« PreviousContinue »
been written. And it is an interesting qucry whether had the court considered the Act of New Hamphire in that casc nothing more than the confiscation of property, whether they would have affirmed the decision of the State Court, or held that an cx post facto law could apply to a civil as well as to a criminal case.
however this may be, it will be interesting to sec what Prof. Thayer will do when he comes to publish cases illustrative of that clause in the Constitution which prohibits a State from passing laws impairing thic obligation of contracts. Well, he will omit Fletcher a, Peck?
In a subject like Constitutional Law the same case may bc of great importance, not only in onc, but in two or more branches of the subject. Spacc prohibits that the cases should be republished in every connection. Rcferences to a case which was impurtant in onc connection, which had been reported in another, night be valuable, but the report of the casc having been written from the standpoint that the case is to illustrate the development of a particular principle of law, the report naturally brings out the parts of the case and the parts of the opinion dealing with that principle, and, therefore, the report may not be suited as an illustration of the development of other principles. Prof. Thayer has prepared himself for getting around this difficulty by printing the opinion of the court in such cascs as Fletcher v. Peck, in full. Why, however, he omitted the opinion of Mr. Justice Johnson, in that case, we do not know. Will not that opinion be important when he comes to discuss the meaning of cx post facto laws, or whether a law can be declared void because against the spirit of the Constitution? In fact, we note that all the cases on the subject of the power of the court to set aside acts for their unconstitutionalty seems to omit those opinions, like Mr. Justice Johnson in Fletcher '. Peck, which would set aside the Act of the Legislaturc, not becausc it was contrary to any ex. press clause in the written Constitution, but because it was not to be presumed that the Legislature had been granted power to pass such Acts. For instance, the case of Trustee of the Uni. versity v. Foy, and the opinion of Mr. Justice Chase in Calder v. Bull has been entirely omitted. It is true that the ideas rep
resented in these cases, and in the opinion of Mr. Justice Johnson did not at the time develop into principles of Constitutional Law, but to-day such members of the Supreme Court as Mr. Justicc Brewer are reverting to the ideas of Chase and Johnson and Mr. Haywood, counsel, in the case of the Trustces of the University v. Foy above mentioned, and basing their opinions on Constitutional matters on lines of reasoning suggested by these old cases and opinions. (Sec AMERICAS LAW REGISTER AND REVIEW, Vol. 32, 971).
Even peculiar doctrincs of constitutional law, though never again taken up by the members of the profession and of the present Supreme Court, are sometimes interesting and instructive. We presume, however, that to insert all the ideas on Constitutional Law, as well as those which come to naught, as those which developed and became imbedded as part of the fundamiental principles of the subject, would have unduly increased the size of thc work.
The volume before us is the first instalment of what is evidently a work of permanent value, to which will turn all students of Constitutional Law, as well those students of twenty-five years hence, as those of to-day. If the remaining parts of this work attain, as they doubtless will, the high standard of the first part, the profession will owe another debt of gratitude to the University in Massachusetts.
W. D. L.
A TREATISE ON THE LAW OF PARTNERSHIP. By THEOPHILUS
PARSONS, LL.D. Fourth Edition. Revised and Enlarged JOSEPH HESRY BEALE, Jr. Boston: Little, Brown & Co., 1893.
It has been fifteen ycars since the third edition of Professor Parson's work made its appearance.
It is to Mr. BEALE (Assistant Professor of Law at Harvard) that we owe the present revision and enlargement of the “ Partnership." The Editor has done his work well. In the first place, he has added a chapter upon a subject which has seen much develop
mcnt and undergonc important changes since the previous publication of the work—that of business combinations and “ trusts." The question is treated very clearly, though bricfly, finding a place in the work from its relation to partnership law rather than for the purpose of discussing its depths, interesting and important though they undoubtedly are. This chapter first describes a few of the present more important “ trusts," and shows thc objects of their custom and thcir naturc legally considered. The question of illegality is then taken up, and, as regards thc cascs to which corporations are parties, a distince tion drawn between thc violation of, or departure from, charter rights, and the more interesting and less well-defined ground of "public policy." A list of the various State “anti-trust" acts is added in a note and a brief mention of the extent to which they
The cditor remarks in his preface that “ much of the discussion in the first and fifth chapters " (of the previous cdition)
was rendered unnecessary by Cox v. Hickman." The mercantile conception has, he says, become the legal conception as well. On page 41, chap. 5, the partnership character is discussed.
Mr. Bcalc has not hesitated to make libcral use of his office as regards the treatment of the notes. We find, however, that the changes are improvements, and such is surely the province of thc cditor.
A uscful appendix of forms for partnership agreements (and disagreements) is added. The book has throughout becn divided into sections, following the present almost universal custom. Text books are usually consulted, not read continuously, and some sort of heading to the various subjects arc necessary.
W. S. E.
The Editors announce that the following erratum has been brought to their attention : Page 69, ad column, ath line of the January number, 1894 (Vol. I, N. S., No. 1), after the words " upon the discretion of a last trustee," insert " or being given in perpetuity."
AMERICAN LAW REGISTER
THE COMMERCIAL BASIS FOR RAILWAY
By THOMAS L. GREEXE.
During the year 1893 there were placed in the hands of receivers 76 railway companies, small ard large, owning 29,380 miles of line and representing stocks and bonds to the amount of $1,754,806,000, being one-sixth of the railway mileage and onc-sixth of the railway capital of the country. Thesc figures of capitalization do not include car trust notes, floating debts or other liabilities, which would add considerably to the total. At present about one-fourth of the entire railway mileage of the country is being operated by these officers of the courts.
These large figures suggest at once the importance which the question of railway receiverships has assumed of late through the inability of railway companies to meet their obligations. The practice of operating insolvent railways through court officers appointed for the purpose is not yet definitely settled either as to the methods of working or as to the legal doctrines involved, the whole matter being yet in a state of evolution. It is the boast of our law that it changes to meet the changing demands of commerce, as business becomes more complex and the rules governing it necessarily more
involved ; so as regards railway receiverships our present situation is the result of a compromisc between the terms of railway mortgages and the commercial conditions under which railway operations are carried on.
The original idca of appointing a rccciver to take charge of thic property of a firmi or individual was that the business might be wound up with as little delay as possible and the assets sold and distributed to thc creditors in some cquitable proportion. As corporations became more common, taking the place of firms and individuals, the same idea was applied to them when insolvent. They were placed in the hands of receivers in order that their affairs might be closed up with the least possible delay by dividing the assets among thic crelitors in the proportion to which it was shown they were entitled. It was incvitable that the question of the proper method of treating insolvency among railway companics should arisc. from small bezinnings the number of miles of railway in the United States incrcased rapidly until now, judged by the magnitude of the property invested and the amount of business done, the railways form perhaps our largest industry, certainly one of the most complex. Through one cause or another it was incvitable that bankruptcy should increase among these rail carriers as their inilcage increased; and in such cases also it was natural, as in the cases of firms or small corporations, that receivers should be appointed pending a settlement of the insolvent debtor's affairs. But here a new question arose. A trading firm or corporation unable to pay its debts could be wound up and its assets distributed to its creditors without loss to the community. Other traders could take their places and business would go on as before; but it was otherwise with the railways. It was quickly seen that great states and sections of states dependent upon the continued operation of these railways for the transaction of their every day business, for supplics of clothing and manufactured goods and even for mcat and broad. Whatever the outcome the trains must be kept running. Since, in the course of time, local railways had grown into systems, it was found that the interests involved in these systems were so enormous that their combined assets