EDITORIAL DEPARTMENT

depends ... it is most important that such decision be given at the earliest moment possible. If the law is void, there is no tenable reason why the court of last resort should not take the initiative and declare it so, even though the point is not discussed in the printed arguments presented by counsel. The former policy of deciding a ca'se on a constitutional question only as a last resort left the avoided constitutional question un settled and often wrongfully permitted the statute to bear the form of authority until finally it was questioned in a case where dis cussion and decision of its validity could not be avoided. The advantages of the new practices are obvious and will doubtless lead to a general conviction that the new rule has been announced only after due consideration and that the Indiana Supreme Court has done well in ignoring precedent and in declaring the new doctrine. "One thing can, however, be said in criti cism of the decision, or rather the procedure of the court. Counsel on neither side were given an opportunity to argue the constitu tional question. A better procedure would have been to notify them of the court's desire to be further advised and then to set the case down for argument on such propositions (as is the practice in the United States Supreme Court). In a case where all the members of the court are agreed that the law is uncon stitutional there may be small chance for a change of opinion by such argument, but it would seem that fairness and courtesy to counsel would demand that it be given. "The other new principle of law laid down by the case declares that a section of the statute ' concerning the construction of court houses in counties having a population of more than 25,000 ' is violative of the provisions of the state constitution : ' The general assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: . . . regulating county and township business,' and ' in all the cases enumerated in the preceding section and in all other cases where a general law can be made applicable, all laws shall be genera! and of uniform oper ation throughout the State.' "The court proceeds to point out that by the act the ninety-two counties of the state were divided into two classes — twenty-eight

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counties having a population of more than 25,000 and sixty-four having a population of less than that number. It is shown that the difference of population in some of the counties within the first class exceeded some of the counties of the second class by only a few hundred. ' Certainly, in the need or necessity of a court house,' says the court, ' there can be no real difference between a county of 24,000 and one of 26,000.' The rule is stated that a reason or necessity for classification ' must inhere in the subject matter and must be natural and not artificial '; and that no such distinction exists in this case, the classification of which is purely arbitrary. The statute being ' effectively local ' it was held uncon stitutional. "Classification according to differences in population has always been considered proper and indeed it has been stated to be the only proper classification." Cases declaring this are very numerous, and the author cites a great many, relating to cities, townships, and counties. Indiana has followed this rule also heretofore, " and the entire cities and town act as well as many more laws of Indiana are based upon just such classifications as have just been declared unconstitutional. "While the reasoning of the Indiana court in declaring the classification an arbitrary selection appears sound and logical it cannot but leave us with the question : What valid classification can the legislature make which will be upon a reasonable basis?" CONSTITUTIONAL LAW. "The New Question of States' Rights," by Thomas W. Martin, Central Law Journal (V. Ixvi, p. 281). CONSTITUTIONAL LAW. " Passing of State Autonomy," by H. M. Cox, Central Law Journal (V. Ixvii, p. 279). CONSTITUTIONAL LAW. " Recent Legis lation and Constitutional Decisions in Illinois," by James M. Matheny. Address before Illi nois State Bar Association, October Illinois Law Review (V. iii, p. 131). CONTRACTS. " Some Aspects of Business by Telegram," by W. F. Chipman, Canadian Law Times and Review (V. xxviii, p. 817). CONTRACTS. " Freedom of Trade," by B. A. Ross, Commonwealth Law Review (V. v, p. 241).