Whenever in pursuance of § 5, Art. 1 of the Constitution of the United States, the House of Representatives at the request of one-fifth of the members present shall order the yeas and nays of its members on any question to be entered on its journal, and upon a call of the roll of its members for that purpose a quorum thereof shall fail to vote, each member within the hall of the House who shall fail to vote when his name is called, unless he has a direct personal or pecuniary interest in the event of such question, and each member who shall be absent from the hall of the House when his name is called, unless he has been excused, or is necessarily prevented from being present, shall be fined the sum of $10, and the Speaker shall cause an entry of such fine to be made against such member on the journal of the House, and the same shall be collected and paid into the Treasury of the United States."

Now, there can be no doubt that the House can provide rules for its own guidance and for the regulation of the conduct of its members. So far then, as the intended rule fines a member for being absent, there can be no constitutional objection to it; but, on the other hand, it is equally certain that each member of the House has a constitutional right to his vote on every question before the House, and that a resolution prohibiting any member from voting, or force any member to vote in a way different from that which they desired would violate, not only their own constitutional rights as representatives, but the constitutional rights of their constituency.

The question which is presented by the rule is this: has a member the constitutional right, being prescnt, to abstain from voting? It might be argued that he has, for the reason that the passive act of abstaining from voting may more nearly obtain the desire of the representative in relation to the matter in dispute before the house. It may be, for instance, a perfectly logical position for one who desires the ultimate success of a measure, but thinks its consideration should be postponed until other and more pressing business was disposed of, to take this position: "If I vote against the measure, or for its postponement, I shall have, by increasing the majority for its postpone

ment or rejection, a tendency to defeat the ultimate passage of this measure in which I am really interested. If I vote for either measure, on the other hand, I accomplish its immediate passage or consideration which will postpone other and more pressing business." In other words, it might be that, in relation to a question before a legislative body, a member thereof was not placed between the alternative of voting for or against the measure, but that he had three choices: to vote for it, to vote against it, or not to vote at all. If we are right in this, the curtailment and practical prohibition against exercising one of these choices, is unconstitutional.

Since writing the above, we understand that the proposed rule, whose constitutionality is here involved in a certain amount of doubt, has been withdrawn, and the Reed Rule substituted in its place. There seems to us to be no reason to doubt the wisdom of this course. As a political question, it may be proper that the majority should be required to keep a quorum present, they being responsible for legislation, but this principle is abandoned, as well by fining a person present ten dollars for not voting as by "counting the quorum." Around the latter method there can gather no constitutional doubts. The case we have here set out in full sets them at rest forever. But the constitutionality of the rule proposed is involved in a great deal of doubt. To fine a man ten dollars for not voting when he is present is practically to force him to vote "Yea" or "Nay" on the call of the House.

PROPERTY.

Eminent domain-Consequential damages.

The case of Butchers' Ice and Coal Co. v. Philadelphia, 156 Pa. 54, contains an important statement of the liability of a municipality for consequential damages to property under Art. xvi, § 8, of the Constitution of Pennsylvania. The plaintiff owned a wharf extending into the river, and the adjoining wharf owned by the city extended over one hundred feet farther into the stream than that of the plaintiff, between was a dock sixty feet wide into which the city opened

a sewer at a point on the inner side of the dock forty-seven feet from the plaintiff's wharf. It was in evidence that deposits from the sewer obstructed the dock, and that injury could have been avoided by the extension of the sewer to the end of the city's wharf. It was held that the city was liable for consequential damages and the liability was not affected the fact the sewer was on the city's land nor was essential that the land on which the sewer was constructed should have been taken by the city by right of eminent domain. The decision therefore did not turn upon the rule that the public right of navigation is paramount to the right of sewerage (Franklin Wharf Co. v. Portland, 67 Me. 46; S. C., 24 Amer. Rep. and note), but simply upon the application of the familiar words, “taken, injured or destroyed," and therefore the case of Malone . The City, 2 Pennypacker, 370, prior to the Constitution of 1874, could be distinguished. Another difference pointed out was that in Malone v. The City, "the sewer was built in obedience to a legislative mandate," while in the case in question the sewer was constructed by authority of an ordinance of councils under the Act of April 8, 1864. Aside, however, from these distinctions the decision indicates an intention to take a broader view of the clause of the Constitution in question and will no doubt lead to efforts to extend its reasoning to other and different kinds of damage resulting from municipal improvements.

Covenants running with land.

City real property owners in general and those engaged in the undertaking business in particular will be interested in the decision in Rowland . Miller, in the New York Court of Appeals, 34 N. E. 765, affirming 18 N. Y. Supp. 793. The owner of lots in the residence part of the City of New York sold some of them under a covenant running with the land prohibiting their use for several purposes and concluding "nor shall any other buildings be erected, or trade, or business carried on upon said lots which shall be injurious or offensive to the neighboring inhabitants." Both parties occupied houses built on these lots, and an injunction was sought by the com

plainant to restrain the defendant lessee of the house next door from carrying on the business of an undertaker upon the premises. "The parties," said the court, “had in mind ordinary normal people and meant to prohibit trades and business which would be offensive to people generally and would thus render the neighborhood to such people undesirable as a place of residence." It could not be doubted that the business of undertaking was within this definition. "Judges,” said the court, “must be supposed to be acquainted with the ordinary sentiments, feelings and sensibilities of the people among whom they live," and hence, after the character of the business had been proved, the court “could have found as a matter of law that it was in violation of the restriction agreement." The contention, therefore, that the general clause in the covenant extended only to trades and kinds of business which are nuisances per se, could not be sustained. In view of the decision the decree is also interesting. It was ordered that the premises should not be used for holding autopsics, receiving, storing bodies, or holding funerals, but could be used to solicit orders and sell coffins by sample and the room called a "chapel" for a place of worship.

BOOKS RECEIVED.

[All legal works received before the first of the month will be reviewed in the issue of the month following. Books should be sent to William Draper Lewis, Esq., 738 Drexel Building, Philadelphia, Pa.]

THE BANKING QUESTION IN the United States, Report of the meeting held on January 12, 1893, under the auspices of the American Academy of Political and Social Science. Addresses by HORACE WHITE, MICHAel D. Harter, A. B. HEPBURN, J. H. WALKER, HENRY BACON and W. L. TRENHOLM. Philadelphia: American Academy of Political and Social Science, 1894.

PROCEEDINGS of the National Conference for Good CITY GOVERNMENT, held at Philadelphia, January 25 and 26, 1894, together with a Bibliography of Municipal Government and Reform and a Brief Statement Concerning the Objects and Methods of Municipal Reform Organizations in the United States. Philadelphia: Muni

cipal League, 1894.

THE ANNUAL ON THE LAW OF REAL PROPERTY. Edited by T. E. and F. E BALLARD. Vol. II, 1893. Crawfordsville, Ind.: The Ballard Publishing Co., 1893.

A TREATISE ON THE LAW Of PartnershiP. BY THEOPhilus ParSONS, LL.D. Fourth Edition. Revised and enlarged. Boston: Little, Brown & Co., 1893.

A TREATISE ON THE LAW OF BUILDING AND BUILDINGS, especially referring to Building Contracts, Leases, Easements and Liens, containing also Various Forms Useful in Building Operations, a Glossary of Words and Terms commonly used by Builders and Artisans, and a Digest of the Leading Decisions on Building Contracts and Leases in the United States. By A. Parlett LLOYD. Second Edition. Revised and enlarged. Boston and New York: Houghton, Mifflin & Co., 1894.

A TREATISE ON THE LAW of MortgaGES ON PERSONAL PROPERTY. By LEONARD A. JONES. Fourth Edition. Revised and enlarged. Boston and New York: Houghton, Mifflin & Co., 1894.

THE LAWS AND Jurisprudence of England and America, being a series of lectures delivered before Yale University. By JOHN F. DILLON, LL.D. Boston: Little, Brown & Co., 1894.

REMEDIES ANd Remedial RIGHTS BY THE CIVIL ACTION, ACCORDING TO THE REFORMED AMERICAN PROCEDURE. A treatise adapted to use in all the States and Territories where that system prevails. By JOHN NORTON POMEROY, LL.D. Third Edition. Edited by JOHN NORTON POMEROY, JR., A. M. Boston: Little, Brown & Co., 1894