Index to Periodicals decisions on the subject, and some of them hold
ing flatly that in the case of estoppel by matter in pais the facts constituting the esto pel need not be pleaded, still these cases are in the minor
ity and are opposed to the great wei ht of author ity.
Even in Connecticut and
ew York, in
which states the doctrine that estoppel may be shown in evidence though not pleaded is strong est, some of the expressions of the courts lead
one to believe that they themselves are not too well satisfied with the doctrine or the reasons given to uphold it." See Liquidated Damages. Federal and State Powers. "Constitutional Limitations upon State Taxation of Foreign Corporations." By William C. Coleman. 11 Columbia Law Review 393 (May). An extended discussion of Western Union Tel. Co. v. Kansas (216 U. S. l) and Pullman Co. v. Kansas (216 U. S. 56), viewed in the light of
previous decisions of the Supreme Court on constitutional limitations. The final conclu sions reached are: — "First, that the Kansas tax was in violation of the Fourteenth Amendment, and to say that it was not would be to announce a doctrine not simply in extension of, but contrary to, all
previous interpretations of that amendment, and to the true rule of constitutional limitations upon the state taxation of foreign corporations. "Second, that the court in basing its opinion, not upon the Fourteenth Amendment, but upon the Commerce Clause, has announced an exten sion of the scope of that clause for which there is clearly not only no precedent, but which is expressly negatived by decisions which have been thought to be unquestioned as bulwarks of our constitutional law. Whether or not it was expedient or economically wise for the court so to extend the scope of the interstate commerce clause is a question entirely apart from our con siderations, which, as asserted at the very begin ning, are exclusively legal. No doubt from other points of view, as Mr. Justice Holmes himself admitted, the tax ‘deserved the reprobation it receives from the majority,‘ but with that we are not here concerned. . . . "Perhaps it is not inaccurate to describe our highest court as a permanent constitutional convention. Who can say but what Hamilton and Marshall, were they interpreting the Con stitution today, would see no error in this most recent construction placed upon the Commerce Clause? But may we not be advancing too rapidly? Can we truthfully say that nullifica tion by indirection is only an imaginary and not a real dan er? Our government is a dual one, and as suc it must remain." "The State's Power over Foreign Corpora tions." By Harold M. Bowman. 9 Michigan Law Review 549 (May). By a striking coincidence, the writer of the ogening article in another law journal discusses t e same subject, reviewing much the same authorities in the course of an extended examina tion of leading cases. Mr. Bowman is inclined, however, to treat the opinions in the Kansas cases more sympathetically, and he analyzes
359
the resulting nullifications of doctrine with greater particularity, reaching the following con clusions:—— “1. Foreign corporations that have become persons within the jurisdiction of the state at least those that, previous to attainment of the status of persons within the jurisdiction of the state, were not subjected to continuing con ditions-—cannot be deprived of any ‘privilege’ guaranteed by the federal Constitution to which domestic corporations of the same class are entitled. . . . “2. Foreign corporations that have become persons within the jurisdiction of the state cannot be deprived of the equal protection of the laws secured by the Fourteenth Amendment. “3. The conditions under which foreign cor porations may become persons within the juris diction of the state have not yet been either precisely defined or indicated but the recent cases indicate that much less is required to make a corporation a person within the jurisdiction of the state than had been assumed. If this is so the effect of the decisions of 1910 is to emanci pate many foreign corporations from the power of the state to impose ‘unconstitutional’ and discriminatory conditions. . . . “4. The efl'ect of the decisions correspond ingly reduces the numbers of corporations that can be said to act or do business in the state without being persons within the jurisdiction of the state. . . . "5. Opinion will be encountered to the effect that the tendency of the recent decisions is to deprive the state of the power to impose ‘uncon stitutional conditions’ subsequent-—as distin guished from conditions amounting to unequal treatment under the equal protection of the laws guaranty-even on such foreign corporations
as are not persons within the jurisdiction of the state.
But desirable as this would seem, it
cannot et be declared on authority. . . . "6. he state still has power to refuse admis sion to foreign corporations. But this may be subject to marked qualification in the future so far as a certain class of foreign cor orations is concerned. If the opinion expresse by justice White in Pullman Co. v. Kansas should become the doctrine of the court it would seem that no foreign corporation engaged in interstate com merce can be denied the right to engage in intrastate commerce, whether or not in its capa city as a corporation engaged in intrastate com merce it is a person within the jurisdiction of the state." General Jurisprudence. "Jurisprudence." By A. H. F. Lefroy, K.C. 27 Law Quarterly Review 180 (Apr.). An article more lucid than acute, which aims "to give a clear meaning to the word ‘ urispru dence.’ " The writer has no fault to nd with Holland's definition of the science. He also accepts Professor Jethro Brown's definition in his "Austininian Theory of Law." The writer suggests that these two definitions reveal the line of distinction between the English and Ger man, or analytical and
historical schools
"that the German school where it deals with the origin of law deals rather with the develo ments of legal systems as a whole, while the
nglish
