EDITORIAL DEPARTMENT a general familiar recognition of the fact that — with sotne slight qualifications not necessary to be dealt with here — this vast and all-im portant field is, and can be occupied and con trolled by no government at all, except in so far as it is or shall be occupied by the national government." Sixth. "Congress, when it adopts a rule of public policy, can apply it in any field of national action. Such is the only possible con clusion from the Lottery Case. It follows, that Congress, if it should adopt a public policy adverse to the present heterogeneous system of large rival state-chartered corporations, warring among themselves, could, without re sort to the interstate commerce clause, exclude state-chartered corporations, or such types of them as it might deem obnoxious to public policy, from the mails, and from periodicals carried in the mails; from the holding of patent rights; from the national banks; from admiralty waters, including the great navigable rivers and the Great Lakes; and from the other agencies and fields of government influence or action." Some of the difficulties urged by opponents of national incorporation the author meets as follows: 1. It would not be necessary to dissolve existing state corporations. The transforma tion of state into national banks suggests an appropriate method. 2. A national corporation could do local business as an incident to its interstate busi ness. 3. If manufacturing is too important an element to be regarded as an incident of the power of sale, dual incorporation at the most would meet the difficulty. 4. Holding corporations are in their very essentials in conflict with the general law of corporations and should be abolished rather than perpetuated. 5. The existing property rights of state cor porations need no more be disturbed than -were those of the state banks in the sixties. 6. The right of way of railroads held under the state's power of eminent domain can, if necessary, be retaken under the national power incident to the power to establish post roads without further compensation to the original owners.
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7. The federal license applied to corpora tions would be workable and, as a preventive, more efficient than the enactment of penalties for past wrong-doing. CONSTITUTIONAL LAW (History. Right of Courts to Declare Legislation Unconstitutional) IN the June Yale Law Journal (V. xiv, p. 431) Gordon E. Sherman, in an article entitled "The case of John Chandler v. The Secretary of War," discusses the early history of decisions by the courts that acts of the legislature are void because in conflict with the Constitution. The case which is the title of the article, though generally overlooked, is the earliest decision of the Supreme Court of the United States which passed upon this question, and it, rather than Marbury v. Madi son, should be deemed the source of the mod ern doctrine. The author also considers the early English cases holding town by-laws invalid as-in conflict with the charter, and col lects interesting instances of analogous situ ations in other countries of ancient and mod ern Europe. CONSTITUTIONAL LAW (Interstate Commerce. Rate Regulation) A VERY important contribution to the dis cussion of the problem of railroad regulation is given by Victor Morawetz in the June Harvard Law Review (V. xviii, p. 572) in an article entitled "Congressional Railway Reg ulation." The author lays down at the outset the following propositions. "i . Unreasonably high rates are illegal. A public carrier is prohibited by the common law from making any unreasonably high charge, and this common law prohibition has been reinforced by the Interstate Commerce Act as to all interstate rates of railway com panies. Congress has also strictly prohibited interstate carriers from making any unjust discrimination of any kind. These statutory prohibitions undoubtedly are constitutional and valid." "2. The states have power to regulate do mestic rates." "y. Congress has power to regulate inter state rates, but the power is not necessarily co extensive with the power of the states to regu late charges in respect of domestic transporta
