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The Green Bag

gambling a crime only where it is accom panied by record, registry or the use of some part of the paraphernalia of professional gamblers, except in the case of poolselling, where probably no writing or record is necessary to constitute the crime." Con sequently oral betting does not constitute book making inviolation of the anti-race

track gambling laws in New York State To hold otherwise would be "a departure from the rule which gives to the terms of the statute their ordinary and accepted meaning, and would be a construction which was not within the contemplation of the legis lature." (Reported in N. Y. Law Jour., Nov. 15, 1909.)

Correspondence The Dartmouth College Case To the Editor of The Green Bag:— ALLOW me to point out certain inaccura cies in your review (in Green Bag for October) of my article on "Confusion of Property with Privilege: the Dartmouth College Case," published in The. Independent for August 26. You state that the Charles River Bridge case "holds that an act contrary to the Constitution is not a legislative act." The page (644) and statement to which you refer, are found in Story's dissenting opinion; and the statement is only incidental to his main contention. The effect of the decision is that grants made by the state must be construed strongly in favor of the grantor, while private grants are construed strongly in favor of the grantee. This certainly trimmed the wings of the College case de cision as Story vigorously argued in sixtysix pages of dissent. You say that in State Bank of Ohio v. Knoop and Washington University v. Rouse, "the Supreme Court held, in effect, that a state cannot by charter deprive itself forever of the power of taxation." The court ex pressly held just the opposite doctrine. In the former case the period of exemption was limited by the charter; but in the latter case there was no time limit, and the court held that there was "permanent exemption from taxation." You say: "The repeal of obnoxious charters must be effected by judicial decision rather than by legislative enactment." Can you point out a court which has claimed or ex ercised the power to repeal charter contracts while the grantees of the charter keep their part of the contract? This would be judicial law-making with a vengeance.

You state that in America "the power to repeal and amend corporate charters would be exercised only with the most confusing and harmful consequences." You must be aware that for many years a considerable number of our states have had and exercised this power. Will you point out the "confusing and harmful consequences?" New York has this power through constitutional reserva tion of the right of repeal and amendment. Its Court of Appeals does not agree with you as to the results. See 194 N. Y. 221-222. I commend your frankness in admitting that the contract clause of the Constitution was not designed to include grants by the state, and that this decision was one of "the innovations of Marshall on the Constitu tion." Opinions will differ as to this and other innovations being "the expression of the central spirit of the Constitution," and also as to the propriety of following a supposed "central spirit" in opposition to the "design" of specific .provisions. You apparently admit that Marshall was mistaken in stating that Dartmouth College was a private foundation. Indeed, Mr. Shirley has made this too plain for argument. But you conclude that this is irrelevant because "a corporation of a public character may be to some extent and for certain pur poses a private body." You fail to see that Marshall's entire decision is based on a sup posed contract between private donors and the crown. If the donors were not private and if the founder was the crown itself, 'ne basis of the decision falls. Marshall said: "It is a contract, on the faith of which, real and personal estate has been conveyed to the corporation. It is then a contract within