the federal constitution," federal police power not being here spoken of. I imagine that the federal police power, which our supreme court has called to the aid of the constitutionality of the "White Slave Act" also is subject' to the specific grants of power found in that constitution.

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§ 11. Discriminations as Between Corporations and Individuals. In a Pennsylvania case, where, as the opinion says: "The single question in this case is the constitutionality of the act of June 24, 1895," in regard to authorizing trustees and others to charge an estate with the reasonable fee paid a company for becoming his surety, the court said: "The objection wholly fails to observe the fundamental distinction between corporations and natural persons. The act of incorporation ‘itself is a discrimination as to privileges, powers and liabilities against the natural person.

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Then after enumerating the various purposes for which corporations may be chartered, the court appeals to its judicial knowledge as to the difference between an individual and a corporate surety so as to justify the charge upon an estate, notwithstanding that no charge could be made where an individual surety is obtained.

It was said: "The individual surety, as formerly known, was usually a relative or a friend who had confidence in the principal and voluntarily assumed the obligation of answering for the latter's faithful performance of duty. I need not speak of the individual who became surety for pay, for the very name of 'professional bail-goer' is a reproach to every branch of the

6. Kansas City Gas Co. v. Kansas City (1912), 198 Fed. 500, 511.

7. Hoke v. U. S. (1913), 227 U. S. 308, 323, 57 L. Ed. 2, 43 L. R. A. (N. S.) 906.

8. Re Clark (1900), 195 Pa. St. 520, 46 Atl. 127, 48 L. R. A. 587.

administration of justice, which he was allowed to contaminate with his presence. But the voluntary surety, however honest and well qualified at the time of his approval by the court, is liable to the contingencies of business, the changes of value in property, and the inexorable chance of death, which brings his estate into the administration of the law under wholly changed circumstances. Of the happening of any of these contingencies, the only person in position to keep close watch is the principal, and his interest is averse to making known any doubt as to the sufficiency of his friend, or to assume the burden of finding a new surety. * * On the other hand, the surety company * * * must have a capital, the amount, nature of investment and management of which are known and within constant sight of the court and parties interested. *** It is on this difference that the discrimination in the act of 1895 is founded and it is a fair and constitutional basis for the legislative discretion."

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The court deemed this ruling well within the principle previously declared in that court, that the legislature lawfully might confine the insurance business to corporations, though to my mind it is an extension of the former ruling in that it directly authorizes the levying of a charge on private property of a third person which the former decision does not do. Both of them, however, come under the police power of the State. This police power was thought to be exemplified, "in view of the magnitude and the nature of the insurance business," making it "apparent that the public is interested in all that relates to it." It was further said that: "Pri

8. Com. v. Vrooman (1894), 164 Pa. 306, 30 Atl. 217, 44 Am. St Rep. 603, 25 L. R. A. 250.

vate individuals are not subject to the same visitorial powers" as corporations. "They cannot ordinarly be compelled to disclose their business methods, their financial condition or the character of their investments. They cannot be restricted in the use of either their capital or their profits as corporations may be. Those who deal with them must trust more to their personal integrity than common experience shows to be safe. The state can compel a fair measure of fidelity in the management of these vast sums, and provide for the safety of the insured when, and only when, the business is in the hands of corporations.". That the Pennsylvania court is correct insofar as it declares the business of insurance juris publici and subject to governmental regulation, has since been declared by our Federal Supreme Court, to which there was dissent by three of the eight members sitting, the dissent going mainly on the proposition that regulation did not extend to fixing rates. There was no question here of the right of an individual to carry on such a business if statute attempted to confine it to corporations.

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At all events, these two Pennsylvania cases tend to show that corporations may be given the exclusive right to carry on business affected by a public interest, and that as the business is so affected, they may authorize corporations to charge the estates of minors, decedents and cestuis que trust in relation thereto, though private persons may be allowed to execute the same trusts.

The United States Supreme Court has held that a

10. German Alliance Ins. Co. v. Lewis (1914), 233 U. S. 389, 58 L. Ed. 1011.

state might provide "that no banking business should be done except by corporations."10%

In Kentucky discrimination between corporations and individuals has been adjudged valid in a statute requiring individuals as assignees in conveyances for the benefit of creditors to take an oath and give bond and merely requiring that the capital of a corporation "shall be taken and considered as the only security" necessary.' The same question was again considered in the case of a statutory trust company appointed a guardian of a minor,12 and the court said:

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"If it be constitutional for the Legislature to confer upon this corporation the power to act as statutory guardian, and we think it is constitutional, it follows that the legislature has the power to prescribe the terms upon which it may act as such guardian."

In Wisconsin, in answer to the claim of unjust discrimination in favor of a corporation and as against private individuals to act as assignees without bond, the court said: "The fact that it gives no bond except in the discretion of the court, but gives security by depositing securities with the state treasury, cannot be considered as unjust discrimination. Such reasoning would invalidate many just and statutory laws. The question is one of legislative policy."

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In a Minnesota case" the point was directly made that the general law, under which the trust company party was incorporated, gave special and exclusive

102. Assarie State Bank v. Dolley (1911), 219 U. S. 121, 55 L. ed. 123; see also Weed v. Bergh (1910), 141 Wis. 569, 124 N. W. 664, 25 L. R. A. (N. S.) 1217; contra Marymount v. Nevada State Banking Board (1910), 33 Nev. 333, 111 Pac. 295.

11. Bank of Commerce v. Payne (1887), 86 Ky. 446, 8 S. W. 856. 12. Johnson v. Johnson (1889), 88 Ky. 275, 11 S. W. 5.

13. Roane Iron Co. v. Wisconsin Trust Co. (1898), 97 Wis. 273, 74 N. W. 818.

14. Minnesota Loan and Trust Co. v. Beebe (1889), 40 Minn. 7, 41 N. W. 232, 2 L. R. A. 418.

privileges was noted but apparently was little noticed. The court, indeed, seems not to have understood the nature of the objection. It is recited that in many of the states, particularly the older ones, the trust company “is fast becoming the favorite method of administering estates and executing trusts."

It is to be noticed, generally, that the objection upon which this grant of exclusive right as against an individual to act in a fiduciary capacity has turned not upon the competency of legislatures to endow a corporation with such right, but rather upon the frame of legislation under which the power has been conferred. This has excused them wholly, or in the discretion of the court, from the giving of bond with sureties for the faithful performance of the trust reposed in them. And the courts generally have overruled the objection upon the grounds that the visitorial power of the state and requiring deposit of securities virtually take the place of sureties given by individuals in like instances. In addition it is said there is more of stability in this than in personal sureties, all of which constitutes a basis for rational discrimination under constitutional restrictions.

At all events legislation along this line appears too fully recognized in this country for courts to stop to listen to objections of this nature, coming as it does under police power, and especially as it concerns rights in the devolution of estates, which at best are but privileges under statutes of descents and distribution. It is to be noted that these objections apply only to appointment of executors, administrators, guardians, committees and assignees, all of which are of statutory origin and creation and to such offices there is no personal privilege other than as defined by the