EDITORIAL DEPARTMENT by discriminating nor exceeding the reason able requirements of the case." . . . "It is now well settled that, subject to the limitations above noticed, the state may ex ercise general control over the incidents of interstate and foreign commerce in the in terest of public health and order. And the distinction between the plenary power of the state to control the incidents of that com merce and its lack of power to directly regu late the commerce is clearly indicated and sharply defined in the well settled contrasting principles that from the absence of Congres sional legislation a presumption arises against the power of the state to legislate for the direct regulation of commerce, but in favor of its power to legislate for the indirect regula tion thereof by regulation of its incidents." From a summary of decided cases he shows that "at the passage of the Sherman AntiTrust Act in 1890 the difference between the direct and the indirect regulation of inter state and foreign commerce by the states had been well worked out by the Supreme Court, and it had been settled by decision upon de cision, from Marshall's time down, that the indirect effect upon that commerce proceeding from the regulation of its incidents by the states was not obnoxious to the Constitution, provided the regulation was reasonable and not discriminative, however great that effect might be. It was not the degree of the effect, but the nature of the regulation which de termined whether the state law was valid or invalid. After the passage of the Sherman Act the Supreme Court at once perceived the relation of this principle to the analogous question, whether only direct or also indirect and incidental restraint of that commerce was obnoxious to the act; and it was decided upon reference to the cases which had sus tained the power of the states to indirectly regulate commerce, and was settled as decis ively as the Supreme Court can settle any thing, that only such contracts and combina tions as directly, and not such as indirectly, restrained commerce were obnoxious to the act. In these cases the Supreme Court no where indicates that it gives any peculiar, or technical, or constructive meaning to the terms ' direct restraint ' and 'indirect restraint." On the contrary, it is evident that these
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terms are used in their ordinary sense. That is direct or indirect restraint in law which is the one or the other in fact, according to the practical understanding and experience of men. In this state of the law the Northern Securities case reached the Supreme Court. It presented a clear example of restraint which was not direct in fact, a case wherein there was absence of any restraint and the presence only of a power to restrain, not ex ercised or threatened to be exercised. And the court, departing from the .principles of eighty years, held the mere power to restrain to be actual direct restraint, — by some sin gular process of reasoning, not logical, holding that which was indirect restraint in fact to be direct restraint in law. Whether a de cision so at variance with the court's past holdings will prove of permanent importance in the development of the law or will be rather distinguished and whittled down until it is found to settle nothing, cannot yet be told. But it was a grave departure from the long line of prior decisions which uphold as well local autonomy as national power and justify the alarm with which it was received."
CONSTITUTIONAL LAW (Obligation of Contracts. Corporations) « THE treatise by Horace Stern on "The Limitations of the Power of a State under a Reserved Right to Amend or Repeal Charters of Incorporation" is concluded in the March American Law Register (V. liii, p. 145). This chapter treats of "the corporation and third persons" of whose relations he says: "Two propositions have been advanced by the courts with general uniformity: "First. The mere fact that the state has reserved the right to revoke or alter a charter of incorporation granted by it gives to it no direct power to alter or impair the contracts, entered into between the corporation and third persons. "Second. A corporation which is subject to the reserved power of the state cannot limit the exercise of that power by entering into contracts with third persons. If the state, where no such contract exist, can enact changes in the corporate charter, it can enforce such changes notwithstanding the fact that it may
