Originally banking in all its branches was a common-law privilege, as we have stated. The fearful evils of unrestrained banking in its branch of issuing notes caused the privilege to be curtailed. The New York statute forbade all kinds of private banking, and restricted the right to associations authorized by the state. The power of the legislature to do this was challenged in the case of Attorney-General v. Utica Ins. Co., 15 Johns. 358, in an ingenious argument by T. A. Emmett. But his argument was wholly unsound in his case because he was arguing for a corporation, whose rights and privileges were not those of individuals, but simply what the legislature granted it. The court held that, while banking was a common-law right, it had become a franchise under the statute. This ruling was necessary to the case, which was quo warranto. It should be noted that in the New York constitution in force in 1818, when this case was decided, there was no clause against depriving a person of life, liberty or prop« erty without due process of law. That was first inserted in the constitution of 1822. The clause in the federal constitution l was binding, of course, only on the general government, and the court assumed the power of the legislature by analogy to the action of the English parliament. But this case seems to have settled the law in New York, and the question was not raised under the new constitution. The case of Bank of Augusta v. Earle, 13 Pet. 519, admitted the right of the legislature to make issuing notes a franchise, but seems to doubt the right to make other branches of banking a franchise. But since the court was dealing with a cor-poration's rights in that case, the statement would have been dictum. The two earlier Alabama cases seem to have assumed the right of the legislature to make all banking a franchise.2 The point at last came before the supreme court of North Dakota, and that court, in an opinion not very well considered, held that the state legislature could prohibit all private banking;3 but a little later the supreme court of South Dakota held such an act to be unconstitutional.4 Other states will probably settle the question for themselves in the near future. The supreme court of the United States will also be required to pass upon the question under the fourteenth amendment. If that court should decide against the legislative right, the question will be completely settled for the whole United States as to any law subsequent to the fourteenth amendment. But should it hold in favor of the right, it is perfectly possible that some states will, nevertheless, hold that such an act would be repugnant to the state constitution, which decision as to that point would be final for that state.

2 Myers v. Irvine, 2 S. & R. 368. 3 State v. Woodmansee, 1 N. D. 246; State v. Stebbins, 1 Stew. (Ala)

299; Attorney-General v. Utica Ins. Co., 15 John. 358.

1 Fifth Amendment to the Federal Constitution.