INTRODUCTION

To most students the method of exploring a subject followed in this book will be unfamiliar, and a few preliminary words of explanation may be useful. It is in large part the "case method," somewhat modified to suit the subject-matter, and adapted to the educational experience, maturity, and reference facilities of advanced students in American colleges and universities. The essence of the method is the critical examination of original material of an authoritative character, with a view to elaborating from that material an organized structure of principles and their dependent applications, that will cover, in a general way, the field under consideration. Matters falling within the domain of governmental activity are particularly susceptible of approach in this way, for all actions taken, all rules applied, all orders issued, all restrictions imposed in the name of the government may be impeached for invalidity, ignored, or defied with impunity, unless they rest upon some official pronouncement-the voice of the legislature, the executive, or the courts, speaking within the authority conferred by the sovereign state. It is, then, to the advantage of the student who seeks to learn how government has dealt, or is dealing, with a given problem, that he should, whenever practicable, become acquainted with the actual course pursued, not as paraphrased or interpreted by an intermediary of uncertain ability and unknown political and economic philosophy, but as set forth in the words of the official solution. Knowledge of what was done should precede the searching of men's opinions about what was done. A familiarity with what is, if not in all cases more important than an inquiry into what might be, is a most desirable preliminary to such an inquiry. This, at any rate, is the theory of the case system.

It is obvious, however, that the student can give first-hand attention to only a few of the multitudinous cases in which governmental action has been recorded. Accordingly, in making a survey of the topography, so to speak, of a particular field of activity, only the significant features are described in detail, and a knowledge of the adjacent ground must be derived by a process of deduction. Thus the principal statutes, executive orders, or judicial decisions should be extensively supplemented by class discussion, with a view first of all of ascertaining

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what they in themselves mean, then of giving emphasis and additional clarity to that meaning by illustrating their application to analogous cases, and finally of deriving the correlative rules that have grown or may be expected to grow from them. In the present text, this purpose is facilitated by the inclusion of numerous questions in each section.

THE TEXTUAL MATERIAL

The selections taken from original sources are of four kinds: (1) statutes, (2) judicial decisions, (3) administrative decisions, and (4) reports of committees or commissions. There is also a small amount of secondary material, consisting of (5) extracts from books or periodicals. In a few instances, introductory or explanatory statements or notes have been inserted by the editors, enclosed in brackets [ ]. The character and use of these five classes of material will be described briefly in the following paragraphs.

1. Statutes. In many instances these are long, characterized by a technical terminology, cumbersomely phrased, and difficult of interpretation. They may be elaborated by a tedious repetition of stereotyped clauses, they may be drawn out to wearisome length by an accumulation of modifications and qualifications, necessary or thought to be necessary because of the strict canons of statutory construction, they may be obscured by a complexity of sentence structure, a carelessness in composition, or a legalistic ponderousness in style. The study of a statute should begin with its condensation and simplification, so that the gist of its various provisions may be stated as briefly as possible. The preparation of a synopsis, in outline form when possible, is always advisable. A thorough discussion of the meaning of a statute, in so far as it may be gathered from an examination of the text, should precede a consideration of the questions appended to the statute or of the judicial decisions in which it is involved.

2. Judicial decisions. We shall deal with cases decided in the state and federal courts more than with any other one source of information. As the government has stretched out its hands over the various economic relationships that have developed in modern society, inevitably interfering with the desires of individuals to conduct their affairs as they see fit, it has encountered a persistent opposition, ready to take advantage of every possible redoubt afforded by the general inhibitions placed upon governmental power by the bills of rights of state and

federal constitutions. In our system it is given to the courts to declare with finality whether the acts of the legislature and executive departments are within the authority conferred upon those departments by constitutional grant. Consequently it is in the pages of the law reports that we find the delimitation of the farthest bounds to which governmental regulation has so far been permitted to advance. Only in the most clear-cut cases, when the action of the government is patently within the explicit terms of a constitutional grant, can one be sure that a legislative enactment or executive decree will come safely through the ordeal of questioning before a judicial tribunal. Then, too, even though a statute is unassailable on constitutional grounds, its application in concrete cases may raise difficult questions of construction that can be answered conclusively only by a court. Enough has been said to make clear why the major portion of the selections that follow consists of judicial decisions. It remains to explain, for the benefit of students who may not be accustomed to reading judicial reports, the method of preparing such reports for class discussion. This is a process of selection, analysis, distillation, and arrangement of the important elements in each case, and the result is known as a digest of the case. It should be worked out with care and, of course, reduced to writing; it will not only furnish the basis for an examination of the case under consideration and a formulation of its doctrine, but also serve as a focus of departure for other principles which ramify through the adjacent territory. A complete digest (which cannot always be secured from the report) will contain the following information:

(a) The name and citation of the case. This includes the name of the court which rendered the decision, the date of the case, and the place where the report is found.

(b) The essential facts. The events or transactions which supplied the groundwork for judicial proceedings and which are relevant to the argument of the court must often be sifted out of a mass of circumstantial and statistical detail which has no effect upon the outcome of the case. Necessarily the report will have to be read through at least once before the student will be in a position to distinguish the material from the immaterial.

(c) An account of the case in the lower court. Most of the cases used in any case book are reports of opinions delivered in connection with the decisions given in courts of appeal, usually in courts of final

appeal in the jurisdictions concerned. A case is started, as a rule, in a lower court, where findings of fact are made and the issues of law disclosed by the pleadings are decided. The digest should state briefly what happened in the lower court, as far as can be ascertained from the report at hand. What was the form of the original action? Was it a criminal or a civil proceeding? If civil, was it tortious or contractual? Was it a proceeding at common law or equity? Were the rights involved common law rights or statutory rights? What was the plaintiff asking for? Before a trial, the plaintiff and defendant are expected to try to reach an agreement as to the precise questions upon which they disagree, by an interchange of "pleadings." The one may deny the facts upon which the other rests his case (called the general traverse, or general issue), or he may deny a part of these facts (special traverse), or he may admit the facts stated but claim that there are still other facts which affect the situation materially (confession and avoidance), and these in turn may be denied by his adversary. When the parties agree to differ upon certain facts material to the case, there is said to be a "joinder" upon questions of fact, and issues of fact are presented for decision. Findings upon issues of fact may settle a controversy, but they are of no assistance in developing general principles of law. On the other hand, the defendant may, at the start, admit the facts stated by the plaintiff, but deny the existence, validity or applicability of the rule of law on which the latter's case is founded. Such a denial of the legal sufficiency of the opponent's case is called a demurrer, and, if met by a joinder, raises issues of law. The issues of law in particular should be most carefully stated, for it is usually upon those issues that the case is appealed to the higher court, and it is from those issues that the rule or rules of the case are derived. The student may not infrequently have to be reminded that an issue is a difference of opinion. No statement upon which both parties are in agreement can well be an issue in the case. In the formulation of issues, simplicity, succinctness, and clarity are greatly to be desired. This portion of the digest will close with the decision made in the lower court.

(d) An account of the case in the superior court. First, there should be an explanation of how the case reached the higher court. Was it taken by writ of error or writ of appeal? What were the errors claimed, or what were the grounds upon which the appeal was based? Are the issues the same as those in the lower court? The findings upon

issues of fact made in the latter are usually conclusive, if there is no question of the admissibility of the evidence upon which the findings rest. Even the issues of law may not always be the same; for example, the construction of a state statute by the supreme court of the state is binding upon the federal courts. The conclusions of the court upon the issues raised in the case furnish the basis for its decision, which is practically always found stated briefly at the end of the opinion. Most of the opinion deals with the argument by which the court supports the conclusions it has reached, for it is usually at pains to explain why it has rejected the contentions of the one party and adopted those of the other. If possible, the court will try to bring the case within the scope of principles already well established in earlier decisions of courts of equal or higher rank in the same jurisdiction, for it is difficult to find an authority more satisfactory to the judicial mind than a four-square precedent. Second only to precedents that can be shown to cover the case are the rules laid down in analogous cases. The court may rely, too, upon the expositions of the law found in the writings of jurists of repute, and decisions in similar cases made in other jurisdictions, though it is understood that both of these have a persuasive value only and are not binding. The various lines of reasoning, known collectively as the ratio decidendi, should be thoroughly analyzed, condensed as much as possible, and arranged in outline form. This ratio not merely serves to buttress up the rule of the case and to furnish a basis for the intelligent discussion of many of the questions appended to each case, but it also supplies a very illuminating measure of the direction and rate of advance of the frontier of judicial thought. The court may have much to say regarding rules of law which, upon careful examination, are found not to be at issue in the case under discussion and may even be quite unnecessary and irrelevant to the decision. Such digressions are known as obiter dicta, and while they may be absolutely correct statements of the law, they have, of course, no binding force as precedents within the familiar Anglo-American principle of stare decisis. The digest closes with the rule of the case, a concise statement of the point decided. Usually this will be an affirmation or negation of an issue, and if there are several issues there will be a rule for each one.

3. Decisions of administrative commissions. Many of the proceedings before such bodies as the Interstate Commerce Commission and State Industrial Commissions are conducted in much the same man