach of its trains at a crossing where the track is carried over any point on the road depends altogether the highway on a bridge;" citing People v. upon circumstances. Where there is no reaNew York C. R. Co. 13 N. Y. 78, Affirming sonable apprehension of danger, no such no25 Barb. 199. “It is as much the duty of a tice is required. But if danger to the percompany to give notice of the approach of son or property of others may be reasontrains where highways pass under or over ably apprehended or is likely to result from the track as where they cross at grade, if the running of its trains without giving danger is likely to result to persons or prop- such notice, then it is the duty of the comerty from a failure to do so;" citing pany to give it, and its omission is negliPennsylvania R. Co. v. Barnett, 59 Pa. 259, gence. The court approved the charge of the 98 Am. Dec. 346.

circuit judge in saying that it was the duty This latter case seems to be the leading of the company to give notice wherever danauthority relied on by counsel for the plain- ger may result to persons rightfully traveltiff below, and we shall therefore proceed to ing on a public road that crosses the track, notice it in extenso. The facts of that case whether at grade, or over or under the rail. are that the public road crossed the rail- road, where danger would be the consequence road by a bridge 19 feet above the track. of want of notice. It will be observed that The plaintiff was traveling along this road, the substance of this opinion is that, whethand while driving over the bridge an express er or not it was negligence on the part of passenger train passed under it, whistling the company to fail to warn travelers of the as it passed, at which his horse took fright approach of the train to a public crossing, and ran away, overturning the carriage and was a question for the determination of the throwing plaintiff out, in consequence of jury, in view of all the surrounding circumwhich he was seriously and permanently in- stances, and it was immaterial whether the jured. It appeared that a mill on the east railroad crossed the public road at a grade, side of the public road obstructed the view or over or under the public road. of the railroad to some extent. About 100 Another case very much relied on by counrods east of the bridge there was a whistling sel for plaintiff below is Rupard v. Chesapost, and it was usual for trains going west peake & 0. R. Co. 88 Ky. 280, 7 L. R. A. to sound an alarm whistle as they passed, 316, 11 S. W. 70. In that case it appeared but at the time of the accident the whistle that the wife of plaintiff, while riding horsewas not sounded until the train was passing back on the public road at a point where the under the bridge. The court, in the midst railroad crosses said road on a high trestle, of its opinion, said: “The degree of care de- was thrown from her horse in consequence manded of the company in running its train of his fright from the noise of the train depended on circumstances, and whether it as it passed over the trestie. The ground observed due care in approaching the bridge, of liability asserted in that case was the or was guilty of negligence in not sounding failure of the company to give notice of an alarm whistle, was a question which the approach of the train to the crossproperly belonged to the jury to determine. ing. The court, in considering the liability of the company, repudiated the doc- , when Farley was in the middle of the bridge. trine laid down in Favor v. Boston & L. R. It is true that in the midst of the opinion Corp. 114 Mass. 350, 19 Am. Rep. 364, in the court said that the rule applicable to which a distinction was drawn between the grade crossings has no application to under duty of the company to warn travelers of and over crossings at every street crossing the approach of a train to an overhead in a city. “In fact," continued the court, bridge or to a grade crossing. In the Ken- "such crossings are constructed on the thetucky case the court held that it is the duty ory that, by adopting them, travel is unof a railroad company, where a train crosses obstructed, and danger to travelers on parala public highway on a trestle, and there is lel and crossing streets is lessened by the danger of catching a traveler thereunder un- | absence of the

screams of steam awares, and frightening the horse that he whistles necessary to give warning at grade is riding or driving, to give some timely crossings.” The court then said that Pennwarning of the approach of the train to the sylvania R. Co. v. Barnett, 59 Pa. 259, 98 crossing. The court, in its opinion, while Am. Dec. 346, and other cases cited, are all disagreeing with the conclusions reached by applicable to a different state of facts, and

the court in Favor v. Boston & L. R. Corp., concludes by saying: “Our decision is based - approved the principles enunciated in solely on the circumstance of an accident at

Pennsylvania R. Co. v. Barnett, 59 Pa. 263, a properly constructed overhead bridge at 98 Am. Dec. 346.

one of the many street crossings of a steam It was further held in that case that the railroad in a city.” After an examination question of negligence in failing to give no- of all the authorities cited, we think the tice should be left to the determination of true rule deducible therefrom is that, if the the jury. Counsel for plaintiff in error cites place is dangerous, then the company is on. the case of Farley v. Harris, 186 Pa. 440, erated with the duty of warning travelers on 40 Atl. 798, which case, it is claimed, is a the highway of the approach of its trains, but modification of the rule laid down in Pennsyl- whether the place, as a matter of fact, is vania R. Co. v. Barnett, 59 Pa. 259, 98 Am. dangerous, is a question for the determinaDec. 346. In that case it appeared that the tion of the jury. The law imposed no abplaintiff was crossing an overhead bridge solute duty upon the company to give notice when his horse became frightened, ran away, at this particular crossing. That duty was and injured the plaintiff. The grounds of only required, as matter of law, in the event recovery alleged in that case were two: the jury should find that danger was to be (1) That the whistle had been negligently reasonably apprehended at this conjunction sounded when the locomotive was immediate of underpass and overhead bridge. The ly under the bridge; and (2) that no whistle charge of the trial judge in this case made had been sounded by the locomotive on ap- the duty of the company absolute to give proaching this overhead bridge. The court warning of the approach of the train to the said that the rule applicable to grade cross- crossing. Said the court: "It was the duty ings—that it is negligence in railroad com- of the defendant company to give plaintiff panies not to give warning on approaching reasonable warning of the approach of the them-has no application to under and over train by the usual signals, so as to put crossings at every street crossing in a city. plaintiff upon his guard on his approaching The court, in concluding its opinion, says or passing under the track.” There was no that the cases cited by the appellant (Penn- such absolute duty resting upon the comsylvania R. Co. v. Barnett, 59 Pa. 259, 98 pany either at common law or by statute, Am. Dec. 346, and other cases) are all appli- but its duty in this respect was entirely decable to a different state of facts than ‘are pendent upon the question of fact whether presented here.

the place was dangerous. The charge of the A careful examination of Farley v. Harris, court should have been so formulated as to 186 Pa. 440, 40 Atl. 798, will show that the leave to the determination of the jury the gravamen of the action was the blowing of dangerous character of the place as the predthe whistle when Farley was on the bridge, icate for the application of the principle of and the locomotive was directly beneath it. law announced. For the error indicated, The proof was that the fright of the horses the judgment is reversed and the cause was caused solely by the blasts of the whistle remanded. 69 L. R. A.







STATE of Minnesota, Respt., done wilfully and unlawfully, the state can

not disregard this feature of the formal Robert H. EDWARDS et al., Appts.

charge as surplusage, and omit to prove it.

Felton v. United States, 96 U. S. 699, 24 (......Minn.......)

L. ed. 875; Potter v. United States, 155 U. *]. Section 2, chap. 225, p. 246, Laws S. 438-446, 39 L. ed. 214–217, 15 Sup. Ct. requires

Rep. 144. chant, duly licensed to sell grain on commission, to render a true statement to the

There is no law making it unlawful for consignor within twenty-four hours of mak

those who follow the business of grain coming a sale, showing the grain sold, price re- mission merchants under the act here under ceived, name and address of purchaser, and consideration also to buy grain on the open the date, hour, and minute when sold, with market, on their own account, and to sell vouchers for charges and expenses. Held: This law contemplates an actual purchaser, the same at an advance, if possible. other than the consignee, and the purchase

The disability which the law, from conby him of such grain, after close of business siderations of public policy, imposes upon hours, at the highest price of the day upon the defendants in this transaction, is also the board of trade, is not a sale within the imposed upon all parties occupying towards meaning of this act, and a report of such sale others certain confidential or fiduciary relato the consignor is not a compliance with its provisions. If the consignee makes such

tions. chase, and subsequently sells the same at an

Allis v.

Gilbert v.

Hewetson, 79 Minn. 326, 79 Am. advance, such sale inures to the benefit of St. Rep. 486, 82 N. W. 655. the consignor, and the failure to return to

Such a transaction between principal and him a true statement, as provided, constitutes a violation of the law.

agent is not void, but voidable. 2. The consignor is not estopped from

Billings, 6 Met. 417, 39 Am. Dec. repudiating a purchase of grain by his 744; Mechem, Agency, $ 464; Story, Agency, consignee, unless he acquiesces therein, and $ 214; 1 Story, Eq. Jur. 11th ed. § 316a; ratifies the same after being fully informed Eastern Bank v. Taylor, 41 Ala. 93; Bassett of the entire transaction, including a subse

v. Brown, 105 Mass. 551; Marsh v. Whitquent sale at a profit. 3. The statement in the criminal com- more, 21 Wall. 178, 22 L. ed. 482; Hammond plaint that defendants wilfully and unlaw.

v. Hopkins, 143 U. S. 224-251, 36 L. ed. fully made a false report is immaterial. The 134-145, 12 Sup. Ct. Rep. 418; Hoyt v. penalty is imposed for a failure to render Latham, 143 U. S. 553-366, 36 L. ed. 259the report as provided, irrespective of intent, 264, 12 Sup. Ct. Rep. 568; Ferguson V. and it is immaterial that the consignee acted Gooch, 94 Va. 1, 40 L. R. A. 234, 26 S. E. in good faith and in accordance with the 397 ; Staats v. Bergen, 17 N. J. Eq. 554;

of commission merchants in that locality.

Porter v. Woodruff, 36 N. J. Eq. 174; Adams 4. Chapter 225, p. 246, Laws 1899, is v. Sayre, 76 Ala. 509 ; Ives v. Ashley, 97

constitutional, and not in conflict with Mass. 198; Sims v. Miller, 37 S. C. 402, 34 the Federal Constitution, as an interference | Am. St. Rep. 762, 16 S. E. 155; Francis v. with interstate commerce.

Kerker, 85 Il. 190; Greenwood v. Spring, (February 17, 1905.)

54 Barb. 375; People v. Open Board, 92 N.

, ed$ ; Am the Municipal Court of Duluth denying & Eng. Enc. Law, 2d ed. p. 892; Lord v. a new trial after their conviction for alleged Hartford, 175 Mass. 320, 56 N. E. 609; violation of the statute governing returns by Bryan v. Balduin, 52 N. Y. 232; 2 Cook, commission merchants. Affirmed.

Corp. 4th ed. $ 652; Bjorngaard v. Goodhue The facts are stated in the opinion.

County Bank, 49 Minn. 483, 52 N. W. 49; 1 Messrs. Alexander Marshall and Am. & Eng. Enc. Law, 2d ed. pp. 1073, 1080; Warner E. Whipple, for appellants:

1 Perry, Tr. $$ 205-206 ; Baldwin v. Allison, Having charged the offense as having been 4 Minn. 25, Gil. 11; Tilleny v. Wolverton,

46 Minn. 256, 48 N. W. 908. *Headnotes by LEWIS, J.

Such voidable sales have the effect of de

vesting the property of the principal, cestui NOTE.-As to rule that agent must not profit at his principal's expense in the matter of his que trust, or party similarly situated, and agency, see also, in this series, Tyler v. San passing the same, subject to divestiture by born, 4 L. R. A. 218, and note; McNutt v. repudiation, to the agent or trustee, or to Dix, 10 L. R. A. 660 ; Jansen v. Williams, 20 L. their vendees. R. A. 207; Boswell v. Cunningham, 21 L. R.

Pearce v. Gamble, 72 Ala. 341; Baldwin A. 54; Kimball v. Ranney, 46 L. R. A. 403 ;

v. Allison, 4 Minn. 25, Gil. ll; Grumley v. Holmes v. Cathcart, 60 L. R. A. 734; Trice v. Comstock, 61 L. R. A. 176, and Van Dusen v. 1

Webb, 44 Mo. 444, 100 Am. Dec. 304; FounBigelow, 67 I. R. A. 288.

| tain Coal Co. v. Phelps, 95 Ind. 271; Kruse


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v. Steffens, 47 ml. 112; Marshall v. Carson, The contract was binding until Carlson 38 N. J. Eq. 250, 48 Am. Rep. 319; Bassett gave notice of his dissatisfaction with, and v. Brovin, 105 Mass. 551; Lytle v. Beveridge, refusal to be bound by, such transactions. 58 N. Y. 592; Fulton v. Whitney, 66 N. Y. Nichols & 8. Co. v. Snyder, 78 Minn. 502, 548; Gilbert v. Hewetson, 79 Minn. 326, 79 81 N. W. 516. Am. St. Rep. 486, 82 N. W. 655; Lees v. Where a principal confers on an agent Nuttall, 1 Russ. & M. 53; 1 Perry, Tr. $ 206. an authority of a kind, or empowers him to

Being voidable only, it was capable of transact business of a nature, in reference ratification.

to which there is a well defined and generalRatification may be shown by acts of ac- ly known custom or usage, it is the preceptance.

sumption of law, in the absence of anything Hatch v. Taylor, 10 N. H. 538; Hazard v. to indicate a contrary intent, that the auSpears, 2 Abb. App. Dec. 353; 1 Am. & Eng. thority was conferred in contemplation of Enc. Law, 2d ed. p. 1193; Goss v. Stevens, such custom or usage, and to be exercised 32 Minn. 472, 21 N. W. 549; Wright v. Vine- with reference thereto. yard 11. E. Church, 72 Minn. 78, 74 N. W. Kraft v. Fancher, 44 Md. 215; Long Bros. 1015; Anderson v. Johnson, 74 Minn. 171, v. J. K. Armsly Co. 43 Mo. App. 267; Sut77 N. W. 26; Smith v. Fletcher, 75 Minn. ton v. Tatham, 10 Ad. & El. 27; Graves v. 189, 77 N. W. 800; Robbins v. Blanding, 87 | Legg, 2 Hurlst. & N. 210; Guesnard v. LouMinn. 247, 91 N. W. 844.

isville & N. R. Co. 76 Ala. 453; Samuels v. Carlson's conduct amounted in law to a Oliver, 130 Ill. 73, 22 N. E. 499; Oldershaw ratification.

v. Knoles, 4 III. App. 63; Bayliffe v. ButterWright v. Vineyard M. E. Church, 72 worth, 1 Exch. 425; Pollock v. Stables, 12 Minn. 78, 74 N. W. 1015; Anderson v. John. Q. B. 765; Goodenow v. Tyler, 7 Mass. 36, 8on, 74 Minn. 171, 77 N. W. 26; Robbins v. 5 Am. Dec. 22. Blanding, 87 Minn. 246, 91 N. W. 844; Bas By reason of partial transit of the car sett Brown, 105 Mass. 551; Story, through Wisconsin, the transaction lost its Agency, 244; Mechem, Agency, § 167; character of domestic commerce, and beHankins v. Baker, 46 N. Y. 666; Cook v. came interstate. Tullis, 18 Wall. 332-338, 21 L. ed. 933-936; Pacific Coast S. S. Co. v. Railroad Comrs. Marsh v. Fulton County, 10 Wall. 676–684, 18 Fed. 10; Sternberger v. Cape Fear & Y. 19 L. ed. 1040–1042; Grenada County v. Valley R. Co. 29 S. C. 510, 2 L. R. A. 105, Brogilen, 112 U'. S. 271, 28 L. ed. 707, 5 Sup. 7 S. E. 836; Hanley v. Kansas City SouthCt. Rep. 125; Sykes v. Columbus, 55 Miss. ern R. Co. 187 U. S. 617, 47 L. ed. 333, 23 115; Loury v. Harris, 12 Minn. 255, Gil. Sup. Ct. Rep. 214; St. Clair County v. In166; Sheffield v. Ladue, 16 Minn. 388, 10 terstate Sund & Car Transfer Co. 192 U. S. Am. Rep. 145, Gil. 346; Wisconsin v. Torin. 454-458, 48 L. ed. 518-520, 24 Sup. Ct. Rep. u8, 26 Minn. 5, 37 Am. Rep. 395, 49 N. W. 300; Wavush, St. L. & P. R. Co. v. Illinois, 259; Hunter v. Cobe, 84 Minn. 187, 87 N.] 118 U. S. 565, 30 L. ed. 247, 1 Inters. Com. W. 612; Cleus v. Jamieson, 182 U. S. 461- Rep. 31, 7 Sup. Ct. Rep. 4; Leisy v. Hardin, 483, 45 L. ed. 1183-1194, 21 Sup. Ct. Rep. 135 U. S. 108, 34 L. ed. 132, 3 Inters. Com. 845; Hoyt v. Thompson, 19 N. Y. 219; Rep. 36, 10 Sup. Ct. Rep. 681; Mobile CounBallston Spa Bank v. Marine Bank, 16 Wis. ty v. Kimball, 102 U. S. 702, 26 L. ed. 241; 125 ; 2 Kent, Com. 616; Saveland v. Green, Bouman v. Chicago & N. W. R. Co. 125 U. 40 Wis. 431; Brown v. La Crosse City Gas. S. 485, 31 L. ed. 707, 1 Inters. Com. Rep. light & Coke Co. 21 Wis. 51.

823, 8 Sup. Ct. Rep. 689. If the principal wishes to repudiate the Being such, the state had no power over unauthorized act of his agent. he should do it. so when it is brought to his knowledge. Robbins v. Taxing District, 120 U. S. 489

Law v. Cross, 1 Black, 535, 17 L. ed. 185: | 492, 30 L. ed. 694-696, 1 Inters. Com. Rep. Hoyt v. Thompson, 19 N. Y. 218; Indian- 45, 7 Sup. Ct. Rep. 592; Welton v. Missouri, apolis Rolling Mill v. St. Louis, Ft. 8. & W.91 U. S. 280, 23 L. ed. 349; State Freight R. Co. 120 U. S. 256,30 L. ed. 639, 7 Sup. Ct. Tax Case, 15 Wall. 280, 21 L. ed. 163; MoRep. 542; Cleus v. Jamieson, 182 U. S. 461-bile County v. Kimball, 102 U. S. 697, 26 L. 483, 45 L. ed. 1183-1194, 21 Sup. Ct. Rep. 845. ed. 240; Bowman v. Chicago & N. W. R. Co.

The return of the proceeds of an unauthor | 125 U. S. 480, 31 I. ed. 705, 1 Inters. Com. ized act is a condition precedent to repudia. Rep. 823, 8 Sup. Ct. Rep. 689, 1062; tion, and the failure so to return or tender Gloucester Ferry Co. v. Pennsylvania, 114 such proceeds is a ratification.

U. S. 197, 29 L. ed. 159, 1 Inters. Com. Rep. Johnston v. Jilwaukee & w. Invest. Co.49 382, 5 Sup. Ct. Rep. 826; Henderson v. New Neb. 68, 68 N. W. 383; First Nat. Bank v. York (Henderson v. Wickham) 92 U. S. Obcrne, 121 III. 25, 7 N. E. 85; Farmers & 259-271, 23 L. ed. 543-548; Brennan v. TiM. Bank v. Farmers & 11. Nat. Bank, 49 tusville, 153 U. S. 289-299, 38 L, ed. 719Neb. 379, 68 N. W. 488.

722, 4 Inters. Com. Rep. 658, 14 Sup. Ct.

Rep. 829; Walling v. Michigan, 116 U. S. Colbert v. Shepherd, 89 Va. 401, 16 S. E. 446-460, 29 L. ed. 691-695, 6 Sup. Ct. Rep. 246. 454; Crutcher v. Kentucky, 141 U. S. 47–58, By no possible construction of the law can 35 L. ed. 649-652, 11 Sup. Ct. Rep. 851; it be satisfied by a report made by the Norfolk & W. R. Co. v. Pennsylvania, 136 U. inerchant of a pretended purchase made by S. 118, 34 L. ed. 396, 3 Inters. Com. Rep. himself. 178, 10 Sup. Ct. Rep. 958; Pickard v. Pull State ex rel. Beek v. Wagener, 77 Minn. man Southern Car Co. 117 U. S. 34, 29 L. | 483, 46 L. R. A. 442, 77 Am. St. Rep. 681, 80 ed. 785, 6 Sup. Ct. Rep. 635; Crandall v. N. W. 633, 778, 1134. Nevada, 6 Wall. 36, 18 L. ed. 745; State

This transaction was a Minnesota transFreight l'a:c Case, 15 Wall. 272, 21 L. ed. action, between residents of Minnesota, and 160; Stockard v. Morgan, 185 U. S. 37, 46 concerns grain that was actually or conL. ed. 794, 22 Sup. Ct. Rep. 576; Philadel structively within the state of Minnesota at phia & S. Mail 8. 8. Co. v. Pennsylvania, the time of the transactions 122 U. S. 326, 30 L. ed. 1200, 1 Inters. Com. Hopkins v. United States, 171 U. S. 578, Rep. 308, 7 Sup. Ct. Rep. 1118; Leloup v. 13 L. ed. 290, 19 Sup. Ct. Rep. 40. Mobile, 127 U. S. 640-645, 32 L. ed. 311 Where no discrimination is made between 313, 2 Inters. Com. Rep. 134, 8 Sup. Ct. Rep. the business that or ginates outside of the 1380; American Fertilizing Co. v. Board of state and that which originates in the state, Agriculture, 11 L. R. A. 179, 3 Inters. Com. the courts have always upheld the right to Rep. 532, 43 Fed. 609; Re Spain, 14 L. R. require licenses of persons engaged in any A. 97, 3 Inters. Com. Rep. 738, 47 Fed. 208 ; business the regulation or control of which San Bernurdino v. Southern P. Co. 107 Cal. conies within the proper exercise of the po524, 29 L. R. A. 327, 40 Pac. 796; State v. lice power of the state. Scott, 98 Tenn. 254, 36 L. R. A. 461, 39 S.

Prentice & Egin, Commerce Clause of Fed. W. 1; Laurens v. Elmore, 55 S. C. 477, 45 L. Const. p. 279; Emert v. Missouri, 156 U. S. R. A. 249, 33 S. E. 560; Re Wilson, 10 N. M. 296, 39 L. ed. 430, 5 Inters. Com. Rep. 68, 15 32, 48 L. R. A. 417, 60 Pac. 73; State v. Sup. Ct. Rep. 367; Parsons v. Missouri, 166 Northern Pacific Exp. Co. 27 Mont. 419, 94 U. S. 719, L. ed. 1187, 17 Sup. Ct. Rep. Am. St. Rep. 824, 71 Pac. 404.

997; Preston v. Finley, 72 Fed. 858; Re May, The defendants cannot be held criminally 82 Fed. 425; Oliver Finney Grocery Co. v. responsible.

Speed, 87 Fed. 413; Anniston v. Southern R. 1 Bishop, Crim. Law, 1892 ed. 88 317, Co. 112 Ala. 566, 20 So. 915; Carrollton v. 892; State v. Mahoney, 23 Minn. 181; State Bazzette, 159 Ill. 293, 31 L. R. A. 522, 42 N. v. Robinson, 55 Minn. 169, 56 N. W. 594; E. 837; State v. Wheelock, 95 Iowa, 585, 30 Barnes v. State, 19 Conn. 398; People v.

L. R. A. 429, 58 Am. St. Rep. 442, 64 N. W. Hughes, 86 Mich. 180, 48 N. W. 945; Com. 620; Stale v. Montgomery, 92 Me. 439, 43 v. Stevens, 153 Mass. 421, 11 L. R. A. 357, Atl. 13; Wrought Iron Range Co. v. Carver, 25 Am. St. Rep. 647, 26 N. E. 992; Ståte 118 N. C. 334, 24 S. E. 352; Schollenberger v. Heck, 23 Minn. 549; 1 McClain, Crim. v. Pennsylvania, 171 U. S. 23, 43 L. ed. 57, Law, 1897 ed. $ 188; United States v. Beaty, 18 Sup. Ct. Rep. 757. Hempst. 487, Fed. Cas. No. 14,555.

When the court has once held that the Messrs. Freeman P. Lane and John R. business of selling grain upon commission is Bane also for appellants.

one that is subject to the regulation of the Messrs. W. J. Donahower, Attorney

police power of the state, it is placed within General, and Washburn, Bailey, &

the list of business which may be regulated Mitchell, for respondent:

by the state law, even though it be interstate The agent with power to sell, if he vio.

wholly. lates his instructions, and, instead of selling 39 L. ed. 223, 5 Inters. Com. Rep. 590, 15

Plumley v. Massachusetts, 155 U. S. 461, to an actual purchaser, makes the purchase Sup. Ct. Rep. 154; 12 Rose's Notes (U. S.) himself, in effect puts himself in a position of allowing his principal to treat the mat

The commission merchant who does his ter as a sale, or to treat it as a nullity, business through an agent makes himself rewhen all the facts are known.

sponsible for the omissions of the agent as Looked at from the standpoint of the con tully as if everything done by the agent signor, it is an absolute nullity.

had been done by himself. The question of Gilbert v. Hevetson, 79 Minn. 333, 79 Am. intent in such laws is wholly immaterial. St. Rep. 486, 82 N. W. 655; Holmes v. Cath

People v. Roby, 52 Mich. 577, 50 Am. Rep. cart, 88 Minn. 213, 60 L. R. A. 734, 97 Am. 270, 18 N. W. 365; People v. Blake, 52 Mich. St. Rep. 513, 92 N. W. 956; Tilleny v. Wol. 566, 18 N. W. 360; People v. Snowberger, verton, 46 Minn. 256, 48 N. W. 908; Bain 113 Mich. 86, 67 Am. St. Rep. 449, 71 N. W. v. Brown, 56 N. Y. 285 ; Leathers v. Canfield, 497; Smith y. Ayrault, 71 Mich. 487, 1 L. 117 Mich. 277, 45 L. R. A. 41, 75 N. W. 612; R. A. 311, 39 N. W. 724; State v. Hartfiel,

p. 659.

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