74 HARVARD LAW REVIEW readily might have been imbedded in a blueberry and escaped the most careful scrutiny. The consistency of the decision with that previously discussed seems open to question. It is held in Massachusetts,^" follow- ing the early law of England, still generally prevailing where common- law forms of action are preserved,^^ that action on a warranty may be in tort and neither scienter nor negligence on the part of the defendant need be alleged or proved. Since this is true, it is difficult to see why a plaintiff should lose his case by the superfluous allegation of negligence, if, as can hardly be doubted, his pleading contained a statement of all the facts necessary to establish an implied warranty within the principle simultaneously announced by the Massachusetts court.^ Right of Public Service Company to Alter Rates Fixed by Contracts. — The problem which the public utilities of the country are seeking to solve to-day is how they may legally increase their rates in spite of long term contracts with private consumers, which in many- instances call for service at prices below present costs, ^ and especially do they want to know whether they may do this on their own initiative, or must they first obtain the permission of the commission or other rate regulating body. In V. b° S. Bottle Co. v. Mountain Gas Co. ^ the Supreme Court of Pennsylvania recently upheld the legal right of the defendant natural gas company to discontinue service under a low-rate, ten-year con- tract entered into between its predecessor and the plaintiff in October, 1913, and to require the latter to pay increased rates as per schedule filed by the defendant with the State Public Service Commission, on the ground that though said contract was valid and binding between the parties when made it became unlawful and inoperative when the public utility act ^ went into effect January i, 1 914, as it contravened the pro- visions of that statute against discrimination. It is settled that the general police power of the state embraces the regulation of the service and rates of public utility enterprises for the promotion of public convenience and the general welfare,* and that 20 Farrell v. Manhattan Market Co., 198 Mass. 271, 274, 84 N. E. 481 (1908). " Shippen v. Bowen, 122 U. S. 575 (1887). ^ Ash V. Child's Dining Hall Co. follows Crocker v. Baltimore Dairy Lunch, 214 Mass. 177, 100 N. E. 1078 (1913), where it appears that the plaintiff declined to amend his declaration by adding a count in contract, and the court, making the common but erroneous assumption that impUed warranty is based on promise rather than repre- sentation, said, "whether the plaintiff might have relied upon an implied warranty ... is not now to be considered." Presumably the counsel for the plaintiff in both the Crocker and the Ash cases failed to urge upon the court the reasoning here suggested. 1 See Re Marion Light & Heating Co. (Ind. Pub. Serv. Com.), P. U. R. 1918 D, 692; Re Oklahoma Gas & Electric Co. (Okla. Corp. Com.), P. U. R. 1918 D, 216. ^ Pa. Sup. Ct., June 3, 1918, 13 Rate Research, 335. ' Pennsylvania Public Service Company Law (1913), 6 Puedon's Digest, 7206; Supplement, 191 5.
- Munn V. Illinois, 94 U. S. 113 (1876); Chicago, Burlington & Quincy R. Co. v.
Iowa, 94 U. S. 155 (1876); Chicago, Burhngton & Quincy R. Co. v. Nebraska, 170 U. S. 57, 71-72 (1898); Portland Railway, Light & Power Co. v. Oregon Railroad
