police power in so far as it prevents the attendance of members of the two races at the same time and in the same place. Berea College v. Commonwealth, 94 S. W. Rep. 623 (Ky.). That reasonableness is the test in determining the validity of statutes passed in the exercise of the police power is well established. See 17 HARV. L. REV. 275. Many statutes aimed at accomplishing the separation of the white and colored races in several relations in life have been held constitutional on this ground. Thus intermarriage between the races is forbidden in several states. Ex parte Hobbs, 1 Woods (U. S. C. C.) 537 ; State v. Gibson, 36 Ind. 389 Statutes have also made it unlawful for members of one race to travel in railway compartments provided for the other, or for railway companies to fail to provide separate compartments. Plessy v. Ferguson, 163 U. S. 537. Similarly, separation of the races in the public schools has been permitted. Cisco v. School Board, 161 N. Y. 598. In the present case the court bases its judgment on the same argument used to support the statutes just referred to, namely, the reasonableness of preventing relations which might lead to intermarriage and to breaches of the peace, but, as the present statute extends to private institutions, the decision apparently goes further than in any previous case, and probably reaches the limit. RIGHT OF PRIVACY-INFRINGEMENT UNAUTHORIZED PUBLICATION OF PORTRAIT. Post cards illustrating imaginary scenes in the life of the plaintiff, including views of herself, were published and sold without her consent and against her objections. She applied for an injunction to restrain the sale of the post cards. Held, that the plaintiff has established no right to restrain the publication. Corelli v. Wall, 22 T. L. R. 532 (Eng., Ch. D., May 10, 1906). The English law has refused to restrain the unauthorized use of a name for advertising. Dockrell v. Dougall, 78 L. T. 840. But the right of a private person to restrain the unauthorized publication of a portrait of himself has been left undetermined. See Monson v. Tussauds, [1894] 1 Q. B. 671. The present decision, however, seems to settle the English law for the present against allowing such restraint, thus differing from the latest decision in this country. See 18 HARV. L. Rev. 625. ΤΑΧΑΤΙΟΝ TAX ON SUCCESSION TO PROPERTY BY BEQUEST - ASSIGNMENT OF LEGACY BY COLLATERAL LEGATEE. - A testator having bequeathed his residuary estate to persons who were also recipients of general legacies, the heir at law and next of kin prepared to contest the will. A compromise was effected whereby, in consideration of an assignment by the legatees of their residuary interest in the estate, the heir at law and next of kin consented that the will should be admitted to probate. Held, that the succession tax should be assessed at the same rate as if the residuary legacy had originally been to the next of kin and heir at law. In re Cook's Estate, 99 N. Y. Supp. 1049. The court seeks support for this decision in a previous New York case. Matter of Wolfe, 89 App. Div. 349, affirmed in 179 N. Y. 599. But that case decided merely that when the original legatees, subject to the higher tax rate, refused to accept the legacy, thus allowing it to fall into the general residue and pass as part thereof, it should be taxed at the lower rate provided for the succession which actually took place. As a legatee may of course refuse a legacy, that decision was manifestly correct. But in the principal case there was no refusal, and by the terms of the will, as finally probated, the legacy went to the original collateral legatees, passing from them only by their assignment. It seems a substantial injustice to the state that its rights should thereby be defeated. A Pennsylvania case is directly in accord with the present decision. Pepper's Estate, 159 Pa St. 508; see Frank's Estate, 9 Pa. Co. Ct. 662. On principle, however, supported by some authority, the case seems clearly wrong. Harrison v. Johnston, 109 Tenn. 245. TRUSTS - POWERS OF TRUSTee - Power to Give a LeaSE WHICH MAY EXTEND BEYOND THE TRUST TERM. A trustee under a will devising realty to her with power to sell, and further providing that if the trustee made no sale the property on her death should go to a third party with power to sell, leased the land to the plaintiffs for a term of years. The plaintiffs entered and improved the property. The trustee died before the expiration of the term, and the third party sold to the defendants, who had notice of the lease. The defend. ants brought summary proceedings, and the plaintiffs sought an injunction. Held, that the relief should be granted. Butler v. Topkis, 63 Atl. Rep. 646 (Del., Ch.). Generally a power to sell does not by implication include a power to lease. Waldron v. Chasteney, 2 Blatchf. (U. S. C. C.) 62. But where the land is vested in trustees, with the intention that they shall raise an income therefrom, a power to lease may be implied where it is reasonable and necessary. Fitzpatrick v. Waring, 11 L. R. Ir. 35; Hutcheson v. Hodnett, 115 Ga. 990. A lease, however, or a covenant of renewal, will generally not be upheld for a term greater than the life of the trust estate. Bergengren v. Aldrich, 139 Mass. 259; Gomez v. Gomez, 81 Hun (N. Y.) 566. Yet in a few instances the courts have sustained such a lease where the life of the trust estate was indeterminate. Greason v. Keteltas, 17 N. Y. 491. In the case at hand the power to sell seems to be permissive only; a lease, therefore, cannot be said to be in conflict therewith. It seems clearly a case where equity in the exercise of its discretion should favor a lessee who in good faith has made improvements, as against a purchaser, with notice of the lease, from the remainderman. WILLS REVOCATION - EFFECT OF REVOCATORY WORDS ON BACK OF WILL. After the testator's death there was found on the back of his will a signed, but unwitnessed, statement that it was revoked. Held, that under the New York statute which permits revocation by burning, tearing, cancelling, obliterating, or destroying, this does not amount to cancellation of the instrument. Matter of Miller, 50 N. Y. Misc. 70. The majority of cases in this country hold that the writing of a revocation is not effectual as a cancellation unless it cancels some material part of the writing in the will. Howard v. Hunter, 115 Ga. 357. Accordingly, words of revocation in the margin of the will have been held not enough. Lewis v. Lewis, 2 Watts & S. (Pa.) 455. This is true, even though these words slightly touch a part of the writing in the will, provided that part is immaterial. Matter of Akers, 74 N. Y. App. Div. 461; Oetjen v. Oetjen, 115 Ga. 1004. In Vermont, however, revocatory words have been held effective as a cancellation when written on the back of the page containing the material parts of the will. Warner v. Warner's Estate, 37 Vt. 356. Such a decision might possibly be reconciled with the main body of authority by the consideration that the words were written upon a part of the paper that could not be detached so as to leave the material matter intact. See Will of Mary Ladd, 60 Wis. 187. But the present decision, which is squarely contrary to the Vermont case, adopts what is probably the soundest construction of statutes similar to that in New York by requiring that the revocatory words be actually written over a material part of the will. WITNESSES PRIVILEGE AGAINST SELF-CRIMINATION CONSTRUCTION OF STATUTE. - A Wisconsin statute provided that a witness under certain circumstances should not be excused from testifying on the ground that his testimony might tend to criminate him, but that he should not be prosecuted on account of anything concerning which he might testify. Held, that the statute is no broader than the constitutional guaranty against self-crimination, and therefore gives no immunity for testimony not in fact self-criminatory, or for testimony not given under compulsion. State v. Murphy, 107 N. W. Rep. 470 (Wis.). See NOTES, p. 61. BOOKS AND PERIODICALS. I. LEADING LEGAL ARTICLES. CONSTITUTIONAL LIMITS OF the Control BY THE STATE OVER MUNICIPAL CORPORATIONS. The power of the legislature to alter or abolish a municipal corporation, and the effect of such alteration and abolition on the liabilities of the corporation and the rights of third parties are the occasion for an interesting article in the Virginia Law Register. The Rights of Creditors of a Municipal Corporation when the State has Passed a Law to Abolish or Alter It, by Richard W. Flournoy, Jr., 12 Va. L. Reg. 175 (July, 1906). The subject is treated under three heads: 1. where one or more new corporations are created in place of the old; 2. where a municipal corporation is abolished by act of the legislature, and its territory and inhabitants remanded to the government of the state, no adequate provision being made for the payment of creditors of the defunct municipality; 3. where the original municipality remains in existence, but a part of its territory and population is taken away and formed into a new municipal corporation. In regard to the first proposition the writer holds the view that the new corporation will be liable for the debts of the old in proportion to the amount of property taken over. This opinion seems well established by authority. See Mount Pleasant v. Beckwith, 100 U. S. 514; Mobile v. Watson, 116 U. S. 289. The doctrine must be supported on broad grounds of public policy and equity rather than on any technical rules. Under the third head the writer's view that where the original municipality is shorn of a part of its territory, the old and the new corporations should bear the burden of indebtedness proportionately to the amount of territory and population taken away and retained, seems in accord with the same sound views. The law, as is admitted, appears to be the other way, but has apparently not been tested in an extreme case. 66 In regard to the second proposition it is maintained that the law is apparently "that a state legislature cannot, under the constitution, abolish a municipal corporation without either making adequate provision for the payment of its debts, or else creating another municipality in its place." The argument against such legislative action is that it violates the provision of the federal constitution that no state shall pass any law impairing the obligation of contracts. This would be so if abolishing the municipal charter abolished the debt, but it has been distinctly held that this is not so. The debt remains in force, and if later the old municipality is reincorporated or embodied within the limits of one already existing, the creditor may sue such new municipality and the time elapsing during the interval cannot be used against him as a defense under the Statute of Limitations. See Broadfoot v. City of Fayetteville, 32 S. E. Rep. 804, 808 (Tenn.). The writer accepts the proposition that if a new corporation is later created, the creditor may sue that; but it is hard to see, if the law abolishing the old corporation was unconstitutional, how a later act re-establishing the municipality cures the defect in the first. The second act presupposes the constitutionality of the first. Many of the cases which the author cites do not support his proposition. For instance, the case of Wolff v. New Orleans (103 U. S. 358) is not a case where the state attempted to abolish a city charter at all, but where, without doing so, it attempted to curtail the taxing power of the city, whereby the security of the bondholders was diminished. As has been intimated, the doctrine worked out by the writer is not necessary to protect the rights of the creditor, for a reincorporation will usually take place. Even if no new corporation were formed, the aid of equity might be invoked to form a taxing district within the limits of the old. A recent case allowed mandamus proceedings after the abolition of a township to compel the auditor and treasurer of the county to collect the taxes for the benefit of the creditors. See Graham v. Folsom, 200 U. S. 248. With these safeguards for the rights of the creditor, it seems hardly advisable to put the sharp limitation which is advocated on the control of the legislature over the municipal corporation which it has created. THE METAPHYSICAL NATURE OF A CORPORATION IN THE EYE OF the LAW. From the point of view of the man in the street a corporation is obviously a fiction. But this does not settle whether it is a fiction or a reality in the eye of the law. In a recent English article Mr. E. Hilton Young has given an interesting discussion of the question, in which he contends that while in theory a corporation exists only in the contemplation of the law which creates it, in practice it has become a real legal being apart therefrom. The Legal Personality of a Foreign Corporation, 22 L. Quar. Rev. 178 (April, 1906). His argument is, in brief, that a foreign corporation in theory does not exist outside of the sovereignty which creates it. Yet the courts of other sovereignties permit it to sue as plaintiff, and obtain personal jurisdiction of it as defendant. A court cannot obtain personal jurisdiction of that which in the eye of the law does not exist. Consequently, whatever the theory may be, for practical purposes a foreign corporation is a real legal being. While the American authorities are in confusion, the general result seems to be a similar conflict between theory and practice. Indeed the seeds of it are found in Chief Justice Marshall's definition of a corporation as 66 an artificial being... existing only in contemplation of law." See Dartmouth College v. Woodward, 4 Wheat. (U. S.) 518, 636. This definition has been approved by the weight of American authority. But metaphysically it seems to involve a contradiction. A being ex hypothesi exists. A "being" which at the same time exists and does not exist is certainly a peculiar metaphysical concept. Yet this is precisely the result reached by the cases. In theory a corporation in the jurisdiction which creates it is essentially a legal entity, apart from the individual stockholders composing it. The word "person in a statute has been held sufficiently to describe it. See People v. Utica Ins. Co., 15 Johns. (N. Y.) 358. For purposes of federal jurisdiction it has been held to be a "citizen" of the state which creates it. See Nashua & Lowell R. R. Corp. v. Boston & Lowell R. R. Corp., 136 U. S. 356. And yet courts of equity may rarely, where justice requires it, look behind the legal entity to the individual stockholders. See Moore & Handley Hardware Co. v. Tower Hardware Co., 87 Ala. 206. A corporation, then, is generally regarded as existing in the state which creates it. But it is equally well settled that since a corporation exists only in contemplation of the law it has no legal existence outside the state where that law operates. See Augusta Bank v. Earle, 13 Pet. (U. S.) 519, 588. Nevertheless, under the proper circumstances it may contract in another state by means of agents, and the courts thereof may by comity treat it as existent and permit it to sue on the contract. See Augusta Bank v. Earle, supra. But a foreign corporation may equally commit a tort or a nuisance. See Austin v. N. Y. & E. R. R., 25 N. J. Law 381; Seattle Gas & Electric Co. v. Citizens L. & P. Co, 123 Fed. Rep. 588. Comity, however, cannot give jurisdiction of a nonexistent corporation when those aggrieved desire to serve it. Consequently, in the absence of statute, it is impossible to bring action in personam against a foreign corporation. See Middlebrooks v. Springfield Ins. Co., 14 Conn. 301. In the absence of statute, therefore, it can act, but cannot be brought to account. But a corporation, though a "citizen" of its own state for purposes of jurisdiction, is not a "citizen" within the meaning of article 4, § 2 of the United States Constitution, which declares that "the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states." See Ducat v. City of Chicago, 48 Ill. 172. Consequently a state may lay down the conditions under which a foreign corporation may do business therein. See Paul v. Virginia, 8 Wall. (U. S.) 168. Most of our states have therefore passed statutes compelling foreign corporations which do business within the state to The submit to the jurisdiction of the courts. See 6 THOMP., CORP., § 7991. total result apparently is that a corporation exists within its own state in theory, but not always in practice; while in a foreign state it does not exist in theory, although in practice it is often treated as if it did. Metaphysically, therefore, it seems very like a non-existent being. ABUSED PRIVILEGE, AN. W. A. Purrington. Maintaining that the privilege accorded a physician of not testifying is greatly abused. 6 Columbia L. Rev. 388. ASPECTS OF FORGED TRANSFERS OF STOCK, SOME. Lee M. Friedman. Disagreeing with a recent decision of the House of Lords, Sheffield Corporation v. Barclay, [1905] A. C. 392. 40 Am. L. Rev. 496. BASIS OF CASE LAW. I. A. H. F. Lefroy. Treating of the basis of case law when there is no previously established legal principle to govern the case. 22 L. Quar. Rev. 293. CALVO AND THE "CALVO DOCTRINE." Percy Bordwell. Non-payment of public debts as warrant for armed intervention. 18 Green Bag 377. CAN STOCK WITH EXCLUSIVE VOTING POWER BE TREATED AS A TRUST? Robert Rentoul Reed. 18 Green Bag 383. CAN THE UNAUTHORIZED ACT OF AN AGENT BE RATIFIED BY THE PRINCIPAL AFTER THE THIRD PARTY HAS RECEDED FROM THE CONTRACT? Wilmer T. Fox. Contending that such ratification should not be allowed. 62 Cent. L. J. 338. CASE OF THE BRIG GENERAL ARMSTRONG, THE. Charles Noble Gregory. 18 Green Bag 331. CLOSED SHOP CONTROVERSY, THE. Charles R. Darling. 18 Green Bag 339. See 19 HARV. L. REV. 368. COMPULSORY EXHIBITION BY PLAINTIFF in PersonaL INJURY SUITS. Thomas Hall EVIDENCE STATUTES THAT ILLINOIS OUGHT TO HAVE, SOME. John H. Wigmore. EXCHANGE OF STOCK FOR CAPITALIZED PROFITS. H. S. Richards. 526. Mich. L. Rev. GREAT USURPATION, THE. William Trickett. Attacking the authority of the courts to pass upon the constitutionality of legislation. 40 Am. L. Rev. 356. INDIVIDUALISM OF THE CONSTITUTION, THE. Andrew Alexander Bruce. Discussing the holdings of the Supreme Court of the United States as to the constitutionality of local regulations of contracts. 62 Cent. L. J. 377. IS ONE CLAIMING TITLE UNDER A QUITCLAIM DEED A BONA FIDE PURCHASER ? Green Bag 392. Frederick T. Case. 18 JURY TRIAL AND THE FEDERAL CONSTITUTION. William Cullen Dennis. Arguing that the federal constitution does not require jury trials. 6 Columbia L. Rev. 423. LAW OF ENGLAND AS REGARDS MARRIED WOMEN'S CONTRACTS, AND THE POWER OF A WIFE TO BIND HER HUSBAND TO HER CONTRACTS, THE. I. G. Addison Smith. Briefly stating the authorities. 14 Scots L. T. 35. 22 LEGAL CONCEPTIONS FROM A PRACTICAL POINT OF VIEW. James Edward Hogg. LEGAL PERSONALITY OF A FOREIGN CORPORATION, THE. E. Hilton Young. 22 L. LEGITIMACY OF " BUSINESS METHODS IN THE LAW, THE. Raymond D. Thurber. A consideration of the restrictions placed upon lawyers in their efforts to secure cases by the statutes on champerty. 5 Bench & Bar 51. LIMITATIONS UNDER WHICH A PUBLIC SERVICE COMPANY MUST CONDUCT AN INDEPENDENT BUSINESS. Bruce Wyman. 18 Green Bag 290. MAN AND HIS NAME, A. Bernard Č. Steiner. Collecting the authorities. 15 Yale L. J. 341. |