Page:The Green Bag (1889–1914), Volume 18.pdf/119

 THE GREEN BAG interdicted interstate trade, yet when they surrendered the power to deal with commerce as between themselves, to the general govern ment, it was undoubtedly in order to form a more perfect union by freeing such commerce from state discrimination, and not to transfer the power of restriction."" CONSTITUTIONAL LAW (Commerce). In a contribution to the New York Sun of Janu ary 8, 1906, entitled, " Has the Federal Gov ernment Constitutional Power to Establish Rates for Interstate Transportation," Edward L. Andrews contends that it has not, for reasons very like those more fully set forth by Mr. Prentice. CONSTITUTIONAL LAW (Corporations). "Power of Congress to Regulate Corpora tions," by Chauncey J. Halmin, The Brief (V. vi, p. 14). CONSTITUTIONAL LAW (Insurance). " Can Congress Regulate the Business of Insurance," by I. M. Earle, Central Law Journal, (V. Ixii, p. 28). CONSTITUTIONAL LAW (National Quar antine). W. E. Walz analyzes the cases on the constitutionality of federal regulation of quar antine in the January Michigan Law Review (V. iv, p. 189). Admitting that quarantine primarily comes under the police power which, as it has not been specially delegated to the Federal government, is reserved to the states respectively or to the people, he submits that under the accepted doctrine of the United States Supreme Court as to the extent of the power to regulate interstate commerce, Congress has power indirectly to regulate interstate quarantine because it admits and requires uniformity of regulation. Such regu lation, moreover, is an imperative necessity for the entire nation in the interest not only of interstate commerce but national health. Of this he says : That the power of Congress to regulate commerce may be used by it, not only for the advancement of commerce, but also for the promotion of other objects of national con cern, even to the partial or total destruction of commerce itself, as in the days of the Em bargo Act, cannot easily be doubted. The power has certainly been so used in the past, although its exercise to this extent, while still constitutional, represents an extreme that

could be justified only by the exigencies of a national crisis such as existed in the early days of the Republic." There have been dicta in the cases dealing with transportation of both persons and prop erty which sustain this view. He further con tends, in accordance with the doctrine of the late Professor Thayer, that the question whether the regulation of quarantine is a national question within the scope of the in terstate commerce clause is one which should be determined by Congress and not by the courts. CORPORATIONS (Partnership). Francis M. Burdick discusses, in the January Columbia Law Review (V. vi, p. i), the effect of failure to complete an attempted incorporation, in an article entitled, " Are Defectively Incorpo rated Associations Partnerships?" He con tends that they should be so regarded, and that this result is just inflicting no more hardship than where one who supposes he is a special partner in a limited partnership finds that he is a general partner, owing to failure to comply with the statute. Since incorporation has become the act of the individuals organizing the association, compliance with the statutory' requirements is the only condition of obtain ing the franchise, with the consequent limita tion upon the corporators' liability for the association debt, and there is no longer any reason for the rule that the validity of a cor poration shall not be attacked collaterally. Nor is this right to sue the individual mem bers a change of their contract any more than the right of a creditor to sue a dormant part ner of whom he did not know at the time of the making of the contract. There is no ground for any estoppel of creditors. The principal objection to holding them as partners has been the unfairness of imposing upon them a relation which they not only did not intend to assume but which they expressly intended to avoid. There is, however, an intent to carry on a common business with the capital contributed, and by agents designated by the contributors in accordance with the will of the contributors for their profit. The author sub mits that nothing here is lacking but the in tention to incur the liability of partners, and the absence of this he thinks should make no difference. " The intention to secure this ex