erection of a State elevator or warehouse in a city for public storage of grain, was not an exercise of the police power to regulate the business of receiving, weighing and inspecting grain in elevators, “the evident sole purpose of the Act," the court said, being “to provide for the State erecting an elevator and itself going into the grain elevator' business. . . . The police power of the State to regulate a business does not include the power to engage in carrying it on." This broad statement, though applicable to a case where a State interferes with rights of citizens to engage in ordinary business and embarks in a trade for purposes of profit, can hardly be extended to a case like the present where the citizen has no "inherent right" to practice the trade unmolested by the Legislature, but where, on the contrary, that very trade is universally recognized as one that falls peculiarly within the scope of the police power. It is hard to see why the Legisla ture, possessing all powers not denied them by the Constitution and among others that of conferring exclusive franchises on individuals and corporations, private and municipal, in matters of a public character, should be debarred, without some express prohibition in the Constitution, from conferring similar franchises on the State itself. In other words, it should be for the Legislature itself, in a case like the present, to determine whether the business is "so far public and essential to the general welfare that it cannot properly be thrown open to all and should therefore be conducted by the government directly or through agencies which it constitutes and can control:" Hare, Am. Constl. Law, 784. The Annotations are prepared by the following Editors and Assistants; Department of PRACTICE, PLEADING AND EVIDENCE. Hon. George M. Dallas, Editor. Assistants: Ardemus Stewart, Henry N. Smaltz, John A. McCarthy, William Sanderson Furst. Department of Coxstitutional Law. Prof. Christopher 6. Tiedeman, Editor. Assistants: Wm. Draper Department of MUNICIPAL CORPORATIONS. Hon. John F. Dillon, LL. D., Editor. Assistant: Mayne R. Longstreth. Department of EQUITY. Richard C. McMurtrie, LL. D., Editor. Assistants: Sydney G. Department of TORTS, Melville M. Bigelow, Esq., Editor. Assistants: Benjamin H. DEPARTMENT Of CorporatioNS, Angelo T. Freedley. Esq., Editor. Assistants: Lewis Lawrence Department of CARRIERS AND TRANSPORTATION COMPANIES. Charles F. Beach, Jr., Esq., Editor. Assistants: Lawrence Godkin, Owen Wister, Victor Leovy, Cyrus E. Woods. Department of ADMIRALTY. Morton P. Henry, Esq., Editor. Assistant: Horace L. Cheyney. Department of COMMERCIAL LAW. Frank P. Prichard, Esq., Editor. Assistants: H. Gordon Mc- Department of INSURANCE. George Richards, Esq., Editor. Assistants George Wharton Department of CRIMINAL LAW AND CRIMINAL PRACTICE. Department of PATENT LAW. George Harding, Esq., Editor. Assistant: Hector T. Fenton. Hon. Clement B. Penrose, Editor. Assistants: Alfred Roland Department of MEDICAL JURISPRUDENCE. Hon. Marshall D. Ewell, LL. D., Editor. Assistants: Thomas Department of WILLS, EXECUTORS AND ADMINISTRATORS. Department of TRUSTS AND COMBINATIONS IN RESTRAINT OF H. La Barre Jayne, Esq., Editor. Assistants: George S. Patterson,. 365 erection of a State elevator or warehouse in a city for public storage of grain, was not an exercise of the police power to regulate the business of receiving, weighing and inspecting grain in elevators, "the evident sole purpose of the Act," the court said, being “to provide for the State erecting an elevator and itself going into the grain elevator' business. . . . The police power of the State to regulate a business does not include the power to engage in carrying it on." This broad statement, though applicable to a case where a State interferes with rights of citizens to engage in ordinary business and embarks in a trade for purposes of profit, can hardly be extended to a case like the present where the citizen has no "inherent right" to practice the trade unmolested by the Legislature, but where, on the contrary, that very trade is universally recognized as one that falls peculiarly within the scope of the police power. It is hard to see why the Legisla ture, possessing all powers not denied them by the Constitution and among others that of conferring exclusive franchises on individuals and corporations, private and municipal, in matters of a public character, should be debarred, without some express prohibition in the Constitution, from conferring similar franchises on the State itself. In other words, it should be for the Legislature itself, in a case like the present, to determine whether the business is "so far public and essential to the general welfare that it cannot properly be thrown open to all and should therefore be conducted by the government directly or through agencies which it constitutes and can control:" Hare, Am. Constl. Law, 784. The Annotations are prepared by the following Editors and Assistants : Department of Practice, Pleading and Evidence. Hon. George M. Dallas, Editor. Assistants: Ardemus Stewart, Henry N. Smaltz, John A. McCarthy, William Sanderson Furst. Department of CONSTITUTIONAL Law. Prof. Christopher G. Tiedeman, Editor. Assistants: Wm. Draper Department of Municipal CorpoRATIONS. Hon. John F. Dillon, LL. D., Editor. Assistant: Mayne R. Longstreth. Department of EQUITY. Richard C. McMurtrie, LL. D., Editor. Assistants: Sydney G. Department of TORTS. Melville M. Bigelow, Esq., Editor. Assistants: Benjamin H. DEPARTMENT OF CORPORATIONS, Angelo T. Freedley. Esq., Editor. Assistants: Lewis Lawrence Department of Carriers and TRANSPORTATION COMPANIES. Charles F. Beach, Jr., Esq., Editor. Assistants: Lawrence Godkin, Owen Wister, Victor Leovy, Cyrus E. Woods. Department of ADMIRALTY. Morton P. Henry, Esq., Editor. Assistant: Horace L. Cheyney. Department of COMMERCIAL LAW. Frank P. Prichard, Esq., Editor. Assistants: H. Gordon Mc- Department of INSURANCE. George Richards, Esq., Editor. Assistants: George Wharton Department of CRIMINAL LAW AND CRIMINAL PRACTICE. Department of PATENT LAW. George Harding, Esq., Editor. Assistant: Hector T. Fenton. Hon. Clement B. Penrose, Editor. Assistants: Alfred Roland Department of MEDICAL JURISPRUDENCE. Hon. Marshall D. Ewell, LL. D., Editor. Assistants: Thomas Department of WILLS, EXECUTORS AND ADMINISTRATORS. Department of TRUSTS AND COMBINATIONS IN RESTRAINT OF TRADE. H. La Barre Jayne, Esq., Editor. Assistants: George S. Patterson,. Charles F. Eggleston. 365 ALTON V. FIRST National BanK.' SUPREME JUDICIAL COURT OF MASSACHUSEtts, October 22, 1892. Plaintiff endorsed certain papers supposing them negotiable notes, afterwards the principal fied and the plaintiff was called upon for payment. After paying a portion of the notes plaintiff was advised that they were not negotiable and refused further payment. A suit by the bank to recover the remaining amount was decided in his favor. He then brought this action to recover the amouut paid to the bank. Held, the mistake under which the payment was made would not warrant a recovery, it being a matter equally open to the inquiry of both parties. 'Reported in 32 N. E. Rep. 228; 157 Mass. 341. MONEY PAID BY MISTAKE OF LAW. The subject of mistake of law is involved in confusion and the decisions of the courts give little hope of the speedy adoption of a general rule or a decisive victory for either of the views that have moulded the decisions of judges and chancellors. The question is one that lies so close to the border-land of morals that it is more than difficult to decide whether the victim of circumstances shall be assisted and relieved or allowed to suffer for his stupidity. It was argued before Lord Mansfield that all the laws of the country are presumed clear, evident and certain. But the Chief Justice replied, "as to the certainty of the law it would be very hard upon the profession if the law was so certain that everybody knew it. The misfortune is that it is so uncertain that it costs much money to know what it is even to the last resort:" Jones v. Randall, Cowp. 37. Whatever may have been the |