UNIVERS/ —n CONSTITUTIONAL LAW JAMES PARKER HALL, A. B., LL. B. Professor of Law and Dean of Law School, University of Chicago 3S3G1 PUBLISHED BY Lasalle extension university CHICAGO 1922 This volume is one in a series entitled AMERICAN LAW AND PROCEDURE COPYRIGHT, 1910, 1911. 1913, 1915, 1920, 1921 LaSalle extf.nsiom university H IV CONTENTS CONSTITUTIONAL LAW. PART I. GENERAL CONCEPTIONS. CHAPTER I. Preliminary Topics. SECTION 1. Nature of American Constitutional Law. § 1. Modern constitutional government 1 § 2. What is a constitution 3 § 3. The English constitution and Parliament 3 § 4. Differences between written and unwritten constitutions.. 4 § 5. Written constitutions in America 5 § 6. Outline of American constitutional history before 1789. ... 6 SECTION 2. Making and Changing American Constitutions. § 7. Earliest American state constitutions 8 § 8. Constitution of Massachusetts 9 § 9. The Articles of Confederation 10 § 10, Adoption of the United States Constitution 11 § 11. Modes of amending constitutions 12 § 12. Same: Where constitution contains no express provision. . 13 § 13. Same: Where constitution provides a non-exclusive mode of amendment 14 § 14. Same : Exclusive mode of amendment expressly provided . . 14 § 15. Peaceful revolutions 14 § 16. Amendment of Federal Constitution 15 SECTION 3. Separation of Departments of Government. § 17 General American doctrine 16 § 18 Judicial powers cannot be exercised by legislative and administrative bodies 16 § 19 Same : Further illustrations 17 i u CONTEXTS § 20. Xon-jutlicial powrrs cannot be oonfeiTod on courts 18 ^ 21. Inherent powei-s of departments of pfoveniment 19 § 22. Limitations of greneral doctrine 21 § 23. Siune : Appointment of ofTicei*s — Taxation 21 SECTION 4. The States and The United States. § 24. General theory of state powers 22 § 25. Powers of state governments before 1789 23 § 26. Division of jwwers between state and nation effected by Federal Constitution 25 § 27. Nature of the Federal Government: Of limited powers.. 26 § 23. Same : Supreme in its sphere 27 CHAPTER 11. Function of Judiciary in Enforcing Constitutions. SECTION 1. Power to Declare Laws Unconstitutional. § 29. Departments of government 29 § 30. Power to declare laws unconstitutional. Where does it reside 29 § 31. Same : European doctrine 29 § 32. Same : English doctrine 31 § 33. Colonial practice — Its influence 32 § 34. Early American decisions 33 § 35. Decision under Federal Constitution: Marbui-y v. Madison 34 § 36. Reasons for the doctrine 35 SECTION 2. Limitations Upon Exercise of Power. § 37. Power is strictly judicial in character 36 § 38. Unconstitutionality should be clear 36 § 39, Same : Judicial declarations to this effect 38 § 40. Exercised only in actual litigation 39 § 41. Power not applicable to political acts 40 § 42. When other departments cannot be compelled to act..... 42 § 43. Laws not invalid merely because unwise 43 § 44. Administrative regulations of the power 44 SECTION 3. Effect of an Unconstitutional Act. § 45. In general — Incidental effect 46 § 46. Effect of partial unconstitutionality 47 CONTENTS m SECTION 4. Advisory Opinions. § 47. Nature and effect of advisory opinions 48 PART II. FUNDAMENTAL RIGHTS. CHAPTER III. History and Scope of Fundamental Constitutional Rights. SECTION 1. Classification of Constitutional Provisions. § 62. Provisions establishing the frame of government 50 § 63. Provisions guaranteeing fundamental private rights 50 § 64. Provisions regulating intergovernmental relations under our Federal system 52 § 65. Provisions regulating government in detail 52 SECTION 2. State and Federal Constitutional Guarantees Before 1865. Early state constitutions and original Federal Constitution. 53 Federal bill of rights — Amendments I to X 53 Federal prohibitions upon the states before 1865 54 SECTION 3. Scope of Later Amendments to Federal Constitution. Thirteenth Amendment 56 Adoption of Fourteenth Amendment 57 Analysis of Fourteenth Amendment 58 Fourteenth Amendment forbids state action only 59 What amounts to sbate action 61 What are privileges and immunities of citizens of United States 62 § 75. Fifteenth Amendment 66 CHAPTER IV. Political Rights. SECTION 1. Citizenship. § 76. Federal citizenship before Fourteenth Amendment 67 § 77. Citizenship by birth under Fourteenth Amendment 68 § 78. Limitations upon citizenship by birth 68 § 79. Meaning of ''bom within the United States" 69 § 80. Persons excluded as not "subject to the jurisdiction".... 70 § 66. § 67. § 68. § 69. § 70. § 71. § 72. § 73. § 74. b CONTEXTS § SI. (a) Children of diplomalip roprcstMitatives 70 ^ S'J. (b) Children bom on foreign public vessels 71 § S3, (c) Children of public enemies in hostile occupation of territory' 71 15 S4. (d) Expatriated persons 72 § So. (e) Tribal Indians 72 § S6. Status of native inhabitants of ceded Spanish colonies.... 73 § 87. Status of corporations 74 SECTION 2. Naturalization. § S8. Exclusive power of Federal Government over national citizenship 74 § 89. Collective naturalization 75 § 90. Power to confer state citizenship 75 SECTION 3. Suffrage. § 91. Early qualifications for state suffrage 76 § 92. Original provisions of Federal Constitution 76 § 93. Constitutional changes affecting suffrage before Fifteenth Amendment 78 § 94. State limitations upon suffrage since Fifteenth Amend- ment 79 § 95. Suffrage not a necessary incident of citizenship 81 § 96. Relation of suffrage limitations to congressional repre- sentation 82 SECTION 4. Miscellaneous Political Rights. § 97. Republican form of government, invasion, and domestic violence 83 § 98. Freedom of speech and press 83 § 99. Right of assemblage and petition 84 §100. Right to bear anns 84 CHAPTER V. Personal and Religious Liberty. §101. Constitutional history of slavery in United States 86 §102. What constitutes slavery? Compulsory service of sailor.. 87 §103. Same: Compulsory service to discharge debt 88 §104. Same : Imprisonment for breach of labor contract .... 89 §1 05. Religious liberty 90 CONTENTS V, CHAPTER VI. Protection to Persons Accused of Crime. §10a Introduction 91 SECTION 1. Bills of Attainder and Ex Post Facto Laws. §107. Bills of attainder 92 §] 08. Ex post facto laws : Eai'ly definition 93 §109. Same : Later definition 94 §110. What is a mitigation of punishment 94 §111. Changes in procedure 95 §112. Retroactive qualifications for a profession 96 §113. Same : Ex post facto if unreasonable 98 SECTION 2. Self-incrimination. §114. General scope of privilege 99 §115. Purely personal 100 §116. Protects only against criminal prosecution 100 §117. Secures immunity only in the immediate jurisdiction 101 SECTION 3. Unreasonable Searches and Seizures. §118. General scope of privilege 101 §119. Extends to the mails 102 §120. Forbids general warrants 103 SECTION 4, Juries. §121. Definition of a trial jury 104 §122. Constitutional function of judge in jury trials 104 §123. Misdemeanors may be tried without jury 105 §124. Diversities of constitutional requirement 105 §125. Grand juries 106 SECTION 5. Miscellaneous Rights. Notice — Witnesses — Counsel 106 Excessive bail and fines 107 Cruel and unusual punishments 107 Double jeopardy 109 vi CONTEXTS CHArTKR VII. Due Process and Equal Protection of Law: Procedure. SECTION 1. Due Process of Law. §130. General requisites of due process in procedure Ill §131. Jurisdiction 112 §132. Any procedure giving notice and fair hearing is valid 113 §133. Procedure according to settled usage is valid 115 §134. Summary destruction of personal property 117 §135. Exercise of legislative power by boards 118 §136. Proper procedure for taxation and eminent domain 119 §137. Procedure in matters over which government has absolute control 121 §138. Judicial tribunal not necessary 122 §139. Kind of notice required 124 §140. Erroneous and fraudulent decisions 125 §141. Denying or hindering access to the courts upon the ques- tion of due process itself 126 §142. Self-incrimination not forbidden — Confronting witnesses not required 128 SECTION 2. Equal Protection of the Laws. §143. Discriminatory exclusion from jury service 129 CHAPTER Vni. Dne Process and Equal Protection of Law: Powers of Regulation — Police Power. SECTION 1. General Conceptions. §144. Fundamental guarantees apply to rights as well as pro- cedure 131 §145. They apply to all departments of government 132 §146. Meaning of liberty - 133 §147. Meaning of deprivation of property 135 §148. Meaning of equal protection of the laws 136 §149. Application of these guarantees to corporations 138 §150. Definition of police power 139 §151. Classification of subjects of police power 140 CONTENTS vii SECTION 2. Regulation of Social Interests. §152. Public health 140 §153. Public morals 141 §154. Public safety 143 §155. Public order and comfort — Esthetics 143 §156. Licensing occupations 144 §157. Domestic relations — Dependent, delinquent, and defective pei-sons 144 SECTIOIJ 3. Economic Interests. §158. In general 145 §159. Protection against fraud 14G §160. Protection against oppression 146 §161. Business affected with a public interest 148 §162. Regulation of corporations 150 §163. Regulation of ownership of property 150 §164. Compelling joint action to improve property 151 §165. Special liabilities due to nature of business 152 ^266. Special liabilities due to natural condition of property. .. .152 §167. Retroactive laws 153 SECTION 4. Administrative Regu lations. §168. In general 155 §169. Illustrations 156 §170. Prima facie rules of evidence 157 CHAPTER IX. Due Process and Equal Protection of Law: Taxation. §171. General requisites 158 SECTION 1. Jurisdiction for Purposes of Taxation. §172. Object taxed must have situs in jurisdiction 158 §173. Real estate and chattels 159 §174. Corporate assets 160 §175. Corporate assets in several states 161 §176. Debts 163 §177. Documentary evidence of debts or property 164 §178. Credits employed in business 165 §179. Shares of stock 166 §180. Franchises 167 ▼iU CONTENTS §181. Situs of property for inheritance taxes 169 §1.S2. Same: Domestic property of resident decedent 170 §183. Same: Foreipn property of resident decedent 170 §!S4. Same: Domestic property of non-resident decedent 171 §183. Foreign property of non-resicient decedent 173 SECTION 2. What is a Public Purpose for Taxation? §1S6. Discharjje of povernmeutal functions 173 §187. Objects not in fact of public benefit 175 §188, Deraoraliziuir public benefits 175 §1S9. Supplying needs for which private enterprise is inadequate. 177 §100. Influence of historical considerations 180 §191. Ta.x exemptions 180 §192. Discharging moral obligations of government 181 §193. Pensions 183 §194. Public charity 183 SECTION 3. Classification of Objects for Taxation. §195. In general 184 §196. General municipal taxation 184 §197. Municipal taxing district may be created for special purpose 185 §198. Illustrations— Limits of doctrine 186 §199. Theorj- of local assessments 188 §200. Same : Exceptions and qualifications 189 §201. Different kinds of taxes 191 §202. Legislative discretion in selecting objects of taxation. .. .192 §203. Same: Limitations 193 §204. Same: Illustrations 195 §205. Progressive taxation 196 §206. Confiscatory taxation 197 CHAPTER X. Due Process and Equal Protection of Law: Eminent Domain. §207. Power of eminent domain and guarantees respecting it. .199 §208. Various interferences with property distinguished from eminent domain 200 §209. What is a public use 201 §210. Same : Illustrations 203 §211. Same : Esthetic purposes 205 §212. Legislative discretion ...205 CONTENTS ix §213. What kind of property may be taken 206 §214. What amounts to a taking of property 207 §215. Physical occupation of property 208 §216. Substantial intrusion of tangible material 209 §217. Noise and pollution of atmosphere 210 §218. Improvement of navigation 211 §219. Changes in public streets 211 §220. What are legitimate public uses of streets 213 §221. Compensation in money 214 §222. Compensation in benefits 216 §223. Preliminary surveys before compensation 216 §224. Liability for damaging property 217 §225. Condemnation proceedings 218 CHAPTER XI. Laws Impairing Obligations of Contracts. Constitutional prohibitions 219 What acts of impairment are forbidden 22(/ What is a contract 221 Same : Grants 222 Same : Corporation charters 224 What is the obligation of a contract 225 Impairment of remedies for breach of contract 227 Same : Municipal bond cases 229 Same : No taxing officers 230 Same : Abolition of indebted municipality 231 Valid changes in remedies 232 Special charter privileges as contracts 233 Qualifications of this doctrine 234 Strict construction of special privileges 235 Special privileges construed non-transferable 237 Certain legislative powers unrestrainable by contract. Regulation of public morals 238 Same : Public health and safety 240 Same: Important administrative and economic interests. .241 Private contracts that affect the public 243 Reserved power of states to repeal corporate charters 244 Protection of property acquired before repeal 245 X CONTENTS §246. F.fTect of stnte bankruptcy laws 246 5246a. Foroipn suit on contract 247 §247. Foreign contracts 248 §243. Laws increasing the obligation of contracts 248 PART III. THE FEDERAL GOVERNMENT. CHAPTER XII. Federal Powers and Their Exercise. §249. General principles of construction: Strict versus liberal.. 249 §250. Implied powers 251 §251. Powers implied from groups of other powers 253 §252. Exclusive and concurrent powers 254 §253. Purjioses for which Federal powers may be exercised. .. .255 §254. Prohibitions upon the exercise of Federal powers 257 §255. Resen-ed powers of the states 257 CHAPTER XIII. Territories, Dependencies, and New States. §256. Cession of western lands to United States 259 §257. Implied powers to annex territory 259 §258. Federal sovereignty in territories 260 §259. Application in territories of constitutional prohibitions. .. .261 §260, Spanish cessions of 1898 — Power to acquire ** unin- corporated" territory 263 §261. Territorial classification of Federal jurisdiction 265 §262. Prohibitions applicable in states and incorporated ter- ritories 266 §263. Judiciary article applies in states only 266 §264. Unincorporated territory 267 §265. Foreign territory temporarily occupied 270 §266. Foreign consular jurisdiction 271 §267. Admission of new states into the Union 271 §268. Can new states be admitted with powers less than those of other states 272 CILVPTER XIV. Regulation of Commerce. §269. Historical outline , 274 SECTION 1. Duties on Imports, Exports, and Tonnage. §270. State duties on imports prohibited 274 CONTENTS ^ §271. What is an import 275 §272. What is a tax on imports 276 §273. Development of the "original package" doctrine 277 §274. Same: How large must an "original package" be 278 §275. State and Federal duties on exports forbidden 280 §276. What is a tax on exports 2^0 §277. State inspection laws .-. 281 §278. State tonnage duties forbidden 282 SECTION 2. Interstate Commerce. — General Conceptions. §279. Commerce clause 283 §280. What is commerce 283 §281. When is commerce interstate 285 §282. Beginning and ending of commercial transit 286 §283. Transit across state border an essential part of trans- action 287 §284. Is Federal power to regulate commerce exclusive 287 SECTION 3. State Legislation Discriminating Against Interstate Commerce. §285. Discriminatory legislation prohibited 289 SECTION 4. State Taxation Affecting Interstate Commerce Without Discrimination. §286. Taxes upon transportation 290 §287. Taxes upon sales 291 §288. Taxes upon property engaged in interstate commerce. .. .292 §289. Taxes as conditions precedent to engaging in interstate commerce 292 §290. Tolls for the use of improvements 293 §291. Taxes upon franchises, and compensation for their grant. 293 §292. Taxes indirectly affecting commerce 295 SECTION 5. State Regulation Affecting Interstate Commerce Without Discrimination. §293. Regulation of transportation : Rates 295 §294. Same : Services 297 §295. Same : Instruments, agents, liability, etc 297 §296. Conditions precedent and prohibitions upon engaging in interstate commerce 297 §297. Same : T jquor prohibition cases 298 §298. Same : Later cases 300 §299. Regulations indirectly affecting interstate commerce 301 Vol. XII— 2— July 22. xii CONTExNTS SECTION 0. Power of Congress over Interstate and Foreign Commerce. §300. Power of Conj^oss complete and paramouut 302 §201. Congressional power to enlarge tlie Held of state action... 304 SECTION 7, The Maritime Power. §302. Extent of jurisdiction 305 §303. Artificial waters 306 §304. Maritime jurisdiclion distinct from commercial power.... 306 §305. Federal jurisdiction is legislative as well as judicial 306 CHAPTER XV. Money and Banking. §306. Constitutional provisions 308 §307. BUls of credit 308 §308. Bank notes 310 §309. Legal tender 311 §310. Government notes as legal tender 312 §311. Same (continued) 314 §312. Present exclusive Federal control of money ,. . .316 CHAPTER XVI. Various Federal Powers. §313. Scope of chapter 317 §314. Federal powers of taxation 317 §315. Limitations on taxation: Uniformity. — Export taxes.... 318 §316. Same: Direct taxes. 318 §317. Same: Taxation of statp governmental functions 319 §318. Bankruptcy 320 §319. "Weights and measures 320 §320. Postal powers 320 §321. Possible extent of postal powers 321 §322. Copyright and patents 321 §323. Maritime offenses and offenses again.st the law of nations. .322 §324. Indians 323 §325. Aliens 324 §326. Federal treaty powers 326 §327. Same : Another view 327 §328. Federal districts within a state 328 §329. Military powers : Constitutional provisions 329 §330. Same; During actual hostilities « 330 CONTENTS xiii §331. MLli<'ary jurisdiction 332 §332. Same: Controverted questions 333 §333. Quartering soldiers in private houses 334 CHAPTER XVII. Intergovernmental Relations. 8334. States in many respects treated as foreign to each other. .335 SECTION 1. Interstate Privileges and Immunities of Citizens. §335. Scope of constitutional provision 335 §336. Enumeration of rights protected 336 §337. Illustrations of forbidden discriminations 338 §338. Valid discriminations : Proprietary rights 338 §339. Same: Procedural rights as affected by domieil 339 §340. Same: Occupational qualifications as affected by domieil.. 341 SECTION 2. Other Interstate Relations. §341. Interstate recognition of public acts, records, and judicial proceedings 342 §342. Interstate extradition and rendition 3i3 §343. Agreements between states 343 SECTION 3. Relations between the United States and the States. §344. Nature of the Union 344 §345. Participation of the states in the Federal govemmnet 345 §346. State interference with Federal functions: Conflicting laws 345 §347. Same: State taxation of Federal agencies or property. .346 §348. Same : Taxation of property of Federal agents. — Taxation remotely affecting Federal functions 346 §349. State interference with private exercise of Federal rights. 347 §350. Federal interference with state functions 348 CHAPTER XVIII. Jurisdiction of the Federal Courts. SECTION 1. In General. §351. Classification of Federal judicial powers 349 §352. Objects of the various judicial powers 350 §353. Power of Congress in organization of Federal courts 351 §354. Present Federal courts 352 riv CONTENTS §355. Original and appellate jurisdiction 353 §356. Exclusive and concurrent jurisdiction 354 §357. Transfer of cases from state to Federal courts: Before trial 354 §358. Same: After trial 356 §359. Federal questions 357 §360. Habeas corpus proceedings 358 §361. Suits between states 359 §362. Suits between states and the United States 360 §363. Diverse citizenship 360 §364. Law applied by Federal courts: No Federal common law 361 §365. Same: Questions of local common law 362 §366. Same: Questions of general or commercial common law.. 363 §367. Same : State statutes 364 SECTION 2. Suits Against States. — Eleventh Amendment. §£68. Political sovereignty not accountable to individuals 365 §369. Chisholm v. Georgia. — Eleventh Amendment 366 §370. Repudiation of state debts 366 §371. Suits between states upon bond debts 367 §372. Suits against municipal eoiporations. — Set-off against state 368 §373. Suits against state by its own citizens 369 §374. Suits against state officers: (a) For illegal official act... 370 §375. Same: (b) To prevent illegal official act 371 §376. Same: (c) To compel official act 372 §377. General principle involved 372 §378. Enjoining suit on behalf of state 373 Appendix A. United States Constitution 376 Appendix B. Questions 393 CONSTITUTIONAL LAW * BT JAMES PARKER HALL» A. B. (Cornell University) ImI*. B. (Harvard University) Professor of Law and Dean of Law School, University of Ohlcagfo PART I. GENERAL CONCEPTIONS. CHAPTER L PRELIMINARY TOPICS. Section 1. Natube of Ameeioan Constitutional Law. § 1. Modern constitutional government. The subject of American Constitutional Law deals with certain large principles intimately connected with modem theories of political self-government. The protection of the indi- vidual in his personal, property, and political rights, at the same time that order is maintained and the welfare * The United States Constitution is printed as Appendix A in this volume. t S CONSTITUTIONAL IjAW of the state conserved, is the aim of modem constitutional government. We are so accustomed to the acceptance of these doctrines that it is difficult to realize how new they are as actual working principles efficiently controlling gov- ernmental action. It is only a little over three hundred years ago that Philip II of Spain condemned to death without trial all of the inhabitants of the Netherlands. It is only two hundred years ago that the court of king's bench in England solemnly affirmed the right of the king at his pleasure to dispense with any penal statute passed by Parliament. In legal theory, at least, the property and persons of the vast majority of the governed were to a considerable extent at the disposal of the governing ma- jority. As a matter of fact, rulers did not usually deal with their subjects with an outrageous disregard of jus- tice, but this was due to the wisdom, the kindness, or the fear of the rulers and not to their obedience to any word of law superior to their wills. The divine right of kings was the dogma at the basis of political theories of the state, tempered though it might be by admissions of moral obligations upon rulers to govern justly. In the brief space of a few hundred years all this has changed. With very few exceptions, every government that now makes any pretension to modern civilization exercises its powers in conformity with the precepts of a body of unwritten custom or written law designed to secure the individual from oppression at the hands of those who are actually in governing positions, or even from the oppression of a ma- jority of his peers. Indeed, the function that brings Amer- ican constitutions most frequently before the courts is GENERAL CONCEPTIONS 3 that of protecting the rights of individuals against the acts of popular legislatures. § 2. What is a constitution? When we think of a con- stitution in America we naturally conceive a written in- strument formally setting forth a frame of government and containing a variety of checks upon governmental action, chiefly upon the legislature. It may seem a little strange to think of constitutions existing in an unwritten as well as a written state. Though it is more or less a matter of definition, the simplest conception of a consti- tution for the government of a state is the body of exist- ing precepts, written or unwritten, designed to control governmental action until modified in some authorized manner. § 3. The English constitution and Parliament. The best example of a country with an unwritten constitution is England. Large volumes have been written about the English constitution, but so far as that constitution is applicable to legislative action it is entirely unwritten. The English Parliament does not confiscate private prop- erty, or condemn men to death without trial, or even im- pair the obligation of existing contracts. Writers on English law say that to do these things would be uncon- stitutional, meaning thereby contrary to the great body of past legislative custom and usage, which forms the standard by which the present is judged. Yet if the Eng- lish Parliament were to do any of these things they would not be illegal, though they might be unconstitutional. Parliament is absolutely supreme in legal theory, and 4 CONSTITUTIONAL LAW whatovor it chooses to enact is legal, is a law, and will be euforced as such by the English courts. Really, Parliament has a double function. It is both the law-making and the constitution-making power of Great Britain. Thus, at present we say it is unconstitu- tional for Parliament to impair the obligation of con- tracts in individual instances — not speaking now of bank- ruptcy laws. If Parliament chose to do this in two or three instances only, we should still say such action was unconstitutional but that there was no way of enforcing the constitution against the will of Parliament. If such parliamentary action became common, we should then have to say that the English constitution had been altered and that to impair the obligations of private contracts was no longer unconstitutional in England. That is, the English constitution, so far as it affects legislative ac- tion, is purely one of customary obligation, and when ad- herence to any part of it is no longer customary, the con- stitution has simply been altered by the authorized Eng- lish method, acts of Parliament approved by the crown. Where the English constitution touches executive ac- tion, it is partly written. Magna Charta is an instance of this. The English Bill of Rights of 1689, placing cer- tain restrictions on the acts of the sovereign, is another. So is the Act of Settlement of 1701, regulating the suc- cession to the crown and the tenure of judges. So are all the various acts of Parliament somewhat permanently regulating the exercise of executive power throughout the British Empire. § 4. Differences between written and unwritten con- GENERAL CONCEPTIONS 5 stitutions. The English unwritten constitution is really just as much a constitution as our written ones. The great difference is in the organ by which constitutional changes may authorizedly be made. In England this organ is Parliament. In the American states it is usually a constitutional convention whose proceedings must gen- erally be ratified by popular vote. For the United States Constitution it is the joint action of three-quarters of the states acting through legislatures or conventions (1). On the continent of Europe it is often the legislative bodies of the state acting together by a two-thirds or three-quar- ters vote, and perhaps also requiring the assent of the executive or the people. The legal effect of the various modes of amending American constitutions we shall consider later. Two im- portant consequences have grown out of the differences between English and American constitutions. One is that the American legislature is much less free than the Eng- lish one. The other is that the American judiciary has been made the guardian of the constitution. The English courts cannot declare an act of Parliament unconstitu- tional. An American court does this constantly with the acts of American legislatures. It is this latter conse- quence that gives the greatest practical importance to the study of American constitutional law. § 5. Written constitutions in America. In all Amer- ican states certain fundamental personal, property, and political rights are secured by written constitutions. These constitutions have several distinct functions : (1) Const., Art. V. 6 CONSTITUTIONAL LAW First, they are constructive. They provide a fomi of jrovernnient, divide the various powers into convenient groups, and prescribe the proper mode of their exercise. Tliis is the oldest and commonest function of a constitution. Second, they are prohibitive. They place a number of restrictions upon legislative and executive powers and even upon the power of the individual to make cer- tain contracts or use his property in certain ways. The most important of these prohibitions are designed to pro- tect the individual citizen from governmental oppression, and it is the existence of these prohibitions in modern constitutions that most sharply distinguishes them from the governmental instruments of antiquity. As com- pared with the total bulk of constitutions, these supremely important provisions are but a small part. In the con- stitution of New York they form less than one-twentieth, and of South Dakota less than one-thirtieth. They secure personal and religious liberty, freedom of speech and of the press, rights of assemblage and petition, equal pro- tection of the laws, compensation for property taken for public use, protection to persons accused of crime, im- munity from unreasonable searches or seizures, and due process of law for all attempts to deprive persons of life, libert>% or property. Third, in the case of the Federal Constitution, it also divides the powers of government between the states and the United States, and provides for the orderly adminis- tration of our Federal system. § 6. Outline of American constitutional history before GENERAL CONCEPTIONS 7 1789. A brief summary of the principal facts of our con- stitutional history, before the present Constitution, may conveniently be inserted here. The English colonies in America were settled or acquired by Great Britain be- tween 1607 (Virginia) and 1732 (Georgia). Most of them had governors, appointed by the crown or colonial pro- prietors, and popular assemblies convened under the authority of crown or proprietors. In Rhode Island and Connecticut, governor and legislature were chosen by the people. The part taken by the colonists in the French and Indian war (1754-63) that wrested Canada from France gave a considerable impetus toward colonial unity, which was much increased by the unwise and irritating attempts of Parliament to tax the colonies and hamper their foreign trade. The Stamp Act congress of 1765 was attended by representatives from most of the colonies to petition against this legislation and make a declaration of colonial rights. The stamp act was repealed and an import duty levied on goods entering the colonies. A feature of the resistance to this was the *' Boston tea- party ' ' at which some cargoes of imported tea were forci- bly thrown into the harbor. Parliament replied by an act closing the port of Boston and changing the charter of Massachusetts. In 1774 the first Continental Congress met and adopted resolutions and addresses declaratory of American rights. The battle of Lexington and Concord followed in 1775, and the Revolution began. The second Continental Congress met shortly after and assumed the conduct of the war. Under its recommendations ( § 7, be- low) the early state governments were formed, and it con- 8 CONSTITUTIONAL LAW tinned to not as a central governing body of dubious au- thority in all but military and diplomatic matters, until the adoption of the Articles of Confederation in 1781, which for the first time created a foniial organic union between the states. The Declaration of Independence, adopted by this Congi'ess in 1776, was its principal political act, and marks the legal date of the beginning of our existence as an independent nation. Perhaps the most important events of the Confederation were the cession to the United States of the lands claimed by various states west of the Alleghanies (§ 256, below), and the adoption, by the Con- gress of the Confederation, of the Ordinance of 1787 for the government of the Northwest territory thus ceded, with a provision excluding slavery from it. The failure of the Confederation and the adoption of the Constitution are related in §§ 9-10, below. Section 2. Making and Changing Amebic an Con- stitutions. § 7. Earliest American state constitutions. Under the American system of government written constitutions play so important a part that a brief consideration of the methods by which they may be adopted and changed is de- sirable. During the first eighteen months of the Revolutionary war the governments of most of the revolting colonies were conducted by provincial conventions or congresses in each colony, made up of delegates chosen in various irregular ways; and their acts and recommendations, under stress of war, were very generally respected and GENERAL CONCEPTIONS 9 obeyed by the Revolutionary party. Connecticut and Rhode Island, under their colonial charters, had popular anti-British assemblies that continued to administer their governments. As the expectation of an early peace with England diminished, the Continental Congress, in re- sponse to several requests, advised the informal govern- ing bodies in each colony to call a full representation of the people, in order to form a more permanent frame of government during the continuance of the war. Be- ginning with New Hampshire in 1776, brief constitutions were promulgated by the provincial congresses, or by con- ventions called for this purpose, without any submission of them to the people, in all of the colonies except Con- necticut, Rhode Island, and Massachusetts. Connecticut and Rhode Island continued under their colonial charters, but events in Massachusetts took a different course. § 8. Constitution of Massachusetts. In June, 1775, acting upon the advice of the Continental Congress, the provincial convention of Massachusetts wrote letters to the towns in the colony requesting them to choose repre- sentatives to form an assembly. The assembly when elected chose a council and the two of these together con- stituted the Massachusetts general court or legislature. In 1778 this body prepared a constitution that was sub- mitted to the people and rejected. The year following, the people voted that a new constitution should be drafted by a convention especially called for this purpose. The legislature made provision for the election of delegates to such a convention by the votes of all resident freemen, twenty-one years old. The convention met in September, 10 CONSTITUTIONAL LAW 1779. aud in ^[arch, 1780, the new constitution was laid before the people, to be approved by two-thirds of the male inhabitants of the age of twenty-one, voting. Over two-thirds approved, and the convention, having re- assembled, declared the constitution established and re- solved that it should take effect the October following. It is notable that although this constitution contained a provision limiting the suffrage under it to persons having a specified property qualification, yet all freemen over the age of twenty-one were empowered to vote upon its adoption. It was the first American constitution adopted by popular vote. Of all the constitutions originally formed by the first American states that of Massachusetts alone is in force today. It has been frequently amended, but all attempts to substitute a new constitution for it have failed. All other states, except those most recently admitted to the Union, have had more than one constitution. Texas has had seven altogether, and Kansas had three in three years, § 9. The Articles of Confederation. The Articles of Confederation, framed by the second Continental Con- gress, were presented to the legislatures of the various states in 1778, and were ratified by the last of them in March, 1781. Article VIII provided: **The articles of this Confederation shall be inviolably observed by every state, and the Union shall be perpetual; nor shall any alterations at any time hereafter be made in any of them, unless such alteration be agreed to in a Congress of the United States and be afterwards confirmed by the legis- latures of every state.'* GENERAL CONCEPTIONS 11 The government of the Confederation speedily failed for want of coercive authority to execute its powers. It could neither tax, regulate trade, carry out its inter- national obligations, nor keep internal peace, but was obliged to rely upon recommendations to the states for carrying out these measures. The urgency of war once removed, natural differences of opinion among the states rendered united action impossible, and the central gov- ernment fell to pieces with unchecked rapidity. Various efforts to amend the Articles of Confederation so as to give the Congress at least some powers of taxation were defeated by the requirement of unanimity among the states. § 10. Adoption of the United States Constitution. In 1786 Virginia called a meeting of commissioners from all of the states to consider the adoption of such an act as would enable Congress to provide for a uniform system in their commercial relations. Commissioners from five states met at Annapolis in September, 1786, in conse- quence of this call. They recommended a convention to meet at Philadelphia the next May to devise provisions to render the Constitution of the Federal government ade- ! quate to the Union, and their report was sent to Congress * and to the states. In February, 1787, Congress passed a resolution recommending such a convention ' ' for the pur- pose of revising the Articles of Confederation and re- porting to Congress and the several legislatures such t alterations and provisions therein as shall, when agreed to in Congress and confirmed by the states, render the 12 CONSTITUTIONAL LAW Federal Constitution adequate to the exigencies of the government and preservation of the Union." Representatives of all of the states except Rhode Island attended the convention, and on September 17, 1787, adopted the Constitution. The convention directed the Constitution to be laid before Congress, and recommended that it should be afterward submitted to a convention of delegates chosen in each state by the people under the recommendation of its legislature. Article VII of the proposed Constitution provided that the ratification of the conventions of nine of the states should be sufficient for the establishment of the Constitution between the states ratifying. The convention recommended to Congress that, as soon as nine of the states had ratified, Con- gress should fix a time for the appointment of electors, a time when they should vote for president, and a time and place for commencing proceedings under the Con- stitution. It will be noticed that the new Constitution provided that it should become effective as soon as ratified by nine ttates, while the Articles of Confederation provided that they should not be changed except by unanimous consent of the states. Eleven states at first ratified the Constitu- tion, and the new government went into effect between them March 4, 1789. North Carolina ratified in Novem- ber of that year, and Rhode Island in May, 1790. § 11. Modes of amending constitutions. The constitu- tions of our states are amended or wholly remade with great frequency, and upon six different occasions the Federal Constitution has been amended. Questions fre- GENERAL CONCEPTIONS 18 quently have arisen respecting the proper mode of amend- ing constitutions and these may conveniently be discussed under several heads: 1. The previous constitution may contain no provisions regarding its amendment. 2. A mode of amendment may be provided, but may not be made expressly exclusive of other modes. 3. An exclusive mode of amendment may be expressly provided. § 12. Same: Where constitution contains no express provision. The first constitutions of most of the thirteen original states contamed no express provisions at all con- cerning their amendment. That of Massachusetts pro- vided that in 1795 the people should vote upon the ex- pediency of revising the constitution, and that if two- thirds voted in favor of this a new convention should be called. Nothing was done in 1795, but 1820 the legis- lature secured an affirmative vote of the people in favor of a convention for revising the constitution. The convention was held and various amendments pro- posed by it were adopted, among them an amendment providing an orderly method for future amendments. This early incident is typical of the usual American prac- tice. "Where a constitution contains no express provision for its amendment, the legislature may call a convention of delegates chosen by the people, the call being made directly by the legislature, or in consequence of a previous vote of the people authorizing the legislature to do so. The convention so called may propose changes in the con- stitution and submit them to the people, and when ratified by the vote of the latter the constitution is changed ac- cordingiy. Vol. XII— S 14 CONSTITUTIONAL LAW !; 13. Same: Where constitution provides a non-ex- clusive mode of amendment. Where a state constitution expressly provides that it shall be amended by calling a convention and submitting amendments to the people, doubtless there is no implied power to amend in any other way. This method, however, though well adapted for a general revision of a constitution, is expensive and cum- bersome for dealing with isolated specific amendments. Most of our constitutions, therefore, provide for their amendment by the submission to the people of proposals first passed by the legislature, or by two successive legis- latures. It is generally held that this permission to amend in the legislative mode does not impliedly deny authority to amend by the agency of a convention called as set forth in § 12, above. This original and typical method may always be employed unless expressly for- bidden. § 14. Same: Exclusive mode of amendment expressly provided. If a constitution expressly provides that it shall be amended by a certain method or methods, only, there can be no legal warrant for employing a different mode, and acts done under the latter do not acquire the force of law except as the fruit of an accomplished revo- lution against the prior form of government. § 15. Peaceful revolutions. In a few instances the pro- cedure mentioned as illegal in § 14, above, has been pur- sued, and a new constitution or constitutional amendments have been adopted thereunder and acquiesced in by the people and departments of government. This must be regarded in the light of a peaceful revolution, akin to that GENERAL CONCEPTIONS 15 by whicli the old Confederation was displaced, in direct denial of its provisions, by the new Constitution in 1788 (§10, above). § 16. Amendment of Federal Constitution. The Unit- ed States Constitution contains in Article V an express provision for proposing amendments by a two-thirds vote of each house of Congress, or by a convention called by Congress upon the application of the legislatures of two- thirds of the states. The former method has been uni- formly pursued heretofore. Perhaps Congress could not call a convention upon its own motion, in the ordinary American method (§ 12, above), even though this is not expressly forbidden (§ 13, above) ; for Congress has only the powers delegated to it by the Constitution, not the general residuary powers of a state legislature (§§ 24-27, 249-51, below), and it would be difficult to show that a power of this nature was fairly to be implied from the character of the national government. The principal practical question that has arisen over the procedure of amending the Federal Constitution is whether a state may withdraw a ratification of an amendment once given, if the retraction takes place before the amendment has been adopted hj the requisite number of states to make it part of the Constitution. This occurred with respect to both the Fourteenth and Fifteenth Amendments, and Congress by resolution declared the attempted with rawal ineffec- tive (la). (la) The topics of §§ 11-16, above, are fully discussed in Jameson on Constitutional Conventions C4tli ed.), sees. 563-S5. 16 CONSTITUTIONAL LAW Section .'>. Separation of Departments of Go\'ern- MENT. § 17. General American doctrine. The prevalent American doctrine is that the legislative, executive, and judicial departments of government should be separated so far as is practicable, and that their respective powers should be exercised by different men or groups of men. The Federal Constitution does not require this of the state governments (§ 138), but all state constitutions re- quire it to varying extents. A few illustrations will make clear how this works in practice. § 18. Judicial powers cannot be exercised by legis- lative and administrative bodies. In an early New Hamp- shire case (2) a law suit had been decided against one Merrill, and the court had refused his motion for a new trial and rendered judgment against him. The legislature on Merrill's petition passed an act granting him a new trial in the case. The New Hampshire court decided this act to be unconstitutional and void, as an attempted exer- cise of judicial power by the legislature, saying: ''No particular definition of judicial powers is given in the constitution ; and considering the general nature of the in- strument none was to be expected but 'powers judicial,' 'judiciary powers,' and 'judicatories' are all phrases used in the constitution, and though not particularly de- fined are still so used to designate with clearness that de- partment of th: government which it was intended should interpretate and administer the laws. On general prin- ciples, therefore, those inquiries, deliberations, orders, (2) Merrill v. Sherburne, 1 N. H. 199. GENERAL CONCEPTIONS 17 and decrees, which are peculiar to such a department must in their nature be judicial acts. Nor can they be both judicial and legislative, because a marked difference exists between the employment of judicial and legislative tribunals. ' ' The former decide upon the legality of claims and con- duct ; the latter make rules upon which, in connection with the Constitution, these decisions should be founded. It is the province of the judges to determine what is the law upon existing cases. In fine the law is applied by the one and made by the other. ' ' § 19. Same: Further illustrations. In Kansas the legislature created a so-called court of visitation which was given power to regulate public service companies, to determine the reasonableness of the regulations thus made, and then to enforce them. The Federal circuit court held that this combination of judicial with legisla- tive and administrative powers was forbidden by the con- stitution of Kansas, which provided for separate execu- tive, legislative, and judicial departments, though it did not expressly forbid the powers of one to be exercised by the others. The court said: ''That, in a broad sense, powers of one of these departments shall not be conferred upon either of the others is not only within the true spirit of these provisions, but also substantially within the letter thereof; and the addition thereto of an express prohibi- tory declaration, such as is contained in the constitutions of some of the states, that the powers of one departmenj^ shall not be exercised by another, would add very little to IS CONSTITUTIONAL LAW tln'ir efTect, so far as concerns the question under con- sideration. The universal doctrine of American liberty under written constitutions requires the distribution of all the powers of government among three departments — legislative, judicial, and executive — and that each, within its appropriate sphere, be supreme, coordinate with, and independent of both the others" (3). Nor can an administrative body like the Interstate Commerce Commission be given power to compel obedi- ence to its orders by a judgment of fine or imprisonment. Such obedience, under the Constitution of the United States, can be compelled only by a competent judicial tribunal having jurisdiction of the case (4). ;i 20. Non-judicial powers cannot be conferred on courts. On the other hand, courts cannot be required to exercise non-judicial powers. A Connecticut statute pro- vides that any street railway company might apply to the superior court to approve and adopt a location for its tracks with such regulations regarding streets, cars, con- struction, and motive power as the court might prescribe. The supreme court of Connecticut held this not to be the exercise of judicial power, and therefore denied that it could be conferred upon a court. Instead, it was a proper matter for legislative and administrative action (5). But if the question left to the court is whether certain definite circumstances exist or conditions have been fulfilled upon f3) Western Union Tel. Co. v. Myatt, 98 Fed. 335. (4) Interstate Commerce Commission v. Brimson, 154 U, S. 447. (5) Norwalk Street Railroad's Appeal, 69 Conn. 576. GENERAL CONCEPTIONS 19 which a license may be granted or a town incorporated, it is generally held a proper matter for judicial determi- nation (6). The courts cannot be required to decide questions or decisions which will later be subject to revision or review by other departments of the government. The final find- ing of a court, when not appealable to another court, is not a judicial determination unless it is enforceable by some process or is made by statute the final or indisput- able basis of action by other departments of govern- ment (7). Of the latter nature are actions against itself permitted by the state or the United States, where it is made the duty of the government sued to pay any judgment that may be rendered against it. 1 21. Inherent powers of departments of government. As a corollary to the doctrine of the separation of powers in American governments, each department has certain inherent powers of which it cannot be deprived by the action of the other departments, even though the latter do not attempt to exercise them. Eoughly speaking they are such powers as are necessary to maintain the effective independence of the departments in the discharge of their appropriate duties. For instance, a Virginia statute at- tempted to deprive the courts created by the Virginia con- (6) McCrea v. Roberts, 89 Md. 238; Forsythe v. Hammond, 142 Ind. 505. (7) In re Sanborn, 148 U. S. 222. 20 CONSTITUTIOiNAL LAW stitution of their power to punish contempts summarily, and to substitute a jury trial for the action of the court itself. This was held unconstitutional, and the court stated its conclusions : ' * That in the courts created by the constitution, there is an inherent power of self-defense and self-preservation; that this power can be regulated but cannot be destroyed, or so far diminished as to be rendered ineffectual by legislative enactment ; that it is a power necessarily resident in and to be exercised by the court itself, and that the vice of an act which seeks to de- prive the court of this inherent power is not cured by pro- viding for its exercise by jury ; that while the legislature has the power to regulate the jurisdiction of the courts, it cannot destroy, while it may confine within reasonable bounds, the authority necessary to the exercise of the jurisdiction conferred" (8). Similarly the United States Supreme Court has said: "In order that the court may compel obedience to its orders it must have the right to inquire whether there has been any disobedience thereof. To submit the question of disobedience to another tribunal, be it jury or another court, would be to deprive the proceeding of one-half its efficiency" (9). There are conflicting views as to whether the independ- ence of the courts requires them to control admissions to the bar. In Illinois and Pennsylvania a legislature may not compel the admission to the bar of persons who have not complied with the requirements demanded by the (8) Carter's Case, 96 Va. 791, 816. (9) In re Debs, 158 U. S. 564, 595. GENERAL CONCEPTIONS 21 courts (10). The contrary view is taken in New York and North Carolina (11). § 22. Limitations of general doctrine. The doctrine of the separation of powers of government is of course not susceptible of rigorous application. Each department, as a matter of convenience and necessity, or to protect its own independence, must in a certain measure exercise powers of a character that strictly belongs to another de- partment. The legislature, for instance, must often make investigations to ascertain the facts preliminary to legis- lation, and for this purpose must summon witnesses, ex- amine them, and punish their refusal to answer. These proceedings, though judicial in their nature, are necessary incidents of a proper exercise of legislative power, and so may be conducted by a legislature (12). Likewise, both the executive and courts may make rules concerning their procedure, which are legislative in character, but yet prop- erly incidental to executive and judicial duties. § 23. Same: Appointment of officers. Taxation. Some functions, like the appointment of officers, do not so distinctly belong to one department that they may not be exercised by another, and in such a case the power of appointment may be conferred upon either the executive or the courts, or be exercised by the legislature itself, at its pleasure (13). The Federal Constitution expressly (10) In re Day, 181 111. 73 ; In re Splaue, 123 Pa. 527. (11) Matter of Cooper, 22 N. Y. 67: Ee Applicants for License, 143 N. C. 1. (12) People V. Keeler, 99 N. Y. 463. (13) Fox V. McDonald, 101 Ala. 51. 22 CONSTITUTIONAL LAW provides that Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law or in the heads of de- partments (U). In a number of the states an early prac- tice of giving inferior courts the power of levying local taxes and assessing property therefor has been continued ( 15 ) . It has been said : ' ' The ascertainment of values of property is strictly judicial, and in governments per- fectly separated into the three distinct departments of legislative, executive, and judicial would of necessity be- long to the judicial. It has, however, been considered a necessar}' adjunct of the strictly legislative power of levy- ing taxes." This power, then, in connection with an assessment, may properly be conferred upon the judiciary (16). Some states, however, wholly deny the validity of such practices (17). Section 4. The States and the United States § 24. General theory of state powers. When the Brit- ish colonies in America freed themselves from the British government by the successful Revolution of 1774-81, the newly created American states succeeded to the powers of the British government; and to their legislatures de- scended the powers of the British Parliament. "The accepted theory upon this subject appears to be (14) Const. Art. 2, sec. 2, § 2. (15) State V. Gazley, 5 Ohio, 14; Ballard v. Thomas, 19 Gratt (Va.) 14. (16) Wheeling Property C^o. v. Paul, 39 W. Va. 142. fl7) Munday v. Rah way, 43 N. J. L. 338; Auditor v. Railroad, 6 Kan. 600. GENERAL CONCEPTIONS 23 this: In every sovereign state there resides an absolute and uncontrolled power of legislation. In Great Britain this complete power rests in the Parliament; in the Amer- ican states it resides in the people themselves as an or- ganized body politic. But the people, by creating the Con- stitution of the United States, have delegated this power as to certain subjects, and under certain restrictions, to the Congress of the Union ; and that portion they cannot resume, except as it may be done through amendment of the national Constitution. For the exercise of legislative power, subject to this limitation, they create, by their state constitution, a legislative department upon which they confer it ; and granting it in general terms, they must be understood to grant the whole legislative power which they possess, except so far as at the same time they saw fit to impose restrictions. While, therefore, the Parlia- ment of Britain possesses completely the absolute and un- controlled power of legislation, the legislative bodies of the American states possess the same power, except, first, as it may have been limited by the Constitution of the United States; and, second, as it may have been limited by the constitution of the state. A legislative act, can- not, therefore, be declared void, unless its conflict with one of these two instruments can be pointed out" (18). § 25. Powers of state governments before 1789. The Confederation. After the Declaration of Independence in 1776 all of the American states, except Connecticut and Rhode Island, adopted constitutions providing a frame (18) Cooley, Const. I.iru. 241 (7 ed.). 24 CONSTITUTIONAL LAW of government, distributing its powers, and enjoining certain limitations upon their use. Connecticut and Khode Island continued under their colonial charters, Connecticut expressly retaining its charter as a constitu- tion with a few brief additional prohibitions, and Rhode Island going on without any express readoption of its charter. Connecticut did not adopt another constitution until 1818, nor Rhode Island until 1842. These early American constitutions contained bills of rights that in general prohibited to the political depart- ments of the state the exercise of powers already found by English experience and by their present quarrel with Great Britain to be fraught with danger to individual rights. The principal ones of these are enumerated in § 5, above. Subject to these or similar restrictions and to the few restrictions upon the powers of the state con- tained in the Articles of Confederation, adopted in 1781, the early state governments kept the entire remaining field of legislation. The prohibitions upon the power of the states in the Articles of Confederation chiefly limited their power to enter into political relations either with foreign countries or with each other, save with the consent of Congress ; and secured to the people of each state rights of intercourse with other states without discrimination. Provision was made for the interstate extradition of crim- inals, the interstate recognition of judicial proceedings, and the settlement of interstate boundary disputes; and Congress was given control of interstate post offices, Indian affairs, the alloy and value of coin, and the stand- ards of weights and measures. GENERAL CONCEPTIONS 25 The Confederation was virtually a league between the states, and the powers given to it were in the main de- pendent for their enforcement upon the law of the states themselves. It could not effectively act upon individuals in the states. § 26. Division of powers between state and nation ef- fected by Federal Constitution. The failure of the Con- federation and the adoption of the Constitution created an entirely new political situation. The theory of the division of powers between the new national government and the older state governments has been judicially stated with accuracy as follows : **In 1789, the Constitution of the United States, having been adopted by the required number of states . . . went into operation, and became the law of the land. This system was founded upon an entirely different principle from that of the Confederation. Instead of a league among sovereign states, it was a government formed by the people, and, to the extent of the enumerated subjects, the jurisdiction of which was confided to and vested in the general government, acting directly upon the people. *We the people,' are the authors and constituents; and 'in order to form a more perfect union' was the declared purpose of the constitution of a general government. ''It was a bold, wise, and successful attempt to place the people under two distinct governments, each sovereign and independent within its own sphere of action, and dividing the jurisdiction between them, not by territorial limits and not by the relation of superior and subordinate, but classifying the subjects of government and designating 26 CONSTITUTIONAL LAW those over which each has entire aud independent juris- diction. This object the Constitution of the United States proposed to accomplish by a specific enumeration of those subjects of general concern, in which all have a general interest, and to the defense and protection of which the undivided force of all the states could be brought promptly and directly to bear. "Some of these were our relations with foreign powers — war and peace, treaties, foreign commerce and com- merce amongst the several states, with others specifically enumerated ; leaving to the several states their full juris- diction over rights of person and property, and, in fact, over all other subjects of legislation, not thus vested in the general government. All powers of government, therefore, legislative, executive, and judicial, necessary to the full and entire administration of government over these enumerated subjects, and all powers necessarily incident thereto, are vested in the general government; and all other powers, expressly as well as by implication, are reserved to the states" (19). § 27. Nature of the Federal Government: Of limited powers. From the nature of the Constitution of the United States, there result two great constitutional prin- ciples. The first one is that the United States is strictly a government of limited powers. The rule for construing its powers is exactly the opposite of that for construing the powers of the states. The state governments have un- limited powers, except where prohibited by the United (19) Opinion of Justices, 14 Gray, 615-16. GENERAL CONCEPTIONS 27 States Constitution or by their own constitutions. The United States, on the other hand, can exercise no powers whatever except those found granted to it in the Consti- tution. Of course all of these Federal powers need not be expressly granted, but may fairly be implied from those that are expressly granted. For instance, the United States is given express power to establish post offices and post roads. As incidental to this power and implied from it, the United States may carry the mail, regulate the character of mailable matter, and provide penalties for any interference with these rules. But unless a power can be found granted to the United States by the Consti- tution, either expressly or by fair implication, Congress cannot constitutionally exercise it. § 28. Same: Supreme in its sphere. The second great principle is that although the United States is a government of limited powers, its control over such pow- ers as are granted to it is full and absolute, and that its laws passed in the exercise of the granted powers are superior to all state laws conflicting therewith. For in- stance, Congress having been given control of the post office may, if it sees fit, control entirely everything rea- sonably connected with the postoffice, even to the extent of making it a government monopoly. The supremacy of its laws over those of the states is probably secured by implication from the nature of the government it cre- ates, but is also expressly provided for in Article VI of the Constitution: ^'This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, 28 CONSTITUTIONAL LAW under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bonnd thereby, anything in the constitution or law of any state to the contrary notwithstanding." The principles stated in this and the preceding sub- section are further discussed in §§ 249-55, below. CHAPTER 11. FUNCTION OF JUDICIARY IN ENFORCING CONSTITUTIONS. Section 1. Power to Declaee Laws Unconstitu- tional. §29. Departments of government. Modem political analysis divides the powers of government into three great departments, the legislative, executive, and judicial ; and modern constitutional government has decreed a con- siderable separation of these departments to prevent abuses. Of course an absolute separation is impracticable because the departments are but different aspects of one government and are closely connected at many points. American constitutional doctrines as to the separation of governmental powers have been discussed in §§ 17-23, above. § 30. Power to declare laws unconstitutional. Where does it reside? Now, having a written constitution at- tempting in a general way to divide the powers of gov- ernment between the three departments and to prohibit the exercise of certain powers altogether, the very inter- esting question presents itself: Who, and under what circumstances, is to determine when any given department oversteps its proper sphere, or attempts to exercise a forbidden power? § 31. Same: European doctrine. As a matter of pure Vol. xn— 4 ^ so CONSTITUTIONAL LAW theory, there is of course no more reason why one of three departments of government, admitted to be of equal and coordinate powers, should have the right to declare acts of the others unconstitutional than that any of the others should have the same power. Each department might be left to judge for itself what was constitutional within its own sphere, and when there was a conflict they could compromise or get along otherwise as best they could. This is the view adopted on the continent of Europe. No European court acting under a written con- stitution can declare invalid an act of its coordinate legislative body. The legislators take an oath to obey the constitution, but within the legislative sphere they are the judges of what is constitutional, and the duty of the courts is to enforce the laws actually passed. The determi- nation of what laws are constitutional is the function of the legislature. In like manner the executive decides for himself what are the constitutional duties he is sworn to perform, and, except where there are provisions for im- peaching him, this decision is not subject to review by any other department of government. The same can be said of the acts of the judiciary. Each judge swears to obey the constitution, but the court is its own judge of what this requires within its sphere. The result is that a written constitution in Continental countries is a rule binding the political morality and com- mon sense of each of the departments of government, but its provisions are not enforceable by one coordinate branch of the government against another, except where GENERAL CONCEPTIONS 31 some express provision to this effect is inserted in tho constitution. §32. Same: English doctrine. As the result of a series of constitutional struggles in England between the crown and the people the legislative power of Parliament had established itself as supreme over the executive power of the crown, and the judiciary also had become inde- pendent of the crown by a life tenure of office. The at- tempts of Parliament to coerce America by passing acts of taxation that were felt to be tyrannous, gave rise to speculation as to the extent of this power of Parliament. Was it supreme, no matter to what extent it might go, or were there limits to its power based on natural justice and common right, and if so could the courts enforce these limitations by declaring acts of Parliament that overstepped them to be void ? In spite of a few dicta of English judges to the effect that acts of Parliament repugnant to reason and common right were void, there can be no doubt that an act of Parliament when clearly expressed is supreme and bind- ing on the English courts, no matter how unjust or un- wise its provisions (1). Opinions to the contrary, how- ever, based chiefly on political grounds and the intense opposition of the colonists to taxation by England with- out representation, were quite widespread among Amer- ican statesmen before the Revolution, and no doubt had some influence in determining the course of American practice in controlling acts of the legislature. (1) Webb V. Outrlm (1907), A. C. 81, 8». 32 COXSTITUTIOxNAL LAW § 33. Colonial practice. Its influence. Tlie American co)o-,;es for a long time prior to the Revolution were gov- erned under colonial charters, written instruments granted by the monarchs of England. They had legisla- tures whose laws had to conform to the provisions of these charters. If they did not, they were void, and could be so declared by the colonial courts, or, on appeal, by the pri\7' council of England. There was nothing strange about this. Neither the legislature nor the colonial courts were independent departments of government, each su- preme in its sphere. Both were subject entirely to the laws of Parliament and the English king. Now when the colonies became free, and there was no longer any governmental authority superior to the courts and legislature of the late colonies, this reason for the courts disregarding the acts of the legislature disap- peared. Both were now coordinate departments of gov- ernment, supreme in their own spheres, and responsible only to the people at the end of their terms of oflfice. Both were subject to the state constitution, but there was no provision of that constitution which expressly authorized the court to refuse to enforce unconstitutional laws, any more than the legislature was given authority to refuse to appropriate money for the judges' salaries if the legis- lature thought the court had acted unconstitutionally. The executive, for example, has no right to refuse to en- force a law passed over his veto, which he considers un- constitutional. If he does so, he may be impeached. But the colonies had been in the habit of seeing colonial laws occasionally declared void by the courts. To the con- GENERAL CONCEPTIONS 33 servative classes of the community, which at that time had a strong controlling influence, this seemed a wise and sensible means of enforcing constitutional guarantees of security of property against the possible excesses of a legislature chosen by popular suffrage. So, on the adoption of the state constitutions, the courts tacitly as- sumed the function of interpreting the constitution for the legislature, and this was generally acquiesced in, though not without some opposition (la). § 34. Early American decisions. The earliest Amer- ican decision that judges might disregard legislative acts forbidden by the constitution appears to have been given in New Jersey in 1780, in the case of Holmes v. Walton (2). It was followed by a case in New York in 1784, Rut- gers V. Waddington (3), in which the court so construed an act of the New York legislature as to avoid a violation of the treaty of peace with Great Britain. The decision excited considerable popular discontent, and the New York assembly passed a resolution denying the right of the court to dispense with an act of the legislature. A little later the judges in Rhode Island likewise declared void an act of the legislature in violation of the constitu- tion, in the case of Trevett v. Weeden (4). The Rhode Island legislature summoned the judges before it to ex- plain their reasons for this. After an explanation by the judges the legislature voted its dissatisfaction with (la) James B. Thayer in 7 Harv. Law Rev. 130-34. (2) 4 American Historical Review, 456. (3) Pamphlet, edited in 1866; 1 Thayer, Cas. C. L., 63. (4) 2 Chandler's Crim. Trials, 269; 1 Thayer, Cas. C. L., 73. M CONSTITUTIONAL LAW their reasons, and a motion was made to dismiss the judges from ofEce, but this attempt was finally abandoned. There were also several other judicial expressions of opinion by colonial courts to the same effect before the adoption of the United States Constitution. § 35. Decision under Federal Constitution: Marbury V. Madison. When the Philadelphia convention met in 1787 to frame the Constitution of the United States, its legal members, of whom there were a number of much prominence, must have known of these decisions, and it is likely that the convention expected the courts to ex- ercise the power of disregarding unconstitutional acts of Congress. In the Federalist papers, No. 78, it was argued by Hamilton that the courts would have this power under the Constitution of the United States. In 1803 the ques- tion finally came before the Supreme Court of the United States in the great case of Marbury v. Madison (5). The Constitution expressly limited the original jurisdiction of that court to certain cases, but an act of Congress at- tempted to give it jurisdiction in another case. The opinion of the court, given by Chief Justice Marshall, held the act unconstitutional and laid down the principle that it was the duty of the court to disregard such acts. The judges had sworn to support the Constitution, which they could not do if they gave effect to a law inconsistent with it. The act of Congress was inferior to the Constitu- tion and when the two were inconsistent the judges were bound by their oath to disregard the inferior law. (5) 1 Cranc'a. (U. 3.) 137. GENERAL CONCEPTIONS 35 § 36. Reasons for the doctrine. It may be doubted whether this reasoning is really so forcible as it at first seems. The President has also sworn to support the Constitution of the United States. Is he, therefore, at liberty to refuse to enforce an act of Congress that he deems unconstitutional? Is it any part of his duty under the Constitution to decide this question? The generally accepted doctrine is that the executive is not charged with this function ; nor are the courts necessarily charged with such a duty, merely because they have sworn to support the Constitution. The true reasons for the American practice in this regard, which is now universally recog- nized in this country, are political. It is desirable that such a power be lodged outside of the departments upon whose action our constitutions have placed restrictions in the interests of the rights and liberties of the individual. The departments upon which these checks have been placed are chiefly the executive and the legislative. For them to measure their own powers in a popular govern- ment in times of public excitement is to make a constitu- tion inoperative in the very emergencies for which these prohibitions were inserted. The judiciary is the weakest of the three departments of government. It controls neither the purse nor the sword, and unassisted it can do little that is injurious to political or civil liberty. Its members are likely to be more conservative, and to be less influenced by momentary passion than are the mem- bers of the legislature. Giving the judiciary a certain negative control over the acts of the other departments is likely to result in the provisions of a constitution be- 36 CONSTITUTIONAL LAW ing more faithfully observed than would otherwise be the case. This construction, political rather than logical, has been amply vindicated in American experience, and the doc- trine that our judiciary may declare laws unconstitutional is perhaps the most important single American contribu- tion to the science of governmental administration. Section 2. Limitations Upon Exercise of Powee. § 37. Power is strictly judicial in character. "What is the nature of this power of the courts to declare laws un- constitutional, and what are the proper occasions for its exercise? It is not a power that is exercised as a matter of course by the courts as each statute of doubtful valid- ity comes from the legislature. The power is strictly a judicial one, to be exercised by the courts only in the course of litigation in which the question of the constitutionality of a legislative act necessarily arises. It may not be for the interest of an individual to raise the question, and so an unconstitutional law may be enforced upon the statute books for years before it is actually brought into question before a court. When a national bank was first chartered by the United States in 1791 grave doubts were expressed of its constitutionality, and those doubts continued for years, yet it was twenty-eight years before a suit actually came before the courts requiring a decision on this question. § 38. Unconstitutionality should be clear. Sometimes the question of the constitutionality of a legislative act is a very close one, depending upon the interpretation of GENERAL CONCEPTIONS 37 complex social and economic facts, where reasonable men may disagree widely in their conclusions. Tne legislature is charged in the first instance with the duty of interpret- ing the constitution, of deciding what it permits, and what, within the limits of permissible action, is politically expedient. The legislature is chosen so as to represent a wide constituency and many shades of political and social opinion. When it has decided upon a course of action and embodied it in a statute, perhaps of doubtful con- stitutionality, what should be the attitude of the courts? Suppose for instance that the legislature has passed an act making eight hours a day's labor in a mine, or has forbidden the payment of wages to employees by store orders. On the one hand the legislature is forbidden to deprive a man arbitrarily of his right to work and con- tract as he thinks best, but on the other hand it is the duty of the legislature to guard the welfare of the com- munity even against the improvident acts and contracts of individuals. It may well be that a large number of thinking persons in the community feel that eight hours work underground daily is all that average human health can stand, and that there are abuses connected with the payment of wages in store orders that can only be rem- edied by the abolition of the practice. An equal number of competent persons may perhaps disagree with either of these positions, on equally reasonable grounds. If the constitutionality of the act is to be decided according to the individual social or economic views of the judges, then inevitably their opinions rather than those of the legislature will be enforced ; and if the question is one of SS CONSTITUTIONAL LAW any importfl \co the same political influences that created the legislative majority in favor of the statute will seek to create a judicial majority in the court in favor of it, and judges will be chosen on account of their social, and economic views, rather than on account of their legal ability. These undesirable results can only be avoided by the courts taking the position that legislative acts are valid if they may reasonably be thought to be constitu- tional, even though there is a rational difference of opinion, and even if the judges as individuals may hold opinions contrary to the legislature. A settlement of such reasonable differences of opinion is exactly what a legislature is for, and it is no part of the judicial function to enforce one reasonable view rather than another rea- sonable one that conflicts with it. § 39. Same: Judicial declarations to this effect. It is commonly deemed by courts, therefore, that they are not to declare laws unconstitutional unless the matter is clear. In Pennsylvania, for instance, it has been said: **For weighty reasons it has been assumed as a principle in corstitutional construction by the Supreme Court of the United States, by this court, and every other court of reputation and influence, that an act of the legislature is not to be declared void unless the violation of the consti- tution is so manifest as to leave no room for reasonable doubt" (6). The United States Supreme Court has said: "This declaration should never be made except in clear cases. (6) Commonwealth v. Smith, 4 Binu. (Pa.) 117. GENERAL CONCEPTIONS 39 Every possible presumption is in favor of the validity of the statute and this continues until the contrary is shown beyond all rational doubt. One branch of government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule" (7). Judicial statements to this effect are very common (8). § 40. Exercised only in actual litigation. Besides the qualification just discussed, that a statute should be de- clared unconstitutional only in a very clear case, there are several other limitations upon the power. 1. As suggested above, it can be exercised only in the course of actual litigation. Courts will not judicially de- clare laws unconstitutional in moot cases, nor pass upon their validity at the request of the other departments of government outside of ordinary litigious procedure. An apparent exception to this in the case of so called ''ad- visory opinions" is discussed in §47, below. If no one cares to question an act of the legislature, or if the exist- ing statutes regulating the jurisdiction and procedure of the courts do not permit a proper remedy, it may be im- possible to secure a judicial declaration of the invalidity of a statute really unconstitutional. For instance, Con- gress has apparently not provided any effective pro- cedure for the enforcement in the Federal courts of the right of suffrage in a state, even when improperly denied by the state through the requirement of an unconstitu- (7) Sinking Fund Cases, 99 U. S. 700, 718. (8) People V. Rice, 135 N. Y. 473, 483-4. 40 CONSTITUTIONAL LAW tional system of registration as preliminary to voting (9). § 41. Power not applicable to political acts. 2. The courts have no power to declare invalid acts of the legis- lature touching political matters, unless expressly given these by the constitution. As to such matters the execu- tive and legislature are the sole judges of the consti- tutionality of their own acts, just as the courts are the sole judges of the extent of their own judicial powers. For instance, the United States Constitution (10) pro- vides that the United States shall guarantee every state in the Union a republican form of government. In 1841-2 a condition of civil disorder existed in the state of Rhode Island and two separate organizations each claimed to be the legal government of the state. Violent encounters took place between the partisans of the rival governments and when suits arising therefrom came into the United States courts it was questioned which was the lawful gov- ernment of the state. In Luther v. Borden (11) the Su- preme Court said: ' * The Constitution of the United States . . . has treated the subject as political in its nature and placed the power in the hands of that department. It rests with Congress to decide what government is the established one in a state. For as the United States guarantee to each state a republican government, Congress must necessarily de- cide what government is established in a state before it can determine whether it is republican or not. And when (9) Giles V. Harris, 189 U. S. 475. (10) Const. Art. IV, sec. 4. (11) Luther v. Borden, 7 How. 1. GENERAL CONCEPTIONS 41 the senators and representatives of a state are admitted into the councils of the Union, the authority of the gov- ernment under which they are appointed, as well as its republican character, is recognized by the proper con- stitutional authority. And its decision is binding on the other departments of government, and could not be ques- tioned in a judicial tribunal." . . . Similarly, after the war Congress passed several laws commonly known as ''Reconstruction acts'* for the gov- ernment of the states recently in rebellion before their representatives were readmitted to Congress. The state 01 Georgia began a suit against the Secretary of War and others to prevent the execution of certain provisions of those acts on the grounds that the state was unconstitu- tionally deprived of its political rights. The court de- nied the relief sought, saying : ''That these matters, both as stated in the body of the bill, and the prayers for relief, call for the judgment of the court upon political questions, and, upon rights, not of persons or property, but of a political character, will hardly be denied. For the rights for the protection of which our authority is invoked, are the rights of sov- ereignty, of political jurisdiction, of government, of cor- porate existence as a state, with all its constitutional powers and privileges" (12). So, even though a state constitution prescribes how the state shall be divided into legislative districts, the division is a political function and an improper one cannot be in- (12) Georgia v. Stanton, 6 Wall. 50. 42 CONSTITUTIONAL LAW validated by the courts, in the absence of express con- stitutional authority (13). § 42. When other departments cannot be compelled to act. 3. The courts cannot compel the legislature or the chief executive to act, nor even a subordinate oflBcer to act where he is entrusted with a discretion. In Mississippi V. Johnson (14) in a case arising under the Reconstruc- tion acts the court said : * * The single point which requires consideration is this : Can the President be restrained by injunction from carry- ing into effect an act of Congress alleged to be unconsti- tutional? . . . '*A ministerial duty, the performance of which may, in proper cases, be required of the head of a department, by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist, and im- posed by law. . . . Very different is the duty of the Presi- dent in the exercise of the power to see that the laws are faithfully executed, and among these laws the acts named in the bill. By the first of these acts he is required to as- sign generals to command in the several military dis- tricts, and to detail sufficient military force to enable such officers to discharge their duties under the law. By the supplementary act, other duties are imposed on the several commanding generals, and these duties must necessarily be performed under the supervision of the President as commander-in-chief. The duty thus im- (13) People V. Rice, 135 N. Y. 473. (14) 4 Wall. 475. GENERAL CONCEPTIONS 43 posed on the President is in no just sense ministerial. It is purely executive and political. . . . ''The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial de- partment ; though the acts of both, when performed, are, in proper cases, subject to its cognizance." It is generally held that the governor of a state cannot be compelled by the state courts to perform any act whatever, even though involving no discretion, because he represents the supreme executive authority of the state (15) although some states hold the contrary view as to purely ministerial acts (16). Another illustration of the inability of the courts to compel the political departments of government to dis- charge their functions, even when the latter unconstitu- tionally neglect them, is that afforded by the unhonored section of the Fourteenth Amendment to the United States Constitution which prescribes that when the right of suffrage is denied to any male citizen of a state over twenty-one years old, except for crime, such state's rep- resentation in Congress shall be proportionately reduced. No power except that of Congress can enforce this section of the constitution, and the latter has never chosen to act thereunder. § 43. Laws not invalid merely because unwise. 4. The courts cannot declare a law unconstitutional merely be- ds) People V. Morton, 156 N. Y. 136. (16) State V. Nash, 66 Ohio 612. 44 CONSTITUTIONAL LAW cause it is unwise, or oppressive, or contrary to the spirit of our institutions. As regards this the courts have said: "If a particular act of legislation does not conflict with any of the limitations or restraints [in the constitution] which have been referred to, it is not in the power of the courts to suggest its unconstitutionality, however unwise its provisions may be, or whatever the motive may have been which led to its enactment" (17). ''The theory that laws may be declared void when deemed to be opposed to natural justice and equity, al- though they do not violate any constitutional provisions, has some support in the dicta of learned judges, but has not been approved so far as we know by any authoritative adjudication, and is repudiated by numerous authorities. . . . Admitting as we do the soundness of this view and fully approving it, we come back to the proposition that no law can be pronounced invalid, for the reason simply that it violates our notions of justice, is oppressive and unfair in its operation, or because . . . it is not justified by public necessity or designed to promote the public welfare. If it violates no constitutional provision it is valid and must be obeyed." (18) ''The judiciary can only arrest the execution of a statute when it con- flicts with the constitution. It cannot run a race of opin- ion upon a point of right, reason, and expediency with the law-making power" (18a). § 44. Administrative regulations of the power. 5. In (IT) People V. Draper, 15 N. Y. 532. (18) Bertholf v. O'Reilly, 74 N, Y. 509. (18a) Cooley, Const. Lim. 236-7 (7 ed.). GENERAL CONCEPTIONS 45 addition to the more important restraints upon the power of the judiciary to declare laws unconstitutional that have been discussed above, there are certain administrative rules usually regarded by courts in dealing with the mat- ter. Among these are requirements that the question must be raised by a party really interested, that the litigation must be genuine and not merely collusive, that ordinarily laws should not be pronounced unconstitu- tional save by the highest state or Federal courts and with a full bench of judges ; and that the decision of the consti- tutional point must really be necessary to the disposition of the case. The only one of these rules that perhaps requires any explanation is the one against collusive litigation. This is to prevent the necessity of deciding constitutional questions without adequate argument in a friendly suit between two parties who really wish the same decision. It does not forbid the consideration of constitutional ques- tions in any suit merely because both the plaintiff and the defendant desire the same decision, provided that the government or other parties adversely interested are given a full opportunity to be heard. In the great In- come Tax case of 1895, for instance, a stockholder of a New York trust company brought suit to enjoin the trust company from paying the income tax to the Federal gov- ernment. He was interested in not having his dividends reduced, and of course all the officials of the trust com- pany sympathized with this and would scarcely have made an active defense. At the very beginning of the suit, however, the attorney-general of the United States inter- Vol. XII— 5 46 CONSTITUTIONAL LAW vened with able counsel and the government's side of the case was fully presented at every stage. The litigation was therefore real, even though both the nominal parties desired the same result (19). Section 3. Effect of an Unconstitutional. Act. § 45. In general. Incidental effect. Generally speak- ing, when a statute is declared unconstitutional private rights are left unaffected by it, just as they would have been had it never been passed. The unconstitutional statute, indeed, may afford protection to an officer from prosecution for a crime requiring a particular state of mind, which, owing to his reliance upon the unconstitu- tional statute, he may not have had. He could not, for instance, be convicted of larceny for taking the property which he thought himself authorized to do under a stat- ute really unconstitutional. His reliance upon the statute has prevented his having the state of mind necessary to make him a thief. Moreover, acts done upon the faith of an unconstitutional statute may raise moral obligationsi that the government is justified in discharging, when, but for such a statute no such obligations would have been incurred. For instance, the United States passed an act giving a pecuniaiy bounty to sugar producers, which was shortly afterwards repealed. Congress then passed an act making certain reimbursements to persons who had expended money upon the faith of the previous bounty act. Regarding the validity of this latter provision, the court decided that, even though the original bounty act (19) Pollock V. Farmers' Loan & Trust Co., 157 U. S. 429. GENERAL CONCEPTIONS 4T were unconstitutional, there was still sufiQcient doubt about it to make it proper for the government, in dis- charge of a moral obligation, to reimburse those who had spent money upon the faith of the act (20). In so far as an officer, even though acting in good faith, invades rights of private property and personal immunity under an un- constitutional statute, he is liable civilly to injured per- sons, just as though the act had not been passed (21). On the other hand, if a public officer honestly thinks the act unconstitutional and therefore declines to obey it, he is liable for refusal if the law is later upheld by the courts (22). § 46. Effect of partial unconstitutionality. More diffi- cult questions arise where an act is unconstitutional in part only. Does the entire act fail in this case, or do only the unconstitutional parts of it? This question was dis- cussed in the Income Tax case of 1895. Congress had at- tempted to levy a tax upon incomes in excess of $4,000, from whatever sources derived. A majority of the court held that the income from real estate and invested per- sonal property was a direct tax, and hence forbidden to Congress unless it were apportioned according to pop- ulation, which had not been done. Of course there re- mained a large number of taxable incomes from the pro- fessions, trades, and other employments, but the income from $65,000,000,000 of real and personal property would (20) United States v. Realty Co., 163 U. S. 427. (21) Campbell v. Sherman, 35 Wis. 103. (22) Clark v. Miller, 54 N. Y. 528. 4S CONSTITUTIONAL LAW be excluded, leaving the eutire burden to fall on other incomes. The court said : "It is undoubtedly true that there may be cases where one part of a statute may be enforced as constitutional, and another declared inoperative and void, because un- constitutional ; but these are cases where the parts are so distinctly separable that each can stand alone, and where the court is able to see and declare that the intention of the legislature was that the part pronounced valid would be held enforceable, even though the other part should fail. To hold otherwise would be to substitute for the law intended by the legislature one they may never have been willing by itself to enact." Measured by this test a majority thought Congress could not have intended to tax incomes at all, if the in- come from real and personal property was to be ex- cluded (23). Section 4. Advisory Opinions. § 47. Nature and effect of advisory opinions. As pre- viously explained in this chapter, it is usually held un- congtitutional to require the courts to give opinions to the other departments of the government for their con- venience in advance of actual litigation, as such opinions have not a judicial character. The constitutions of a few states, however, expressly require the rendition of such opinions by the highest court of the state at the request of the governor or legislature. Even in these cases such opinions do not acquire a judicial character and bind the (23) Pollock V. Farmers* Loan & Trust Co., 158 U. S. 601. GENERAL CONCEPTIONS 49 court as precedents. Being ordinarily rendered without the arguments of counsel, the court is far less likely to consider all phases of the question; and so, even though it may have given an opinion in favor of the validity of the proposed law to the executive or legislature, it holds itself free to reconsider the question entirely on its merits, if it afterwards comes before the court in actual liti- gation (24). Opinions thus given to assist other departments of gov- ernment in the discharge of duties are called ''advisory opinions," and the better usage of government in this country tends to discourage the practice of giving them. It is thought, with reason, likely to draw the judges into the heat of partisan controversies and to impair public confidence in their impartiality, without any correspond- ing advantage. (24) Green v. Commonwealth, 12 Allen, 155. Note.— There is no omission of material here. The next subsections begin with number 62. Owing to a mistake in the plates, there are no sub- sections numbered from 48 to 61. PART II. FUNDAMENTAL RIGHTS. CHAPTER m. HISTORY AND SCOPE OF FUNDAMENTAL CONSTITUTIONAL RIGHTS. S.i:cTioN 1. Classification of Constitutional Pro- visions. § 62 (1) Provisions establishing the frame of govern- ment. Broadly speaking, the provisions of American constitutions, state and national, fall into four great classes: 1. Provisions dealing with the frame of government itself. Of this character are those clauses of our consti- tutions that divide the government into departments, pro- vide fof ofificials, regulate their qualifications, duties, and the modes of choosing them, distribute the powers of gov- ernment between the various departments, and provide for the manner of their exercise. These provisions are mainly political in their nature, and the careful discus- sion of them belongs rather to the subject of political science than to the law of private rights. They will there- fore receive little attention in this article. § 63. Provisions guaranteeing fundamental private rights. 2. Provisions securing certain fundamental po- litical, religious, and civil rights to citizens or other per- (1) See note on page 49. cq FUNDAMENTAL RIGHTS 51 sons within the jurisdiction, mainly by prohibiting the exercise of governmental powers to the prejudice of these rights. These are the parts of our constitutions supremely important to the individual, and these are the ones treated at greatest length in this article. Both the United States and the states are forbidden to infringe these fundamental rights. The prohibitions upon the United States are of course contained in the United States constitution. Those upon the states are partly in the United States constitution and partly in the separate state constitutions. For convenience, similar prohibitions, whether upon the United States or the states, will be treated together, although the illustrations used will be drawn so far as possible from the decisions of the United States Supreme Court. For instance, the Fifth amend- ment of the Constitution forbids the United States to deprive anj^one of liberty without due process of law. The Fourteenth amendment of the Constitution forbids any state to deprive a person of liberty without due process of law. All of the state constitutions likewise forbid their governments to deprive anyone of liberty without due process of law. It may be alleged, therefore, that the United States has violated the Fifth amendment ; or that a state has violated either the Fourteenth amend- ment or its own state constitution, and upon similar states of fact it is very likely that similar decisions will be given in regard to each of these three separate allegations. Sim- ilar prohibitions, no matter in what constitution found, may thus with propriety and convenience be considered together. 52 CONSTITUTIONAL LAW. § 64. Provisions regulating intergovernmental rela- tions under our Federal system. 3. Provisions regulating the relations of the states to each other, to the United States, and to foreign states. They define the govern- mental spheres of the states and the United States and provide for the interrelations that exist in our peculiar Federal system. These provisions of our constitutions are considered at some length in this article, as a knowl- edge of them is necessary not only to a comprehension of our political system, but in many eases to an understand- ing of the substance of individual rights themselves. § 65. Provisions regulating government in detail. 4. Provisions regulating in detail the exercise of power, both as to substance and procedure by the various departments of government. The early American constitutions con- tained relatively few of these provisions, being satisfied to secure fundamental rights from governmental aggres- sion and to leave the state governments a free hand in other respects. The later state constitutions have im- mensely increased the scope and detail of such regula- tions. In very recent state constitutions the greater part of a lengthy instrument of government is taken up by such provisions, which not only deprive the principal gov- ernmental departments of a large proportion of their dis- cretionary powers, but make it increasingly difficult to enact any important legislation whatever that shall not violate some one of a multitude of petty restrictions. Not a little of the superior efficiency of the Federal govern- ment is due to the fact that the United States Constitu- tion was adopted before such a minute regulation of the FUNDAMENTAL RIGHTS 55 powers of government became customary. This article will not deal at all with constitutional provisions of this character. Section 2. State and Fedeeal ConstitutionaIj Guae- ANTiEs Before 1865. § 66. Early state constitutions and orig^al Federal Constitution. When the United States Constitution was adopted in 1788, each of the thirteen original states had a constitution of its own, containing a number of funda- mental guaranties of liberty and property, in the form of prohibitions upon the various departments of its state government. These prohibitions were commonly collected in one place in each constitution and collectively were called "Bills of Eights." The national government cre- ated by the Constitution was given extensive powers, and then several prohibitions were placed upon particular methods of exercising these powers. In the original Con- stitution these prohibitions are mainly to be found in Article I, section 9. Most of these prohibitions were not to secure fundamental personal rights, but had certain political, administrative, economic, or social purposes. Two prohibitions in section 9, however, secured funda- mental rights from aggression by the Federal govern- ment. These forbid the suspension of the writ of habeas coi'pus, except in case of rebellion or invasion, and pro- hibit bills of attainder and ex post facto laws. § 67. Federal bill of rights. Amendments I to X. One of the principal objections urged against the adop- tian of the Constitution by the states was its failure to 54 CONSTITUTIONAL LAW. provide a more extensive bill of rights, and its opponents pointed out that there was nothing to prevent the pro- posed national government, while acting within the scope of its extensive national powers, from confiscating prop- erty, or abolishing jury trials, or forbidding free speech, or even from putting men to death by executive order without a trial. In several states the opposition to the new Constitution was so strong that its adoption was only secured by the assurance of its advocates that amend- ments to it should be speedily adopted incorporating an adequate bill of rights. Accordingly, one of the early acts of the new government was the submission to the states of a number of amendments for this purpose, and ten of these were ratified by the necessary number of states so that they became a part of the Constitution in 1791. These were amendments one to ten (see Appendix B). They secured to the people of all of the states as against the United States government the principal fundamental rights which the people in their own state constitutions had secured against their state governments. It has been repeatedly decided that the prohibitions of the first ten amendments apply only to the Federal government, not to the states (la). § 68. Federal prohibitions upon the states before 1865. The original Constitution contained a few express pro- hibitions upon the action of the state governments. The objects sought by these were mainly political, commer- cial, or connected with interstate comity. See Article I, (la) Barron v. Baltimore, 7 Pet. 243. FUNDAJVIENTAL RIGHTS 55 section 10, and Article IV, sections 1 and 2. Of a polit- ical character, for instance, were the prohibitions in Arti- cle I, section 10, forbidding the states to enter into any treaties or agreements with other states or foreign pow- ers, or to keep troops or ships of war in times of peace, or to engage in war unless in actual peril of invasion. Of a commercial character were the prohibitions in the same section against coining money, emitting bills of credit, making anything but gold and silver coin a legal tender, taxing imports or exports, or levying tonnage duties. Designed to secure interstate comity were the prohibi- tions in Article IV, sections 1 and 2, that each state should give full faith and credit to the public acts, records, and judicial proceedings of every other state; that the citi- zens of each state should be entitled to all privileges and immunities of citizens in the several states ; and that fugi- tives from justice and escaping slaves from any state •should be delivered up in the other states. But the only prohibitions in the original Constitution designed to pro- tect state citizens in their fundamental rights against the aggressions of their own state governments were the pro- hibitions in Article I, section 10, against a state 's passing bills of attainder, ex post facto laws, or laws impairing the obligation of contracts. Even the last of these was intro- duced chiefly on account of commercial considerations, for there may be many laws impairing the obligation of con- tracts, like bankruptcy laws, for instance, that do not deprive men of fundamental rights. The framers of the Constitution had abundant faith that the inhabitants of each state might be trusted to protect themselves in their 56 CONSTITUTIONAL LAW. own state constitutions against their own state govern- ments, and that it was not necessary for the nation to protect individual rights against local tyranny. The pro- hibitions against bills of attainder and ex post facto laws were doubtless largely designed to protect resident loyal- ists who had adhered to Great Britain during the Revolu- tion, and so were evoked by the demands of a passing political situation rather than by a conviction that the state governments could not ordinarily be trusted in these respects as regards their own citizens. The Eleventh Amendment, adopted in 1798, enlarged the immunity of the states by protecting them from the suits of individ- uals, except with their consent ; and the Twelfth Amend- ment, adopted in 1804, merely regulated the details of presidential elections. Section 3. Scope or Later Amendments to Fbdebaij Constitution. § 69. Thirteenth Amendment. It was not until three generations after the adoption of the Constitution and in the heat of passion engendered by a great civil war that the power of the states was further restricted by con- stitutional amendment. The existence of slavery caused the Civil war, and it was inevitable that the institution should not survive the victory of the north. Lee surren- dered in April, 1865, and on December 18th of the same year the Thirteenth Amendment, duly ratified by three- quarters of the states, was proclaimed to be in force as a part of the United States Constitution. The amend- ment reads: FUNDAMENTAL RIGHTS 57 "Section 1. Neither slavery nor involuntary servi- tude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. ** Section 2. Congress shall have power to enforce this article by appropriate legislation." This amendment, as has been frequently said, is self- executing so far as its terms are applicable to any exist- ing state of circumstances. By its own phrases it abol- ished slavery and established freedom, and the power of Congress to enforce it authorizes the direct punishment by the Federal government of all persons who enslave or attempt to enslave others. It operates directly upon all individuals within the jurisdiction of the United States (2). State legislation authorizing slavery, and all acts of individuals tending to establish it, whether authorized by state law or not, are void and illegal, and all individual acts in pursuance thereof may be punished by the United States. See §§ 101-4, below. §70. Adoption of Fourteenth Amendment. A brief experience sufficed to show that while the Thirteenth Amendment had freed the slaves it would not protect them against a multitude of oppressive and discrimina- ting laws, which were likely to be enacted with reference to the late bondmen as soon as the dominant elements of the white population in the southern states regained con- trol of their state governments. To prevent this, among other purposes, the Fourteenth Amendment was proposed (2) Clyatt V. U. S., 197 U. S. 207, 216-7, quoting from Civil Rights Cases, 109 U. S. 3. 58 CONSTITUTIONAL LAW. aud was proclaimed to be in force in July, 1868. Sections 1 aud 5 of this are of pennanent and increasing impor- tance. They read as follows : *' Section 1. All persons bom or naturalized in tlie United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citi- zens of the United States ; nor shall any state deprive any person of life, liberty, or property, without due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws. ' ' Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." § 71. Analysis of Fourteenth Amendment. The citi- zenship clause in the Fourteenth Amendment is discussed in Chapter IV, §§ 76-85, below. The remaining clauses in section 1 contain three sweeping prohibitions upon state governmental action; (1) no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; (2) no state shall deprive any person of life, liberty, or property, without due proc- ess of law; (3) no state shall deny to any person witltn its jurisdiction the equal protection of the laws. The due process clause is copied from the Fifth Amendment, whe^-e it is a prohibition upon the United States government. The other two clauses impose limitations upon the state governments that are not expressly imposed upon the United States government in any other part of the Consti- tution. Each of thefee clauses will be made the subject of FUNDAMENTAL RIGHTS 59 a separate discussion in other parts of this article and the last two clauses are of such immense importance that they will form the subject of several chapters. Just here we shall inquire against whom these provisions are en- forceable by Congressional legislation. § 72. Fourteenth Amendment forbids state action only. In 1875 Congress i^assed a law known as the Civil Rights act. It provided that all persons in the United States should be entitled to equal privileges in inns, public con- veyances, and public places of amusement, without dis- crimination on account of race, color, or previous condi- tion of servitude. Any person who denied such equal privileges to others was made guilty of an offence against the United States and liable in damages to the person ag- grieved. Various persons were indicted under this stat- ute for denying to negroes equal privileges in hotels, theatres, and upon railroad trains. Their cases were car- ried to the United States Supreme Court and the statute was held unconstitutional. The court said, in discussing the character of the provisions in the Fourteenth Amendment : *'It is state action of a particular character that is pro- hibited. Individual invasion of individual rights is not the subject-matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all state legislation, and state action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws. It not only does this, 60 CONSTITUTIONAL LAW. but, in order that the national will, thus declared, may not be a mere brutum t'ulmen, the last section of the amend- ment invests Congress with power to enforce it by appro- priate legislation for correcting the effects of such pro- hibited state laws and state acts, and thus to render them effectually null, void, and innocuous. This is the legisla- tive power conferred upon Congress, and this is the whole of it. . . . And so in the present case, until some state law has been passed, or some state action through its oiScers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity; for the prohibitions of the amendment are against state laws and acts done under state authority. . . . An inspection of the law shows that it makes no reference whatever to any supposed or apprehended violation of the Fourteenth Amendment on the part of the states. ... It steps into the domain of local jurisprudence and lays down rules for the con- duct of individuals in society towards each other, and imposes sanctions for the enforcement of those rules, without referring in any manner to any supposed action of the state or its authorities. . . . "In this connection it is proper to state that civil rights, such as are guaranteed by the Constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any FUNDAMENTAL RIGHTS 61 such authority, is simply a private wrong, or a crime of that individual ; an invasion of the rights of the injured party, it is true, whether they affect his person, his prop- erty, or his reputation ; but if not sanctioned in some way by the state, or not done under state authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the state for redress.'* § 73. What amounts to state action. It being well settled that the prohibitions in the Fourteenth Amend- ment, section 1, apply to the states rather than to individ- uals, it remains to be considered what kind of action is treated as that of a state for the purpose of the amend- ment. A United States statute forbade any oflScer charged with the duty of summoning jurors to exclude any citizen on account of race, color, or previous condi- tion of servitude. A Virginia county judge, although not authorized thereto by Virginia law, excluded all colored men from the juries selected by him. Upon the question whether his act was that of the state, so that he could be punished under this statute, the court said : ''The prohibitions of the Fourteenth Amendment are addressed to the states. . . . They have reference to actions of the political body denominated a state, by whatever instruments or in whatever modes that action may be taken. A state acts by its legislative, its execu- tive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the state or of the oflficers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Vol. XU— 6 62 CONSTITUTIONAL LAW. AVhoever, by virtue of public position under a state gov- erumcut, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional in- hibition ; and as he acts in the name and for the state, and is clothed with the state's power, his act is that of the state. This must be so, or the constitutional prohibition has no meaning" (4). The Fourteenth Amendment therefore enables Congress to act against individuals only in so far as the latter are acting in an official capacity as representatives of a state. Acts of a state in violation of the Fourteenth Amend- ment are void and may be disregarded with impunity by persons affected by them, but Congressional action can go no farther than indicated. § 74. What are privileges and immunities of citizens of United States? The second sentence of the Fourteenth Amendment, section 1, provides, * ' No state shall make or enforce any law which shall abridge the privileges or im- munities of citizens of the United States." With the other clauses in the section this one was adopted primarily to protect the newly freed slaves from oppression at the hands of the state governments in the south. It is, per- haps, doubtful just what privileges or immunities were meant to be protected from abridgment by those who proposed the amendment. The Congressional debates of the time leave the matter in doubt, and perhaps most of (3) Civil Rights Cases, 109 U. S. 3, 11 ff. (4) Ex parte Virginia, 100 U. S. 339. FUNDAMENTAL RIGHTS 63 those who voted for the amendment had no clear concep- tion of the exact scope of this clause. The first case under the Fourteenth Amendment brought before the Supreme Court involved the meaning of this clause. Louisiana passed a law forbidding indi- viduals to maintain slaughter houses in New Orleans and its vicinity, and conferred upon a single corporation the exclusive right for twenty-five years to maintain in this territory places for killing animals for meat. Various individual butchers alleged that this law deprived them of the privileges and immunities guaranteed by this clause of the Fourteenth Amendment. The Supreme Court said: *'It is quite clear that there is a citizenship of the United States, and a citizenship of the state, which are distinct from each other. . . . The paragraph mainly relied upon by the plaintiffs speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. ... It is only the former which are placed by this section under the protection of the Federal Constitution, and the latter, whatever they may be, are not intended to have any ad- ditional protection by this paragraph of the amendment. . . . The first occurrence of the words * privileges and immunities * in our constitutional history is to^ be found in the Fourth Article of the old Confederation. . . . In the Constitution of tlie United States, the correspond- ing provision is found in section 2 of tfie Fourth Article in the following words : * The citizens of each state shall be entitled to all of the privileges and immunities of citi- 64 CONSTITUTIONAL LAW. zens of the several states.* . . . Up to the adoption of the recent amendments, no claim or pretense was set up that those rights depended on the Federal government for their existence or protection, beyond the veiy few express limitations which the Federal Constitution imposed upon the states — such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. . . . Was it the purpose of the Fourteenth Amendment, by the simple declaration that no state should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the states to the Federal government! And where it is de- clared that Congress shall have the power to enforce that article, was it intended to bring within the power of Con- gress the entire domain of civil rights heretofore belong- ing exclusively to the states? ''All this and more must follow, if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by state legislation, but that body may also pass laws in ad- vance, limiting and restricting the exercise of legislative power by the states, in their most ordinary and usual functions, as in its judgment it may think joroper on all such subjects. . . . The argument, we admit, is not iUways the most conclusive which is drawn from the con- sequences urged against the adoption of a particular con- struction of an instrument. But when, as in the case be- FUNDAMENTAL RIGHTS 65 fore us, these consequences are so serious, so far reaching and pervading, so great a departure from the structure and spirit of our institutions ; when the effect is to fetter and degi'ade the state governments by subjecting them to the control of Congress in the exercise of powers hereto- fore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the state and Federal governments to each other and of both these gov- ernments to the people ; the argument has a force that ia irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt" (5). Privileges and immunities of citizens of the United States are those derived from the Federal government. Constitution, and laws, like the right to use the navigable waters of the country, to engage in interstate commerce, to demand Federal protection when out of the country, to become a citizen according to the Fourteenth amendment, and the other rights secured by the Thirteenth, Four- teenth, and Fifteenth Amendments. While the Supreme Court has since the Slaughter House cases given to other parts of the Fourteenth Amendment a more extended application than perhaps was then foreseen, the decision in the Slaughter House cases is usually regarded as important, in that it checked at the outset a natural tendency towards rapid centraliza- tion in the government, growing out of the events of the Civil war. (6) Slaughter House Cases, 16 Wall. 36. GG CONSTITUTIONAL LAW § 75. Fifteenth Amendment. This amendment to the Constitution contains a prohibition against both the states and the United States. It was adopted in March, 1870, in the following words : "Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previ- ous condition of servitude. ' * Section 2. The Congress shall have power to enforce this article by appropriate legislation." This, like the Fourteenth Amendment, is in terms a pro- hibition upon governmental action, not upon the action of individuals who are not acting as official representa- tives of the state or Federal governments. It has ac- cordingly been held that this amendment gives Congress no power to punish individuals who by bribery or intimi- dation prevent colored men from voting in a state (6). Congress could, of course, punish individuals for miscon- duct at Federal elections, because the Constitution (Art I, sec. 4) gives Congress power to regulate these; but the Fifteenth Amendment confers no such power upon Con- gress as to elections generally. (6) James v. Bowman, 190 U. S. 127. CHAPTER IV. POLITICAL RIGHTS. Section 1. Citizenship. § 76. Federal citizenship before Fourteenth Amend- ment. The basis of English nationality under the com- mon law was birth within the allegiance of the British crown and subject to its protection. Children of aliens, if born within the British dominions, were natural-born subjects of the crown. When the United States Constitu- tion was adopted it recognized a citizenship of the United States, but made no attempt to define it. Representatives and senators, for instance, were required to have been respectively seven and nine j'^ears citizens of the United States, and the President was required to be " a natural- born citizen or a citizen of the United States at the time of the adoption of this Constitution." As regards white persons, at least, it has been judicially afiSrmed that the English rule of nationality by birth was in force in all i of the English colonies of America and in the United States afterwards (1). Before the Civil war several states had expressly recognized free negroes as citizens, ! but in the Dred Scott case three judges were of the opin- ion that no native born slave or descendant of slave par- (1) United States v. Wong Kim Arlj, 1G9 U. S. 649, 658. 67 68 CONSTITUTIONAL LAW. ents could become a citizen of the United States by birth, on account of Article IV, section 2, of the Constitution, which requires each state to give equal privileges to the citizens of other states. It was thought that the slave states could not have intended a contrary doctrine when ratifying the Constitution (2). ^ 77. Citizenship by birth under Fourteenth Amend- ment. After the war a definition of citizenship was made in the Fourteenth Amendment, which provides: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." Under the Chinese exclusion acts the question arose whether a child of alien Chinese parents born in Cali- fornia was a citizen of the United States, and therefore not deportable under the exclusion acts. It was held that he was a United States citizen, although his parents could not have been naturalized under the existing laws, and that the Fourteenth Amendment enacted into the Consti- tution the English rule of nationality by birth within the allegiance (3). § 78. Limitations upon citizenship by birth. The Fourteenth Amendment, however, by its own terms falls somewhat short of conferring citizenship upon everyone born within the dominions over which the United States government is sovereign. To come within the Fourteenth Amendment, a person must be born "within the United States" and must also be "subject to the jurisdiction (2) Dred Scott v. Sandford, 39 How. 393, 404-23. (3) United ytates v. Wong Kim Arli, 169 U. S. 649. FUNDAMENTAL RIGHTS 69 thereof." These phrases suggest limitations upon citi- zenship by birth that now demand consideration. §79. Meaning of "born within the United States." What do the words ''United States" mean in the citizen- ship clause of the Fourteenth Amendment? Several dif- ferent meanings might be attributed to them. 1. They might mean only the states that have been admitted to the Union. In this view, a person born in one of the terri- tories, like Hawaii or Alaska, would not be a citizen by birth by reason of the Fourteenth Amendment, though he might be through some act of Congress. 2. The words may mean the admitted states plus such other territory as may have been made by statute or treaty an integral part of our country, as contrasted with territory that is still held in the condition of a colony. Under this theory the territory of Alaska, having been incorporated into the body of our country by treaty and acts of Congress, would be a part of the United States, but Porto Eico, Guam and the Philippine Islands would not. 3. The words might possibly be construed to include all territory over which our government, either permanently or for an indefinite period, exercises sovereign jDOwers. The inter- pretation, making the words ''United States" the name of the entire American Empire, would give citizenship to everyone born in the ceded Spanish colonies since the treaty of 1898. It is scarcely likely that the latter interpretation will prevail, as the Spanish treaty of peace of 1898 provided in Article 10: "The civil rights and political status of the native inhabitants of the territories hereby ceded to 70 CONSTITUTIONAL LAW. the United States shall be determined by the Congress." The intention of this article apparently is to leave the question of citizenship to the discretion of Congress, rather than to settle it irrevocably under the Fourteenth Amendment, As between interpretations 1 and 2 above, the second is perhaps the more likely to be adopted when the ques- tion arises, especially in view of the theory the Supreme Court has recently adopted concerning the power of the political departments of our government to incorporate territory, although not yet a state, into our country so that it is permanently a part of it, as contrasted with ter- ritory having merely a colonial status. See § 260, below. §80. Persons excluded as not "subject to the juris- diction." "What qualification upon citizenship by birth is introduced by the phrase, "and subject to the jurisdic- tion thereof!" This has been judicially explained to exclude from citizenship five classes of persons who have been actually born within the territorial limits of the United States. The exclusion of four of these classes re- sults from the rules of public international law in view of which the Fourteenth Amendment was adopted and in the light of which it has to be interpreted. The fifth class is one peculiar to our own government, but having an origin and history that as fully entitle it to exclusion as the other four. § 81. (a) Children of diplomatic representatives. By a fiction of international law each organized government, in the absence of its own express statute to the contrary, regards the more important diplomatic representatives FUNDAMENTAL RIGHTS 71 of foreign governments as remaining subject to their own governments only, despite their actual residence in the country to which they are sent. The children of am- bassadors and public ministers, therefore, although bom within the United States, are not "subject to the jurisdic- tion thereof" and so are not citizens of the United States. This exemption, however, does not apply to the children of consuls nor to other foreign agents whose duties are not diplomatic. Of course it would apply to the principal executive officers of foreign nations themselves. 82. (b) Children born on foreign public vessels. Similarly the public vessels of a foreign country are deemed by international law to remain subject to the juris- diction of their own flag, even though wholly within the domestic waters of another country. Children bom upon such vessels in United States waters, therefore, are not citizens of the United States. The principal class of pub- lic vessels is ships of war, though any other vessel repre- senting the sovereignty of a nation is similarly treated. Private vessels are not within the rule. § 83. (c) Children of public enemies in hostile occupa- tion of territory. The children of enemies bom during the hostile occupation of our territory are not born sub- ject to the jurisdiction of the United States. The place of their birth is not at the time actually subject to our governmental control, and the parents, being hostile ene- mies, owe no allegiance to our government. This situa- tion existed in Castine and other towns of eastern Maine during the war of 1812, when the eastern part of that 72 CONSTITUTIONAL LAW. btate was for some time In the actual control of British troops. § 84. (d) Expatriated persons. Persons who, though born or naturalized in the United States, have renounced their allegiance to our government with its consent, and have thus dissolved their political connection with the country, are no longer citizens. Such renunciation is called expatriation, and is now permitted, subject to cer- tain qualifications, by most civilized governments. It was expressly recognized by Congress in 1868 (4). § 85. (e) Tribal Indians. The last class of persons, who, though born within the United States, are not citi- zens, are the tribal Indians. When the Constitution was adopted, large tracts of territory within the United Statee were occupied by still powerful Indian tribes, the mem- bers of which regarded themselves as owing a direct al- legiance to the tribe, rather than to the United States government. In an international sense these tribal In- dians were subject to the jurisdiction of the United States because they were within our boundaries and did not owe allegiance to any foreign power, yet our state and national governments had always dealt with these tribes upon the footing of their quasi-independence. Treaties were made with them, defining their commercial and territorial rights, and until very recently all of our government's dealings with the Indian tribes were carried on in this anomalous fashion. Historically, therefore, tribal In- dians, so long as the tribal relation continued, were not regarded as subject to the jurisdiction of the United (4) U. S. R. S. § 1999-2000. FUNDAMENTAL RIGHTS 73 States within the meaning of the citizenship clause of the Fourteenth Amendment. A tribal Indian who volun- tarily left his tribe and took up his residence among white citizens in a state, and adopted the habits of civilized life, could not thereby become a citizen of the United States without the consent of Congress (5). In 1887 a United States statute conferred citizenship upon such Indians as thereafter should separate them- selves from their tribes and adopted the habits of civil- ized life. § 86. Status of native inhabitants of ceded Spanish colonies. Assuming that the native inhabitants of the ceded Spanish colonies are not citizens of the United States, it is apparent that they are not aliens, inasmuch as they owe complete allegiance to our government as the sole sovereign of the territory in which they reside. This has already been decided by the United States Supreme Court (6). Their relation to our government is similar to that of British subjects in the colonies of the British Empire. They owe complete allegiance and are fully subject to the control of our national government, but they have not the full rights of citizenship. The word ''subjects^' seems by international usage an appropriate term for persons in their condition, but there has been some reluctance to use it, perhaps because the term is ! distasteful to American political susceptibilities. The (5) Elk V. Wilkins, 112 U. S. 94. (6) Gonzales v. Williams, 192 U. S. 1. 74 CONSTITUTIONAL LAW. word "nationals" lias been suggested for use as a sub- stitute (7). § 87. Status of corporations. Corporations are not citizens within the meaning of any clause of the Constitu- tion, except that giving the Federal courts jurisdiction of suits between citizens of different states (8). For the interpretation of this clause, see §363, below. Section 2. Naturalization. § 88. Exclusive power of Federal government over na- tional citizenship. Article I, section 8, § 4 of the United States Constitution gives Congress power to establish a uniform rule of naturalization. It was decided in 1817 that this power was of such a nature that it ought to be exercised exclusively by the United States, although the Constitution does not expressly deny it to the states (9). Another section of the Constitution (Article IV, section 2) requires each state to grant to the citizens of other states all privileges in it that it permits to its own citi- zens, and it was naturally thought that a single state, without the consent of the others, ought not to be allowed to confer full national citizenship upon aliens who might then demand the rights of citizens in any other state in the Union. The present naturalization laws of the United States permit naturalization only to persons of the white and African races and to inhabitants of our colonies who be- (7) F. R. Coudert, Jr. in 3 Columbia Law Review, 13. (8) Paul V. Virginia, 8 Wall. 168. (9) Chirac v. Chirac, 2 Wheat. 259. FUNDAJtIENTAL RIGHTS 75 come residents of a state or organized territory (10). Mexicans are considered white persons. Japanese and Chinese cannot, at present, become United States citizens unless born in this country. § 89. Collective naturalization. Although statutes commonly require aliens to become naturalized by ma- king individual application to some court or officer and swearing allegiance to the United States government, they may also be naturalized collectively, without any individual proceedings or the requirement of oaths of allegiance. The act of Congress making United Statea citizens of Indians who abandon their tribes, mentioned above (§ 85), is an illustration of this. Another is occa- sionally presented by the terms upon which a new state is admitted to the Union, in which aliens resident therein may be collectively recognized as voters and members of the new political community (11). § 90. Power to confer state citizenship. Before the Fourteenth Amendment it was admitted that a state might confer a local citizenship, valid within that state, upon any person it pleased. It was only the power to make national citizens who might carry their citizenship into other states, that was exclusively for the Federal government (12). The Fourteenth Amendment now pro- vides that persons born or naturalized within the United States shall not only be citizens of the United States, but citizens of the state wherein they reside. It is arguable (10) U. S. R. S. § 2169 ; Acts of 1906, c. 3592. (11) Boyd V. Thayer, 143 U. S. 135. (12) Scott V. Sandford, 19 How. 393, 405-6, 579-80, 586. 76 CONSTITUTIONAL LAW. that this was intended to provide an exclusive method of obtiiiuing state citizenship, as well as United States citizenship, but probably it has not changed the former rule ; at any rate it has not limited the power of Congress to naturalize persons, even though the latter be not at the time of naturalization subject to the jurisdiction of the United States. Children bom abroad of American parents, for instance, are made American citizens by an act of Congress, subject of course to the consent of the country in which they are bom, during the time of their residence there (13). Section 3. Suffrage. § 91. Eaxly qualifications for state suffrage. When the newly-born American states set up independent gov- | ernments in the course of the Revolutionary war, the written constitutions which they adopted contained care- ful definitions of the inhabitants admitted to the suffrage. In the main, suffrage was restricted to white male free- men, above the age of twenty-one years, who could sat- isfy a substantial property qualification. In Massachu- setts, for instance, voters had to have a freehold estate , of the annual income of three pounds, or other estate of the total value of sixty pounds. § 92. Original provisions of Federal Constitution. Tho United States Constitution did not jmrport to interfere with the absolute control of each state over the suffrage of those who voted for state officers. Not only was this left unrestrictedly in the hands of the states, but even I (13) rnited States v. Wong Kim Ark, 169 U. S. 649, 688. FUNDAMENTAL RIGHTS 77 the qualifications of electors who voted for members of Congress were left in the control of each state by the provision: **The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures." (Article I, section 2.) Article I, section 4 of the Constitution, provides that ' ' the times, places, and manner of holding elections for sena-i tors and representatives shall be prescribed in eacb state by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the place of choosing senators. ' ' Under this clause the Federal power to regulate congressional elections was fully upheld during the Reconstruction period under the so-called ''Force bill" (14). As regards presidential electors, the Constitution says (Article II, section 1, §§ 2, 4) : "Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of sena- tors and representatives to which the state may be entitled in the Congress ; but no senator or representative, or per- son holding an office of trust or profit under the United States, shall be appointed an elector. . . , The Con- gress may determine the time of choosing the electors and the day on which they shall give their votes ; which day shall be the same throughout the United States." The small control that the Constitution gives to the United States over the election of its chief executive is noticeable. The present method of choosing presidential (14) Ex parte Yarbrough, 110 U. S., 651. Vol. xn— 7 78 CONSTITUTIONAL LAW. electors iu tlie states by a direct vote of the people bap- pens to be imiforin throughout our states, merely because similar democratic tendencies have been at work in each of them. The present practice depends upon no uniform Federal law, nor could Congress constitutionally enact such a law. At first presidential electors were chosen by the state legislatures, and South Carolina did not abandon this practice until after the Civil war. So completely is the control of this matter left with the states that the United States Supreme Court has said concerning presi- dential electors: "They are no more ofiScers or agents of the United States than are members of the state legis- latures when acting as electors of Federal senators, or the people of the states when acting as electors of repre- sentatives in Congress" (15). § 93. Constitutional changes affecting suffrage before Fifteenth Amendment. Between 1800 and 1850 the suf- frage clauses of most of the American states were changed so as to abolish all property qualifications. Only a few states, however, admitted free negroes to the ballot. The vast political and social changes wrought by the Civil war, which in destroying the Confederacy also dragged down the institution of slavery, affected the right of suf- frage throughout the nation. Two important clauses were added to the United States Constitution bearing upon this. In the original Constitution three-fifths of the slaves had been counted in determining the basis of a state's repre- sentation in Congress. The second section of the Four- (15) In re Green, 134 U. S. 377. 379. FUNDAMENTAL RIGHTS 79 teenth Amendment provided that representatives should be apportioned among the states according to their total population, excluding Indians not taxed; but that when the right to vote at state or Federal election was denied to any adult male citizen of the state, except for crime, the state's basis of representation should be proportion- ately reduced. This left any state free to disfranchise any class of persons it saw fit, as before, but penalized such disfranchisement by a loss of representation in Con- gress. In a short time, however, racial antagonism in the southern states assumed such an aspect that many persons believed that the negro freeman must be given the ballot for his defence, and this was also advocated by many others from motives of political partisanship. As a result, the Fifteenth Amendment to the Constitution, was adopted in 1870 in the words : * ' The right of citizens of the United States to vote shall not be denied or abridged by the United States, nor by any state, on ac- count of race, color, or previous condition of servitude. ' * § 94. State limitations upon suffrage since Fifteenth Amendment. The Fifteenth Amendment does not directly confer the right of suffrage upon negroes. So far as this amendment alone is concerned the states are free to re- strict the suffrage for state officers, for members of Con- gress, and for presidential electors in any way they see fit, save only that it must not be on account of race, color, or previous condition of servitude. It does not restrict qualifications of sex, age, education, property, or birth. Recently one or two states have adopted qualifications of education and property, and in addition have provided 80 CONSTITrTIONAL LAW that persons may vote not having these qualifications, provided they are descendants of persons who could vote in any state before January 1, 1867. Persons taking ad- vantage of this latter qualification must register within a limited time. On January 1, 1867, negroes could not vote in any of the southern states and in only four or five other states, where negroes formed a very small percent- age of the population. This so-called "grandfather clause," if constitutional, excludes from the suffrage practically all negroes who do not satisfy the educational and property tests, while admitting to the suffrage most white persons who register within the required time. Lit- erally interpreted, it does not in terms exclude anyone on account of race, color, or previous condition of servi- tude, nor does it in actual operation result in the abso- lute exclusion of all possible negro voters, for resident descendants of the few negroes who could vote in this country in 1867 would be admissible to suffrage as well as whites. It does, however, produce a practical dis- crimination against all negroes who are the descendants of negroes who in 1867 were excluded from suffrage on account of race and color. It is extremely questionable whether such provisions do not violate the Fifteenth Amendment. A state decision in Oklahoma has upheld them, and a lower Federal court in Maryland denied their validity (16). The mere fact that the members of a constitutional con- (16) Atwater v. Hassett, 27 Okla. 292, 308 fL; Anderson v. Myers, 182 Fed. 223. FUNDAMENTAL RIGHTS 81 vention desire so far as possible to exclude a particular race from suffrage will not make qualifications for elec- tors invalid if not really based upon the forbidden dis- tinctions. For instance, an educational qualification in Mississippi will disfranchise a much larger percentage of negroes than of whites and may be frankly adopted be- cause it will have this effect. If honestly administered, however, it is not invalid, because the test applied is really not one of race (17). § 95. Suifrage not a necessary incident of citizenship. A few years after the adoption of the Fourteenth amend- ment a case was carried to the United States Supreme Court from Missouri, based upon that clause of the Four- teenth Amendment which provides : "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.'^ The plain- tiff, a woman, claimed that the right to vote for presiden- tial electors, congressmen, and other officers, was a priv- ilege of citizens of the United States, of whom she was one, and that the Missouri state constitution unconstitu- tionally restricted the suffrage to male citizens. The court decided that, while there was no doubt that women I might be citizens of the United States and of a state, either by birth or by naturalization, there was no ground for the claim that the right of suffrage was a privilege I necessarily attaching to citizenship. From the time of ; the adoption of the Constitution qualifications for voting ; had been prescribed by the states, under the Constitution, (17) Williams v. Mississippi, 170 U. S. p. 222. 82 CONSTITUTIONAL LAW. and at uo place had these qualifications ever been the same as tliosc required for citizenship. Requirements of age, sex, proj^erty, religious belief, and education had always excluded a large majority of citizens from the suffrage in various states (18). ^ 96. Relation of suffrage limitations to congressional representation. As stated in § 93 above, the Fourteenth Amendment, section 2, requires Congress to reduce pro- portionately the representation of states that deny the suffrage to adult male citizens for other reasons than participation in crime. In recent years various suffrage qualifications have very much reduced the numbers of electors in several states, but it is argued that the suffrage is not really denied to a person when a qualification is imposed that can be rather easily met. A requirement that a voter register, for instance, would scarcely be called a denial of the suffrage to those who did not choose to register. Similarly it is argued that the requirement of ability to read and write, or the payment of a small poll tax, or perhaps the requirement of a small property qualification can in the main be so readily met that it does not amount to a denial or abridgement of the suffrage in the sense of the Fourteenth Amendment. There is enough strength in this position to leave the matter in genuine doubt, but this argument could scarcely be applied to such a requirement as the one discussed above, discriminating in favor of persons whose ancestors could vote on a cer- tain prior date. Such disability is as permanent as race or color itself. (18) Minor v. Happersett, 21 Wall. 162. FUNDAMENTAL RIGHTS 83 Section 4. Miscellaneous Political Rights. § 97. Republican form of government, invasion, and domestic violence. ''The United States shall guarantee to every state in this Union a republican form of govern- ment, and shall protect each of them against invasion; and on application of the legislature, or executive (when the legislature cannot be convened) against domestic vio- lence" (19). It has been suggested that a republican form of gov- ernment in this provision is intended to be distinguished from monarchical forms on the one side and those of pure democracy on the other, the government by chosen representatives being the principal distinguishing mark (20). If a state chooses to establish and use the initiative and referendum largely in legislation, would such a gov- ernment be republican? The affirmative answer can scarcely be doubted (20a). A local referendum upon various questions like liquor selling or the issue of bonds has often been upheld. Where there are competing governments in the same state it rests with the political departments of the United States to decide which one is legitimate and the courts will not revise this determination (21). § 98. Freedom of speech and press. *' [Congress shall make no law] abridging the freedom of speech or of the press" (22). (19) Const., Art. IV, sec. 4. (20) Cooley, Constitutional Law, 213. (20a) Pacific Sts. Co. v. Oregon, 223 U. S. 118. (21) Luther v. Borden, 7 How. 1. (22) Const., Amend. L 84 CONSTITUTIONAL LAW. This provision "does not permit the publication of \ihv\s, blasphemous or indecent articles, or other publica- tions injurious to public morals or private reputations" (23). The liability of private individuals for defamatory spoken or written utterances is dealt with fully in the article on Torts, Chapter VIII, contained in Volume II of this work. Congress may forbid the circulation in the mails of obscene matter or of lottery advertisements. These constitutional provisions are designed to secure such freedom of public and private discussion, especially in regard to political matters, as may be necessary for the proper formation of public opinion. It does not pro- tect utterances injurious to well recognized private rights or to the public order and welfare (23a). § 99. Right of assemblage and petition. " [Congress shall make no law abridging] the right of the people peacefully to assemble, and to petition the government for a redress of grievances" (24). Neither in terms nor in spirit does this provision pre- vent the government forbidding disorderly assemblages, or those at improper times or places. §100. Right to bear arms. "A well regnilated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be in- fringed" (25). This provision and similar ones in the state constitu- tions refer only to such keeping and bearing of arms as (23) Robertson v. Baldwin, 165 U. S. 275, 281. (23a) See, as to injunctions, Gompers v. Bucli's Stove Co., 221 i:. 3. 418; Marx Co. v. Watson, 168 Mo. 133; Lindsay v. Mont. Fed. Labor, 37 Mont. 264. (2i) Const., Amend. I. (25) Const., Amend. II. FUNDAMENTAL RIGHTS 85 may be necessary to preserve liberty. It does not prevent the prohibition of weapons usually employed in private affrays, nor the prohibition of carrying concealed weapons altogether (26). (26) state t. Workman, 35 West Va. 372. CHAPTER V. PERSONAL AND RELIGIOUS LIBERTY. § 101. Constitutional history of slavery in United States. "When the Constitution was being framed in 1787, slaves and their labor were of sufficient importance to the southern states to make the existence of slavery a source of disagreement in the Philadelphia convention, and sev- eral important clauses of the completed instrument bear witness to the influence of these controversies. Probably some natural feeling of repugnance excluded the words ''slave" or ''slavery" from the original Constitution and its early amendments, but in several places the institu- tion was obviously referred to by circumlocutions. (See Article I, section 2, §3; section 9, §1; Article IV, section 2, § 3.) By the Missouri compromise of 1820, by which Mis- souri was admitted to the Union, Congress forbade the existence of slavery in any of the territories north of 36° 30' north latitude. The Constitution gave the United States no control over slavery as a domestic institution within a state, and the political controversies over the institution, that marked the generation between 1820 and the Civil war, raged about the policy and power of Con- gress to prohibit its existence in territory not yet ad- mitted into the Union, and the recovery of fugitive slaves 86 FUNDAMENTAL RIGHTS 87 from the free states. In the famous Dred Scott case a majority of the Supreme Court of the United States were of the opinion, though this was not necessary to the de- cision of the case, that the Missouri Compromise act was unconstitutional in so far as it forbade slave owners from taking their slaves into the territories of the United States. Congress being forbidden to take property with- out due process of law, it was reasoned that a slave owner was as much entitled to be protected in his slave prop- erty in the territories, as if he were the owner of a wagon and mules (1). The Civil war speedily followed, and its first constitutional fruit was the enactment of the Thirteenth Amendment, which prohibited slavery or involuntary servitude, except as a punishment for per- sons convicted of crime, within the United States or any place subject to their jurisdiction. This amendment be- came effective December 18, 1865. See §69, above. § 102. What constitutes slavery? Compulsory service of sailor. There have been few cases judicially constru- ing this amendment. In Robertson v. Baldwin (2), in 1897, the question arose whether a seaman who had vol- untarily agreed to complete a voyage could be constitu- tionally compelled to return to his ship against his will before the completion of the voyage. The question was thus stated by the court: **Does the epithet 'involuntary* attach to the word 'servitude' continuously, and make illegal any service which becomes involuntary at any time during its exis- (1) Dred Scott v. Sandford, 19 How. 393. (2) Robertson v. Baldwin, 165 U. S. 275. S8 CONSTITUTIONAL LAW. fence; or doos it attach only at the inception of the servi- tude, and clmracterize it as unlawful because unlawfully entered into? . . . The prohibition of slavery in the Thirteenth Amendment is well known to have been adopted with reference to a state of affairs which had existed in certain states of the Union since the foundation of the government, while the addition of the words 'in- voluntary servitude' were said in the Slaughterhouse oases, 16 Wall. 36, to have been intended to cover the system of Mexican peonage and the Chinese coolie trade, the practical operation of which might have been a re- vival of the institution of slavery under a different and less offensive name. It is clear, however, that the amend- ment was not intended to introduce any novel doctrine with respect to certain descriptions of service which have always been treated as exceptional, such as military and naval enlistments; or to disturb the right of parents and guardians to the custody of their minor children or wards." The court then showed that the contract of a sailor had always been treated as exceptional and the sailor compellable not to desert during the continuance of the voyage, and therefore decided the Thirteenth Amend- ment did not apply. § 103. Same: Compulsory service to discharge debt. In Clyatt v. United States (3), the question was con- sidered whether the Thirteenth Amendment applied to the compulsory enforcement of a person's agreement to (3) 197 U. S. 207. FUNDAMENTAL RIGHTS 89 render ser^dce in the discharge of a debt, sometimes called peonage. The court said : ''What is peonage? It may be defined as a status or condition of compulsory service, based upon the indebted- ness of the peon to the master. . . . Peonage is sometimes classified as voluntary or involuntary, but this implies simply a difference in the mode of origin, but none in the character of the servitude. The one exists vrhere the debtor vohmtarily contracts to enter the service of his creditor. The other is forced upon the debtor by some provision of law. But peonage, however created, is com- pulsory service, involuntaiy servitude. A clear distinction exists between peonage and the voluntary performance of labor or rendering of services in payment of a debt. In the latter case the debtor, though contracting to pay his indebtedness by labor or service, and subject like any other contractor to an action for damages for breach of that contract, can elect at any time to break it, and no law or force compels performance or a continuance of the service. We need not stop to consider any possible limits or exceptional cases, such as the service of a sailor, or the obligations of a child to its parents, or of an ap- prentice to his master, or the power of the legislature to make unlawful and punish criminally an abandonment by an employe of his post of labor in any extreme cases." The court therefore held such involuntary service to be slavery and forbidden by the Constitution. § 104. Sam.e: Imprisonment for breach of labor con- tract. Recently South Carolina passed a statute punish- ing by fine and imprisonment any one who wilfully and 90 CONSTITUTIONAL T;AW without just cause broke a contract to labor on farm laud. The Federal district court in South Carolina held this was substantially the same as peonage, because com- pelling the laborer, under penalty of imprisonment, to continue in involuntary servitude (4). The United States Supreme Court later decided in a case from Alabama that the breach of a contract to render personal service may not be made criminal without violating the Thir- teenth Amendment (4a). § 105. Religious liberty. ' ' Congress shall make no law respecting an establishment of religion, or prohibit the free exercise thereof" (5). A similar provision is found in most of the state con- stitutions. These prohibitions do not forbid laws re- garding the observance of Sunday, punishing blasphemy, or forbidding polygamy, although the latter may be al- leged to be a religious observance (6). Legislation rea- sonably designed to promote the peace, good order, and morals of society is not invalid because it interferes with the external acts of a religious society. Reading the Bible in the public schools, without sectarian comment; is usually held not to be a violation of the religious liberty clause of American constitutions, though particular state constitutions may be so strictly drawn as impliedly to for- bid even this (7). (4) Ex parte Drayton, 153 Fed. 9SG (4a) Bailey v. Alabama, 219 U. S. 219 (5) Const., Amend. I. (6) Reynolds v. United States, 98 U. S. 163. (7) See People v. Bd. of Education, 245 111. 334. CHAPTER VI. PROTECTION TO PERSONS ACCUSED OF CRIME. § 106. Introduction. A considerable number of provi- sions in the bills of rights of both Federal and state con- stitutions are designed to afford protection to persons accused of crime. Today we are so familiar with the difficulty of successfully convicting persons charged with serious crime that it is hard to realize that there was a time when alleged criminals found difficulty in securing fair treatment from the government. The elaborate safe- guards provided by our constitutions for such persons are due historically to the operation of at least three different circumstances. In the first place, the procedure of the early English criminal law was harsh and oppressive to the defendant. In the second place, a large proportion of all crimes, even of a trivial nature, were punishable by death. Stealing property above the value of five shillings was thus punishable in England into the early part of the nineteenth centuiy. In the third place, the criminal law was often oppressively used by the English government in securing the conviction of its opponents for political crime. When our early constitutions were formed, the abuses and rigor of the English criminal law were fresh in the minds of American statesmen and they sought to prevent the re-occurrence of such things in this country. 91 Pi CONSTITUTIONAL LAW. Section 1. Bili^ of Attainder and Ex Post Facto Laws. § 107. Bills of attainder. The United States Consti- tution, Article I, section 9, § 3, prohibits the United States from passing any bill of attainder or ex post facto law. Article I, section 10 forbids any state from doing either of these things. These clauses were inserted in the Con- stitution in order to protect persons accused of crime from legislative punishment without a trial and from punishment retroactively imposed. A bill of attainder has been described as * * a legislative act which inflicts punishment without a judicial trial' '(1). A statute of West Virginia denied the right to bring cer- tain suits in the courts of that state to persons who were unable to take an oath that they had never supported any government hostile to the LTnited States during the Civil war. This was adjudged by the United States Su- preme Court to be invalid as a bill oi attainder, in that it was legislative punishment, without a judicial trial, for the offense of engaging in rebellion against the United States (2). § 108. Ex post facto laws: Early definition. Wliile there has been but little litigation over the prohibition of bills of attainder, its companion clause, forbidding the enactment of ex post facto laws has been the subject of frequent judicial interpretation. The words ''ex post facto ' ' mean, in medieval Latin, ' ' after the fact. ' ' Liter- CD Cummings v. Missouri, 4 Wall. 277, 323-4. (2) Pierce v. Carskadon, 16 Wall. 234. FUNDAMENTAL RIGHTS 93 ally applied, the clause would prohibit retrospective legis- lation affecting either civil rights or criminal punish- ments. In its usage in English law the phrase has almost always been restricted to penal statutes, and from the debates in the constitutional convention it appears that this usage was brought to the attention of the members of the convention. In the earliest case construing this clause that came before the United States Supreme Court, a law of Connecticut was challenged as ex post facto which gave a new trial to a party after he had once been finally defeated upon the probate of a will as the law stood at the time of the first trial. That court held that the clause applied only to certain classes of retro- spective criminal statutes. Judge Chase said: *'I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal ; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender. . . . But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal law ; but only those that create, or aggravate, the crime ; or increase the pun- 94 CONSTITUTIONAL LAW. isbment, or change tlie rules of evidence, for the purpose of conviction" (3). § 109. Same: Later definition. The classification of ex post facto laws made in Calder v. Bull above has be- come classic, and has been quoted with approval many- times in both state and Federal courts. Like many defini- tions that have been attempted in advance of a thorough consideration of all possibilities, later decisions have shown it not to be strictly accurate. Some years ago the state of Utah passed a statute for the trial of criminal cases by a jury composed of eight persons. Previously a jury was composed of twelve persons, and several men who were alleged to have committed crimes under the old law were tried for them under the new one before a jury of eight jurors. Although the change of law here ob- viously did not fall within any one of the four classes enumerated in Calder v. Bull, it was adjudged ex post facto and invalid. The court said a penal statute was ex post facto "which by its necessary operation and in its relations to the offense or its consequences, alters the situation of the accused to his disadvantage" (4). Mani- festly it was easier to secure the unanimous vote of eight jurors for conviction than of twelve, and so the situation of the accused was altered to his disadvantage. § 110. What is a mitigation of punishment? Nice questions may sometimes be raised as to whether a law changing the punishment of crime really mitigates it orj not, for if the change is a lessening of the severity of the (3) Calder v. Bull, 3 Dallas, 386. (4) Thompsou v. Utah, 170 U. S. 343, 351, 353. FUNDAMENTAL RIGHTS 95 piinisliment it is unobjectionable. In New York in 1860 the legislature changed the punishment for various crimes from death to life imprisonment. The New York court of appeals held this change to be ex post facto, because it was such an entirely different kind of punishment that they were unable to say that it was less severe. The de- termination of what kind of punishment would generally be preferred by criminals ought not to be left to the opin- ion of the judges (5). On the other hand the Massachusetts supreme court held such a change to be clearly a mitiga- tion of the punishment and so valid (6). Probably the correct view of a change in the manner of punishment is stated by Judge Peckham in a later New York case as follows : ''I think that where a change is made in the manner of punishment, if the change be of that nature which no sensible man could by any possibility regard in any other light than that of a mitigation of the punishment, the act would not be ex post facto where made applicable to the offense committed before its passage" (7). § 111. Changes in procedure. Legislatures frequently make changes in procedure that affect the trial of men !for crimes already committed. Interesting questions of constitutionality are sometimes raised by such statutes. In Missouri, at the time a certain murder was committed, j the law forbade the use in evidence of other writings of the prisoner in order to show whether or not some docu- (5) Shepherd v. People, 25 N. Y. 406. (6) Commonwealth v. Wyman, 12 Cush. 237. (7) People V, Hayes, 140 N. Y. 484, 492. 96 CONSTITUTIONAL LAW. mciit in the case was in bis handwriting. Before trial, the legislature altered this rule and permitted such com- parison of handwritings to be made. This was held valid, the court saying : *'The statute did nothing more than remove an obstacle arising out of a rule of evidence that withdrew from the consideration of the jury testimony which, in the opinion of the legislature, tended to elucidate the ultimate, es- sential fact to be established, namely, the guilt of the ac- cused. Nor did it give the prosecution any right that was denied to the accused. It placed the state and the accused upon an equality; for the rule established by it gave to each side the right to have disputed writings compared with writings proved to the satisfaction of the judge to be genuine. Each side was entitled to go to the jury upon the question of the genuineness of the writing upon which the prosecution relied to establish the guilt of the ac- cused" (8). Similarly statutes changing the place of trial, changing the number of the appellate judges, requiring more in- telligent jurors, and so forth, are valid. They do not necessarily change the situation of the accused to his dis- advantage. On the contrary, they are quite as likely to operate to his advantage as to that of the state, and there- fore they deprive him of no substantial right (8a). § 112. Retroactive quaJifications for a profession. In 1878 one Hawker was convicted in New York of the crime of abortion, and served a term in the penitentiary there- (8) Thompson v. Missouri, 171 U. S. 380, 387-8. (Sa) But see Ey parte AlcCardle, 7 Wall. 506; Mallett t. N. 181 U. S. 587. FUNDAMENTAL RIGHTS &7 for. Afterwards he lawfully practiced medicine in New York until the enactment in 1895 of a statute forbidding any person after conviction of felony to practice medicine in the state. Hawker was indicted for practicing medicine in New York in violation of this statute, and after con- viction took his case to the United States Supreme Court, claiming the law was ex post facto. The court said: "On the one hand it is said that defendant was tried, convicted and sentenced for a criminal offense. He suf- fered the punishment pronounced. The legislature has no power to thereafter add to that punishment. The right to practice medicine is a valuable property right. To d^ prive a man of it is in the nature of punishment, and after the defendant has once fully atoned for his oifense a stat- ute imposing this additional penalty is one simply in- creasing the punishment for the offense, and is ex post facto. "On the other, it is insisted that within the acknowl- edged reach of the police power, a state may prescribe the qualifications of one engaged in any business so directly affecting the lives and health of the people as the prac- tice of medicine. It may require both qualifications of learning and good character, and, if it deems that one who has violated the criminal laws of the state is not possessed |of sufficiently good character, it can deny to such a one ;the right to practice medicine, and, further, it may make ;the record of a conviction conclusive evidence of the fact jof violation of the criminal law and of the absence of the jrequisite good character. . . . We are of the opinion that 98 CONSTITUTIONAL LAW. this argument is the more applicable and must control the answer to this question" (9). § 113. Same: Ex post facto if unreasonable. On the other hand, just after the Civil war, Missouri adopted a constitution disqualifying all persons who took any part in the Rebellion from holding an office in any corporation in the state, being professors or teachers in any educa- tional institution, acting as attorneys at law, or acting as priests or clergymen of any religious denomination, under penalties of fine and imjDrisonment. The conviction of a priest, obtained under this statute, was set aside by the United States Supreme Court. The court said: ''Among the rights reserved to the states is the right of each state to determine the qualifications for office, and the conditions upon which its citizens may exercise their various callings and pursuits within its jurisdiction. . . . It by no means follows that, under the form of creating a qualification or attaching a condition, the states can in effect inflict a punishment for a past act which was not punishable at the time it was committed. . . . "Qualifications relate to the fitness or capacity of the party for a particular pursuit or profession. Webster defines the term to mean * any natural endowment or any acquirement which fits a person for a place, office, or em- plojTnent, or enables him to sustain any character, with success. ' It is evident from the nature of the pursuits and professions of the parties, placed under disabilities by the constitution of Missouri, that many of the acts, from the (9) Hawker v. New York, 170 U. S. 189, 191-2. FUNDAMENTAL RIGHTS 99 taint of which they must purge themselves, have no pos- sible relation to their fitness for those pursuits and pro- fessions. There can be no connection between the fact that Mr. Cummings entered or left the state of Missouri to avoid enrolment or draft in the military service of the United States and his fitness to teach the doctrines or ad- minister the sacraments of his church ; nor can a fact of this kind or the expression of words of sympathy with some of the persons drawn into the Rebellion constitute any evidence of the unfitness of the attorney or counsellor to practice his profession, or of the professor to teach the ordinary branches of education, or of the want of busi- t' of a fair hearing which requires that in every case it 1: need be before a court. In the absence of other constitu- k tional provisions especially requiring particular tribunals, {;. like courts or juries, a state may commit the determina- ^ tion of litigated controversies of all kinds to boards, com- missions, inspectors, or other officers. Due process of law does not even necessarily require that the officers who discharge judicial functions shall not also be connected (17) Bnttnekl v. Strauaban. 192 U. S. 470. See also Oceanic S. Nav. Co. V. Strauaban, 214 T'. S. 320. FUNDAMENTAL RIGHTS 123 with other departments of government. That is, it does not require a separation of the three great departments of government, executive, legislative and judicial. This is required, if at all, by other parts of our constitutions. ''Suppose a state, by its constitution, grants legislative functions to the executive, or to the judiciary, what pro- vision of the Federal Constitution will nullify the action?" (18). Today an ever increasing number of controversies are arising between the government, represented by various boards, commissions, or administrative officers, on one side, and private individuals on the other. These ques- tions, when not of a criminal nature, are coming to be known as "administrative questions" and they are fre- 1 quently required by law to be settled by administrative I officers without permitting any appeal to the courts. \ Among such matters that may be wholly committed to ad- ministrative determination, provided only that there be ' no fraud or other abuse of authority, are the following: I The administration of the public land system, the deter- I mination of lands benefited by irrigation schemes, the , value of property taken by the state for public use, the I classification of the mail and the exclusion of fraudulent matter therefrom, and the appraisal of imported ; goods (19). j (18) Michigan Central Railway v. Powers, 201 U. S. 245, 294. See '; also Dreyer v. lU., 187 U. S. 71, 83-84. . (19) Fall Brook Irrigation District v. Bradley, 164 U. S. pp. I 167-70; Clearing House v. Coyne, 194 U. S. 497; Hilton v. Merritt, 110 I U. S. 97. 124 CONSTITUTIONAL LAW. The most striking application of this principle in re- cent years is in the case of the United States v. Ju Toy. The United States excluded alien Chinese from the United States and gave to the executive officers of the Depart- ment of Commerce the exclusive right to decide all ques- tions of fact relating to the right of Chinese to enter the United States. When Ju Toy sought to enter the coun- try, and alleged that he was a native-bom citizen of the United States who had temporarily left the country and now wished to return, the executive officer of the Depart- ment of Commerce decided that he was not a citizen and excluded him; whereupon he applied to the Federal courts, alleging that so important a fact as American citi- zenship could not be conclusively decided against him without an appeal to the courts. His claim was denied by the Supreme Court, saying: **If we assume that the Fifth Amendment applies to him and that to deny entrance to a citizen is to deprive him of liberty, we nevertheless are of the opinion that with regard to him due process of law does not require a judicial trial. . . . The decision may be entrusted to an executive officer and . . . his decision is due process of law'* (20). Compare the article on Public Officers, §105, in Volume IX of this work. § 139. Kind of notice required. Where the proceeding is one for which notice is required, as in ordinary litiga- tion, the contents of the notice must apprise the defendant of the nature of the proceeding against him, it must be given in such a manner as to come to the attention of a person of reasonable diligence, and it must afford a suffi- (20) United States v. Ju Toy, 198 U. S. 253, 2G3. But a fair hearing must be given on tlie question. Chin Low v. U. S., 208 U. S. & FUNDAMENTAL RIGHTS 125 cient opportunity to make an answer. Where service of process is not necessary to acquire jurisdiction (§ 131, above), as where the action is in rem regarding property in the state, the notice may be served by publication, especially on non-residents. It is customary, though probably not necessary, to send actual notice to the de- fendant also, if his residence is known. Where a notice to defend a suit in Texas, regarding land there, was served on a defendant in Virginia, which gave but five days in which to appear and answer the suit, this time was held too short to afford due process (21). From four to eig'ht weeks are usually given under such circum- stances. § 140. Erroneous and fraudulent decisions. If the parties to a litigation have been given a fair hearing in their case, in a manner appropriate to the occasion, neither can complain that his property has been taken without due process merely because a court has errone- ously decided against him. Due process does not assure a correct decision, but only a fair hearing (22). Simi- larly, an erroneous decision in criminal cases does not deprive the defendant of liberty without due process (23). The requirement of due process does, however, entitle a litigant to an honest, though not a learned tribunal. If a litigant is injured through the corruption or fraud of the court or other body disposing of his case, he is entitled (21) Roller v. Holly, 176 U. S. 398. (22) Central Land Company v. Laidley, 159 U. S. 103. (23) In re Converse, 137 U. S. 624. The tribunal must not be mentally ineonipefent. JorcTan v. Mass.. 225 U. S. 167. Vol Xil— 10 12G CONSTITUTIONAL LAW to redress under this section of the Constitution (24). ' ^ 141. Denying or hindering access to the courts upon the question of due process itself. The courts may ulti- mately decide that the decisions of administrative officers, with or without a hearing according to circumstances, are due process of law, but the final decision of this ultimate question cannot be conclusively confided to any non-judi- cial tribunal. Any legislative attempt to do this, whether by direct denial of access to the courts upon this question, or by hindering such access by making resort to the courts upon it difficult, expensive, or hazardous, all alike violate the constitutional provision. Some years ago the Minnesota legislature created a railway commission upon which it attempted to confer the power of fixing railway rates and determining conclu- sively, without any hearing, that they were lawful and reasonable. The United States Supreme Court held the statute unconstitutional. It said: *'In the present case, the return alleged that the rate of charge fixed by the commission was not equal or rea- sonable, and the supreme court held that the statute deprived the company of the right to show that judicially. The question of the reasonableness of a rate of charge for transportation by a railroad company, involving as it does the element of reasonableness both as regards the company and as regards the public, is eminently a ques- tion for judicial investigation, requiring due process of (24) Fall Brook Irrigation District v. Bradley, 164 U. S. pp. 1G7-70; Louisville & Nashville Railway Co. v. Kentucky, 183 U. S. pp. 515-16; C. B. & Q. Railway v. Babcock, 204 U. S. 585. FUNDAMENTAL RIGHTS 127 law for its determination. If the company is deprived of the power of charging reasonable rates for the use of its property, and such deprivation takes place in the ab- sence of an investigation by judicial machinery, it is deprived of the lawful use of its property, and thus, in substance and effect, of the property itself, without due process of law and in violation of the Constitution of the United States" (25). Still more recently this principle was affirmed in: an- other case from Minnesota. A state statute prescribed certain railroad rates and made each separate act of dis- obedience thereto, by charging a higher rate, a felony, subject to imprisonment for a period not exceeding five years and a fine not exceeding $5,000. The court held these penalties invalid. It said; "When the penalties for disobedience are by fines so enormous and imprisonment so severe as to intimidate the company and its officers from resorting to the courts to test the validity of the legislation, the result is the same as if the law in terms prohibited the company from seeking judicial construction of laws which deeply affect its rights. "It is urged that there is no principle upon which to base the claim that a person is entitled to disobey a stat- ute at least once, for the purpose of testing its validity without subjecting himself to the penalties for disobedi- ence provided by the statute in case it is valid. This is not an accurate statement of the case. Ordinarily a law (25) Chicago, etc., Ry. v. Minnesota, 134 U. S. p. 458. 128 CONSTITUTIONAL LAW creating offenses in the nature of misdemeanors or fel- onies relates to a subject over which the jurisdiction of the legislature is complete in any event. In the case, however, of the establishment of certain rates without any hearing, the validity of such rates necessarily depends upon whether they are high enough to permit at least some return upon the investment (how much it is not now necessary to state), and an inquiry as to that fact is a proper subject of judicial investigation" (26). § 142. Self-incrimination not forbidden. Confronting witnesses not required. Most constitutions now contain provisions shielding a person accused of crime from be- ing compelled to testify against himself. The Fifth Amendment lays this prohibition upon the United States government, but it is not expressly prohibited to the states in the national Constitution. Recently it was urged that due process required that a defendant in a criminal case should not be compelled to testify against himself, but this was denied in an able opinion by the United States Supreme Court (27). It was shown historically that the provision requiring due process of law was in Magna Charta, while the practice of compulsory incrim- ination existed in the English courts for four or five hun- dred years thereafter, that it secured a foothold in the colonies, and was not forbidden by the New York consti- tution until 1821, nor by Rhode Island until 1842. The same has been held regarding the ordinary con- (26) Ex parte Young, 209 U. S. 123, 147-8. (27) Twining v. New Jersey, 211 U. S. 78. FUNDAMENTAL RIGHTS 129 stitutional provision that persons accused of crime must be confronted with the witnesses against them (27a). Section 2. Equal, Peotection of the Laws. § 143. Discriminatory exclusion from jury service. One of the clauses of the Fourteenth Amendment, sec- tion 1, forbids a state to deny to any person within its jurisdiction the equal protection of the laws. Most of the cases that have interpreted this clause have involved laws that attempted arbitrarily to discriminate between persons in respect to matters of substantive right, rather than those of procedure. Of the few cases that have arisen where procedure was held to be improperly dis- criminating, the leading one is Strauder v. West Virginia (28), The laws of West Virginia made colored men in- eligible for jury service. A negro was tried and con- victed by a jury from which all persons of his race were thus excluded, and he carried the case to the United States Supreme Court. The court said: "The words of the amendment, it is true, are prohibi- tory, but they contain a necessary implication of a posi- tive immunity, or right, most valuable to the colored race — the right to exemption from unfriendly legislation against them distinctively as colored. . . . That the West Virginia statute respecting juries — the statute that controlled the selection of the grand and petit jury in the case ef the plaintiff in error — is such a discrimination ought not to be doubted. Nor would it be if the persons (27a) West v. Louisiana, 194 U. S. 258. (2S) Strauder v. West Virginia, 100 U. S. 303. 130 CONSTITUTIONAL LAW oxc'lndcd by it were white men. . . . The statute of West ^^il•gillia, discriminating in the selection of jurors, as it does, against negroes because of their color, amounts to a denial of the equal protection of the laws to a colored man when he is put upon trial for an alleged offense against the state." The same has been held regarding the exclusion of negroes from the grand jury (29). The equal protection of the laws, however, does not re- quire that any part of a jury trying a negro shall neces- sarily be composed of negroes. It only requires that they shall not be excluded on account of their color from hav- ing a fair opportunity of being drawn to serve on a jury (30) . Nor does the Constitution forbid the exclusion from juries of any general class of persons who through age, sex, alienage, or incapacity, may reasonably be thought not well qualified for such service (31). Also persons en- gaged in various occupations may be excluded from jury duty so as not to interrupt their regular work for the community. Lawyers, ministers, doctors, teachers, engi- neers, etc., are frequently excluded on this ground (32). I (29) Carter v. Texas, 177 U. S 442. (30) Virginia v. Rivers, 100 U. S. 313. (31) Ex parte Virginia. 100 U. S. 339, 367. ^32) Rawlins v. Georgia, 201 U. S. 638. CHAPTER VIII. DUE PROCESS AND EQUAL PROTECTION OF LAW: POWERS OF REGULATION.— POLICE POWER. Section 1. General Conceptions. § 144. Fundamental guarantees apply to rights as well as procedure. In Chapter VII, above, we have dis cussed the Umitations upon j^rocedure imposed by the con- stitutional requirements of due process and equality of law. But these provisions include much more. The very substance of individual rights to liberty and property may not be arbitrarily impaired, no matter how fair the procedure. For instance, suppose a state should pass a law providing that in each township the person best able to bear the burden should pay the entire expense of local government, or should be deprived of one-half of his property, or that persons having more than $100,000 of property should be forbidden to acquire more. The fair- est possible procedure might be provided to ascertain the persons affected by these laws, and to administer their provisions, but this would be unavailing. Our present constitutions prohibit the objects sought by such laws, regardless of methods of procedure. In the next three chapters we shall consider at some length the scope of these limitations upon the principal governmental powers of the states and the nation. 131 132 CONSTITUTIONAL LAW § 145. They apply to all departments of government. Regarding the history and present meaning of the phrase **due process of law" the United States Supreme Court has said : *'The equivalent of the phrase 'due process of law,' ac- cording to Lord Coke, is found in the words 'law of the land,' in the Great Charter, in connection with the writ of habeas corpus, the trial by jury, and other guarantees of the rights of the subject against the oppression of the crown. In the series of amendments to the Constitution of the United States, proposed and adopted immediately after the organization of the government, which were dic- tated by the jealousy of the states as further limitations upon the power of the Federal government, it is found in the Fifth, in connection with other guarantees of per- sonal rights of the same character. . . . It is easy to see that when the great barons of England wrung from King John, at the point of the sword, the concession that neither their lives nor their property should be disposed of by the crown, except as provided by the law of the land, they meant by 'law of the land' the ancient and customary laws of the English people, or laws enacted by the Parlia- ment of which those barons were a controlling element. It was not in their minds, therefore, to protect themselves against the enactment of laws by the Parliament of Eng- land. But when, in the year of grace 1866, there is placed in the Constitution of the United States a declaration that *no state shall deprive any person of life, liberty, or prop- erty without due process of law,* can a state make any- thing due process of law which, by its own legislation, it FUNDAMENTAL RIGHTS 133 chooses to declare such? To affirm this is to hold that the prohibition to the states is of no avail, or has no applica- tion where the invasion of private rights is effected under the forms of state legislation. It seems to us that a stat- ute which declares in terms, and without more, that the full and exclusive title of a described piece of land, which is now in A, shall be and is hereby vested in B, would, if effectual, deprive A of his property without due process of law, within the meaning of the constitutional provi- sion (1). *'In this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Charta were incoi-porated into bills of rights. They were limitations upon all the powers of government, legislative as well as executive and judicial. . . . Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legis- lation ; but, in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they iaiust be held to guarantee, not particu- lar forms of procedure, l3ut the very substance of individ- ual rights of life, liberty, and property" (2). The requirement of equal protection of the laws has been similarly interpreted and applied. § 146. Meaning of liberty. As applied to the regu- lative powers of government, the constitutional prohibi- (1) Davidson v. New Orleans, 96 U. S. 97, 101-2. {1 (2) Hurtado v. California, 110 U. S. 516, 531-32. 134 CONSTITL'TIONAL LAW tion against depriving persons of liberty without due process of law (3) means that they may not be deprived arbitrarily and without some reasonable ground of either their personal liberty, or of their freedom to make con- tracts, to engage in occupations, or to acquire and use property. The word "liberty" in Magna Charta and other early English political documents (whence it came into our con- stitutions) doubtless referred only to liberty of the per- son (4). The same process that enlarged the application of the phrase "due process of law" (see § 145, above) has also widened the meaning of "liberty." Louisiana attempted to forbid any person from doing any act within the state to insure property in the state in any marine in- surance company which had not complied with Louisiana law. The Supreme Court held the statute invalid as ap* plied to a person who mailed a notice in the state to an outside company to effect insurance previously contracted for elsewhere. The prohibition of such acts was held to have no reasonable relation to any legitimate public pol- icy of the state. The court said : "The liberty mentioned in that amendment means not only the right of the citizen to be free from the mere phys- ical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties ; to be free to use them in all lawful ways ; to live and work where he will ; (3) Const., Amend. V and XIV. (4) C. E. Shattuck in 4 Harvard Law Review, 365. FUNDAMENTAL RIGHTS 135 to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essen- tial to his carrying out to a successful conclusion the pur- poses above mentioned" (5). § 147. Meaning of deprivation of property. Depriva- tion of property may take place in a variety of ways be- sides sheer confiscation. The state may place such restric- tions upon the possession, use, or the transfer of property as to amount to a deprivation of some or all of its essen- tial incidents. Legislation may attempt to change the character of an owner's title to property, or to compel special expenditures on account of the ownership or con- trol of certain kinds of property, or to enlarge the own- er's liability for damage resulting from the condition or use of property, or to limit the owner's remedies for in- fringement of property rights. If such and similar inter- ferences with property rights are merely arbitrary, and do not serve any reasonable or legitimate public purpose they may be declared unconstitutional. Many specific il- lustrations of this appear in succeeding subsections of this chapter. The rights protected by the guarantees of liberty and of property blend together at certain points, as for instance where an owner is forbidden to make a certain use of his property. This may be regarded as in- vading his liberty of action or as limiting his property rights. It is usually not important to distinguish closely between the two, and courts frequently do not do so. (5) Allgeyer v. Louisiana, 165 U, B. 578, 589. 136 CONSTITUTIONAL LAW § 148. Meaning of equal protection of the laws. Tlie Fourteeutb Amendmeut guarantees the et^ual protection of the laws to all persons within the jurisdiction of a state. Obviously this provision does not mean that all persons, property, or occupations must be treated alike by the state. Insane persons may be treated differently from sane ones, bricks differently from dynamite, and rail- roading differently from farming. For the public wel- fare, persons, propertj', and occupations must be classi- fied and subjected to differing and appropriate regula- tions. ''Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed not to impose unequal or unnecessary re- strictions upon any one, but to promote, with as little individual inconvenience as possible, the general good. Though, in many respects, necessarily special in their character, they do not furnish just ground of complaint if they operate alike upon all persons and property under the same conditions and circumstances. Class legisla- tion, discriminating against some and favoring others, is prohibited ; but legislation which, in carrying out a pub- lic purpose, is limited in its application, if within the sphere of its operation it affects alike all persons simi- larly situated, is not within the amendment" (6). Nor is it objectionable that the state chooses to regulate the evils in one kind of business, while it permits the evils of other kinds of business to go unregulated. A legislature is not obliged to reform everything in order (6) Barbier v. Connolly, 113 U. S. 27, 31-32. FUNDAMENTAL RIGHTS 137 constitutionally to reform anything. "Specific regula- tions for one kind of business, which may be necessary for the protection of the public, can never be the just ground of complaint because like restrictions are not imposed upon other business of a different kind. The discrimina- tions which are open to objection are those where persons engaged in the same business are subjected to different restrictions, or are held entitled to different privileges under the same conditions" (7). Thus, a California stat- ute forbidding the sale of corporation stock on margin, or for future delivery, was upheld although similar sales of other property were not forbidden. This particular form of speculative gambling being easy and prevalent, as compared with other forms, furnished a proper reason for treating it differently (8). On the other hand, an Illinois statute was held invalid which forbade all combinations to fix prices or restrict competition except those of producers and raisers regard- ing farm products or live stock. The excepted classes were so numerous and important that no good reason appeared why they alone should be permitted to combine against the public interest (9). All classification for purposes of regulation ''must always be based upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without such basis." This was said in declaring invalid a statute re- (7) Soon Hing v. Crowley, 113 U. S. pp. 708-&. (8) Otis V. Parker, 187 U. S. 606. (9) Connolly v. Union Sewer Pipe Co., 184 U. S. 640. 138 CONSTITUTIONAL LAW quiring railroad companies alone to pay costs when de- feated in litigation (10). A statute may be valid on its face and yet the adminis- tration of it may be so arbitrary as to be unconstitutional. Thus, the requirement that laundries in wooden buildings must obtain special licenses on account of the danger from fire is a valid classification, but if the laundries of white men are uniformly licensed while those of Chinese similarly situated are not, this administration of the ordi- nance is invalid (11). § 149. Application of these guaranties to corporations. The constitutional provisions under discussion apply to persons, not merely to citizens. They clearly include all natural persons, even though aliens, and have been held to cover corporations also, these being artificial persons (12). The peculiar nature of a corporation, however, de- prives it of much of the protection against arbitrary and unequal legislation enjoyed by natural persons. A corporation derives all its powers of action from some law, state or Federal. If it is incorporated or employed by the United States, or if its business is solely interstate or foreign commerce, a state may not interfere with these activities. (See § 296, below). The same is true if it has an irrepealable charter or contract or license to do busi- ness in a state. (See § 230, below). With these ex- ceptions, a state may determine absolutely what corpora- tions shall or shall not do business within it, and what (10) Gulf, etc., Railroad Go. v. Ellis, 165 U. S. 150. (11) Yick Wo V. Hopkins, 118 U. S. 356. (12) Pembina Co. v. Pennsylvania, 125 U. S. 181. FUNDAMENTAL RIGHTS 139 powers they shall exercise. Permission to do business not made part of a contract, can be withdrawn at any time by the state; and from these principles it results that the liberty clauses of our constitutions are scarcely applicable to corporations (13). The requirement of the equal pro- tection of the laws applies only to persons '* within the jurisdiction." A corporation, not within the excepted classes mentioned above, cannot exist within the jurisdic- tion of a state without its permission, because the artificial corporate entity has no existence except where sustained by law. A state may thus arbitrarily exclude corpora- tions, or, when they are admitted, it may arbitrarily put them out again unless they will submit to new con- ditions (14). Although corporations are popularly supposed to occupy positions of great privilege in this country, they are really far more vulnerable to legislative attack than are indi- viduals. Their essential strength is economic rather than legal. § 150. Definition of police power. The various powers of government overlap in their exercise to such an extent that a rigorous classification of them is scarcely prac- ticable. A few of them are sufficiently distinct from the remainder to have acquired distinguishing names, like the powers of war, of taxation, and of eminent domain. There is no general agreement regarding the classifica- tion of other governmental powers, though they may be (13) Western Turf Association v. Greenberg, 204 TJ. S. 359. (14) Philadelpliia Fire Association v. New York, 119 TJ. S. 110; [National Council v. State Council, 203 U. S. 151. But see W. U. Tel. I Co. V, Kansas, 216 U. S. 1 ; So. Ry. Co. v. Greene, 216 U. S. 400. 140 CONSTITUTIONAL LAW divided roughly into such groups as those regulating pro- cedure and the fonus of remedies, those defining private rights and duties between individuals, and those regu- lating conduct in the interest of the public welfare. This latter group is perhaps today more frequently called the police power, though the name is a vague one constantly applied by judges and writers to powers included in the other groups mentioned (15). The powers discussed in this chapter are chiefly those falling in the third group, regulation for the public welfare, with a few that perhaps belong in the second group as mainly concerning rights between individuals. § 151. Classification of subjects of police power. The subjects of the police power in its narrower sense may be divided roughly into three classes: 1. Legislation de- signed to promote the social welfare of the public. 2. Legislation designed to promote the economic interests of the public. 3. Administrative regulations the better to secure these ends. The principal topics in each of these classes will be briefly dealt with. Section 2. Regulation op Social Inteeests (16). § 152. Public health. Very great latitude is allowed government in its bona fide efforts to protect the health of persons or animals. Direct sanitary legislation, l^ar- (15) See Freund, Police Power, §§ 1-3. (16) The outline of this and succeeding sections of this chapter follows the analysis of the subject made by Professor Ernst Freund, of the University of Chicago Law School, In his excellent work, The Police Power. FUNDAMENTAL RIGHTS 141 ing any reasonable relation to the matter, is of course valid, as are also many restrictions upon occupations and the use of property that indirectly promote these objects. Thus, a state may require all slaughtering of cattle in a large city to be conducted under the control of a single corporation, which is given a monopoly of the business, in order to secure more effective sanitary control of the business ; the manufacture and sale of oleomargarine may ibe wholly forbidden if much of that sold is unhealthful ; persons may be forbidden to labor more than eight hours a day in underground mines; and women may be re- stricted to ten hours a day of work in public laun- dries (17). Where the court thinks that the alleged health law bears no reasonable relation to the avowed purposes of its creation, it is invalid. A recent noteworthy instance of this was the annulling of a New York statute forbidding more than ten hours a day of labor in bakeries, the court not being persuaded that this occupation was sufficiently unhealthful to make such a regulation reasonable (18). Obviously the determination of such questions depends more upon a knowledge of the pertinent facts than upon legal learning, and reputable courts may readily disagree upon close questions (19). § 153. Public morals. The immense importance of (17) Slaughter House Cases, 16 Wall. 36; Powell v. Pennsylvania, 127 U. S. 678; Holden v. Hardy, 169 U. S. 366; Muller y. Oregon. 208 U. S. 412. (18) Lochner v. New York, 198 U. S. 45. (19) Compare People v. Marx, 99 N. Y. 377, with Powell v. Penn- sylvania, above. Vol. xa—i 1 142 CONSTITUTIONAL luAW this subject, justifies a correspondingly wide legislative control. The principal subjects of regulation have been gambling in its varied forms, intoxicating liquors, and sexual vice. Betting may be forbidden, even upon games wholly of skill, lotteries and the common forms of gam- bling are almost everywhere illegal, and even business transactions of a more highly speculative character may be forbidden. Thus, option contracts for the future de- livery of grain may be made illegal, as may sales of stock upon margin (20). Attempts to control the liquor traffic in this country have produced a vast amount of legislation and litiga- tion. As a result it has been definitely settled that the admitted evils of the traffic justify absolute prohibition of the manufacture, keeping, or sale of intoxicating liquor, and that this prohibition may constitutionally apply to places of manufacture or to liquor legally owned in a state before the prohibitory law took effect (21). This is one of the most notable instances of legislative power to render property virtually useless and almost valueless in the public interest, without compensation. Of course the right to forbid includes the lesser right to license upon stringent conditions, and at least one state (South Carolina) has legally made the selling of liquor a govern- ment monopoly (22). Measures designed to prevent or limit sexual immor- ality are seldom held invalid. It has even been suggested (20) Booth V. Illinois, 184 U. S. 425; Otis v. Parker, 187 U. S. 606. (21) Mugler v. Kansas, 123 U. S. 623. (22) Vance v. Vandercook Co., 170 U. S. 438. FUNDAMENTAL RIGHTS 143 that a state may restrict the location of houses of ill fame to certain districts, without infringing the constitu- tional rights of property owners in such districts (23). § 154. Public safety. The rapidly increasing bulk of state and municipal legislation for the public safety in- dicates its importance. Dangerous property and busi- nesses may be required to adopt appropriate measures for the protection of employees, patrons, or the public gen- erally ; and precautionary steps may be required in order that property or occupations shall not become dangerous. Regulation of factories, mines, railroads, navigation, con- struction of buildings, and many other matters are com- mon instances. The principal questions here are what parties may be made to bear the expense of measures for the public safety. This is discussed in § 165, following. § 155. Public order and comfort. Esthetics. The state may regulate the use of streets and other iDublic places, may secure quiet at night and on Sundays, and may forbid acts offensive either to the senses or the feel- ings of the public. The separation of the races in public conveyances, schools, or elsewhere where such separa- tion may promote the public order is also upheld (24). As regards restrictions upon the use of property for purely esthetic purposes, as limiting the height of build- ings, or forbidding unsightly bill boards, these have so (23) L'Hote v. New Orleans, 177 U. S. 587. (24) Lehew v. Brummell, 103 Mo. 546; Plessy v. Ferguson, 163 U. S. 537. 144 CONSTITUTIONAL LAW far been generally denied validity in this country, unless oompensatioD is made to the owner (25). § 156. Licensing occupations. Not only may licenses be required for occupations that may be forbidden alto- gether, like selling liquor, but ^'if the occupation or calling be of such a character as to require a special course of study or training or experience to qualify one to pursue such occupation or calling with safety to the public inter- ests, no one questions the power of the legislature to im- pose such restraints and prescribe such requirements as it may deem proper for the protection of the public against the evils resulting from incapacity and ignor- ance" (26). The requirement of appropriate qualifica- tions, to be evidenced by licenses, has been upheld in respect to a great variety of occupations including many of those involving professional skill, fiduciary relation, or a likelihood of fraud or public disorder occurring in connection with the business. But the qualifications re- quired must be appropriate to the business. Requiring a barber to be a citizen is invalid (27). The examination and licensing cannot be required in occupations where this is not reasonably necessary to the public protection, such as horseshoeing, and undertaking (28). § 157. Domestic relations. Dependent, delinquent and defective persons. The control of the state over mar- (25) Welch V. Swasey, 214 U. S. 91; Commonwealth v. Boston Advertising Co., 188 Mass. 348. (26) Singer v. Maryland, 72 Md. 464. (27) Templar v. State Board, 131 Mich. 254. (28) Besette v. People, 193 111. 334; People v. Ringe, 125 App. DlT. (N. Y.), 592. FUNDAMENTAL RIGHTS 145 riage and divorce is discussed in the article on Domestic Eelations in Volume II of this work. This power to prescribe qualifications and formalities for marriage is doubtless much wider than any previous exercise of it in this country ; and the power to prescribe the conditions of divorce is practically absolute. In the absence of express constitutional restrictions a state legislature may even grant divorces in individual cases (29). Provisions against the intermarriage of different races exist in many states and have been uniformly sustained (30). Minor children, insane persons, and those with abnor- mal tendencies markedly injurious to the social order, like habitual criminals, vagrants, and truants may be cared for by the state in an appropriate manner. The educa- tion of children may be made compulsory, and the state may care for them if their parents are unable or unwilling to do so. Insane and otherwise defective persons may be treated in state institutions such as asylums, hospitals, reformatories, etc., wherever public care seems likely to secure better results than private care. Section 3. Economic Intekests. § 158. In general. It is noticeable that the courts have allowed the legislature less latitude in regulations affect- ing economic, than in those dealing with social, inter- ests. This has been particularly marked in the case of legislation designed to restrict competition. Unfair meth- ods of competition may in many instances be successfully (29) Maynard v. Hill, 125 U. S. 390. (-30) Plessy v. Ferguson, 163 U. S. 537, 545. 146 CONSTITUTIOiNAL LAW forbidden, but, eliminating these, the "free struggle for life" has been carefully protected. It may be that this century will witness such a change in the essential con- ditions of this struggle that much of the older economio reasoning will be abandoned by the courts. § 159. Protection against fraud. Fraud, as a means of competition, it is everywhere agreed may be forbidden. Laws against short weights, imitations, and even harm- less adulterations, inspection laws, regulations to secure the fidelity of fiduciaries and the regulation of other kinds of business where fraud is likely to appear are common instances of this. Under the guise of such legislation, however, it is not permissible unreasonably to restrict competition. For instance, if the prohibition of oleo- margarine cannot reasonably be attributed to a purpose to protect health and prevent fraud, it cannot be sustained upon the ground of protecting the butter interests of a state from competition. Both the oleomargarine manu- facturers and the public are entitled to the benefit of the cheaper article (31). For similar reasons laws against merchants giving premiums or trading stamps with their goods are invalid, as being directed against a method of competition, perhaps not beneficial to the public, but at least not improper (32). § 160. Protection against oppression. Where the economic superiority of certain classes of persons in their dealings with other classes or with the public is so marked that oppressive terms are likely to be frequently (31) People V. Marx, 99 N. Y. 377. (32) People V. Gillson, 109 N. Y. 389. FUNDAMENTAL RIGHTS 147 exacted, the weaker party may be protected by legisla- tion which either regulates particular contracts or methods of organization, that give undue economic ad- vantages. Debtors and laborers have been the two classes commonly protected by the regulation of their contracts. Excessive interest and annoying practices in the collection of debts are forbidden in most states; and bankruptcy acts may even discharge honest or unfortunate debtors altogether. The latter subject is dealt with at length in the article on Bankruptcy in Volume X of this work. Legislation regulating the more important elements of labor contracts, to prevent economic oppression, have thus far generally been held invalid. The hours of work cannot be restricted, except to protect health or morals, nor can employees be protected from arbitrary discharge, for instance, because they are members of a union (33). The regulation of the rate of wages would doubtless fare no better. Various incidents of the contract of employment may be regulated, such as requiring all wages earned to be paid when a servant is discharged, and forbidding pay- ment in store orders instead of cash (34). Some state courts deny even the validity of such regulations. The blacklisting of employees by combinations of employers may be forbidden. Statutes forbidding combinations in restraint of trade are among the commonest illustrations of laws restricting methods of organization that lead to economic oppression (33) Lochner v. New York, laS U. S. 45; Adair v. United States, 208 U. S. 161. (34) Knoxville Iron Co. v, Harbison, 183 U. S. 13. 148 CONSTITUTIONAL LAW of the public. The power of the state to prevent combined action for economic purposes is much greater than its power against individual action (35). § 161. Business affected with a public interest. Vari- ous businesses that render important services to the com- munity may be regulated in great detail by the legislature. These businesses are often said to be clothed or affected with a public interest, and in recent years the more im- portant ones have generally been collectively called "pub- lic utilities," or ''public service businesses.'* They in- clude the furnishing of transportation, telegraph and telephone service, gas, water, and electricity, and other important public services. It is difficult to state any single test by which to distinguish public service businesses from others. Probably there are several different principles of inclusion. Businesses discharging governmental func- tions, like transportation, may be regulated; businesses requiring public franchises, as for the use of the streets, may be regulated ; and perhaps any business of vital im- portance which either legally or economically has become a virtual monopoly may be regulated. The general char- acteristics and obligations of such occupations are fully treated in the article on Public Service Corporations in Volume VIII of this work. Regulation of these businesses may prescribe maximum charges and equality of service and may specify the de- tails of the service to be supplied. The principal limita- tion upon the regulation of charges is that they must (35) Aikens v. Wisconsin, 195 U. S. 194. FUNDAMENTAL RIGHTS 149 permit the earaing of a fair return upon the business. As to railroad rates the Supreme Court has said : **We hold, however, that the basis of all calculations as to the reasonableness of rates to be charged by a cor- poration maintaining a highway under legislative sanc- tion must be the fair value of the property being used by it for the convenience of the public. And in order to ascertain that value, the original cost of construction, the amount expended in permanent improvements, the amount and market value of its bonds and stock, the present as compared with the original cost of construction, the prob- able earning capacity of the property under particular rates prescribed by the statute, and the sum required to meet operating expenses, are all matters for considera- tion, and are to be given such weight as may be just and right in each case. We do not say that there may not be other matters to be regarded in estimating the value of the property" (36). Under our dual system of government, internal state rates may be regulated by the state alone, and interstate rates by the United States alone; and in determining what is a fair return upon the value of the property, the income from internal transportation must alone be con- sidered in fixing the internal rates, and vice versa. See § 293, below. Governmental regulation of public service business is fully discussed in the article upon Public Service Corporations in Volume VIII of this work. Banks and insurance companies are usually the subject 'a&k Smyth V. Amee, 169 U. S. 466, 546-7. 150 CONSTITUTIONAL LAW of rather stringent regulations in order to protect their patrons from loss due to unwise or dishonest management. § 162. Regulation of corporations. As has been ex- ]ilained elsewhere (see § 149, above), corporations owe their existence and powers entirely to legislation and they are therefore subject to much more stringent and arbi- trary regulation than are individuals. As a condition of the grant of a corporate charter the corporation may be required to consent in advance to exactions that could not be required of it under ordinary legislative powers. Thus, it may validly agree to carry passengers at rates too low to make a fair profit (37). See also §§ 291, 296, below. The Federal Constitution may forbid the enforceability of some terms even in a franchise grant, as for instance an agreement not to remove suits into the Federal courts ; but though the state may not specifically enforce such an agreement it may punish the corporation by expelling it from the state for breach of it (38). § 163. Regulation of ownership of property. The state may regulate the future creation of interests in property, as by forbidding perpetuities or long time leases of agri- cultural lands. The use and appropriation of certain peculiar kinds of property may also be regulated, such as running water, game, fish, natural gas, and oil. The wanton waste of these substances may be forbidden in the interest of the public, though otherwise private rights in them may be left untouched. The public control over (37) Grand Rapids, etc. R. R. Co. v. Osborne, 193 U. S. 17. (38) Home Ins. Co. v. Morse, 20 Wall. 445; Security Ins. Co. V. Prewitt, 202 U. S. 246. FUNDAMENTAL RIGH13 151 game, fish, and navigable waters is very extensive, and their taking for private purposes may be forbidden, or al- lowed subject to qualifications (39). The prohibition of the wasteful destruction of natural gas or forest trees by private owners has been upheld (40). § 164. Compelling joint action to improve property. Where property is so situated that it cannot be most beneficially enjoyed by its owners acting separately, the legislature may compel some of the owners, upon receiv- ing compensation, to submit to measures enabling the others to obtain the most beneficial use of the joint prop- erty, provided that this result is of considerable public benefit. Thus, where a large water power can be devel- oped from a stream by damming it and flooding the upper riparian land, the legislature may authorize such a dam and compel the upper owner to submit to flooding upon being paid therefor by the owner of the dam (41). Simi- larly, when land is held by several tenants in common or joint tenants, the legislature may authorize a compulsory partition and sale in order to secure the more beneficial use of the property. Much the same principle is involved where the prop- erty of several owners is so situated that all must concur to obtain some important public improvement such as a land irrigation or drainage system. All of the owners (39) Geer v. Connecticut, 161 U. S. 519; Hudson Water Co. y. McCarter, 209 U. S. 349. (40) Ohio Oil Co. v. Indiana, 177 U. S. 190; Opinion of Justices, 103 Me. 506. (41) Head v. Amoskeag Co., 113 U. S. 9. 152 CONSTITUTIONAL LAW whose land is benefited may be required to contribute to a common system (42). A compulsory sharing of the ex- pense of party walls is in some states treated similarly. § 165. Special liabilities due to nature of business. If the nature of the business requires special supervision, or exposes other persons and property to special hazard, even when carefully conducted, the cost of such super- vision and the burden of such hazard may be placed wholly upon the business occasioning them. Thus, the railroads of a state may be made to pay the expense of a railroad commission; coal mines must pay for mine in- spectors; and so on (43). Railroads may be made abso- lutely liable for fire from their engines, or for the injuring of passengers, even though all proper precautions are used to prevent these accidents ; and a liquor seller may be made liable for damage done by intoxicated persons to whom he has sold liquor. The businesses themselves are hazardous and may be made to bear the expense of i,xieir hazards (44). Similarly, a business may be made to bear the expense of guarding against injuries likely to occur in its conduct; for instance, railroads must pay for fen- cing their tracks, for the installation of safety devices, and for track elevation in populous districts (45). § 166. Special liabilities due to natural condition of property. At common law a landowner was not liable for a nuisance occasioned on his premises by the ordinary (42) Wurts V. Hoagland, 114 U. S. 606. (43) Railroad Co. v. Gibbes, 142 U. S. 386. (44) St. Louis, etc., Ry. v. Mathews, 165 U. S. 1; Chicago, R. I & P. Ry. V. Zernecke, 183 U. S. 582; Howes v. Maxwell, 157 Mass. 333. (45) New York, etc., Ry. v. Bristol, 151 U. S. 656. FUNDAMENTAL RIGHTS 153 operation of natural causes, such as stagnant water in a natural swamp, or the springing up of noxious weeds injurious to the crops of his neighbors (46). But by statute he may be required to remedy these defects at his own expense, unless the trouble and expense of doing so is unreasonably great. Thus he may be required to fill up a city lot to a grade fixed so as to prevent the accumulation of stagnant water (47), or to cut noxious weeds, or kill diseased animals (48) ; but he cannot be required to free his farm land from ground squirrels and similar refrac- tory vermin, where the expense and burden is excessive as compared with the public benefit (48). Compulsory public improvements on a large scale, requiring the united efforts of the landowners of a district, are discussed in § 164, above. § 167. RetroS/Ctive laws. Retroactive laws that affect prejudicially persons charged with crime, or which impair the obligations of contracts are dealt with elsewhere in this article as ex post facto laws and laws impairing the obligations of contracts. (See Chapters VI and XI.) Other retroactive laws, however, may be passed by the legislature which will be invalid if they amount to a ta- king of property without due process of law. A statute enacting merely that land now owned by A should become the property of B would of course be invalid. But sup- pose A purports to convey land to B by a deed which is invalid for some formal defect, and the legislature by (46) Roberts v. Harrison, 101 Ga. 773; Giles v. Walker, 24 Q. B. D. 656. (47) Nickerson v. Boston, 131 Mass. 306. (48) Ex parte Hodges, 87 Cal. 162. 154 CONSTITUTIONAL LAW statute validates the deed. This also takes the title from A and puts it in B, but it is *'due process" because it car- ries out the intention of the parties so as to produce a just result. The general rule for such cases has been thus stated in a leading decision: ''When a statute is ex- pressly retroactive, and the object and effect of it is to correct an innocent mistake, remedy a mischief, execute the intention of the parties, and promote justice, then, both as a matter of right and of public policy affecting the peace and welfare of the community, the law should be sustained" (49). This principle is frequently invoked to sustain curative laws validating not only acts between private parties, but those of public officials and of municipal corporations (50). Of course no act can be thus validated which could not have been originally authorized. The legislative validation of a void mortgage is binding not only between the parties, but as against attaching creditors of the mortgagor, who knew of the existence of the void mort- gage (51). Doubtless such retroactive validation would not be good against third parties who were purchasers for value without notice. When a right of action has been barred by the statute of limitations it is generally held that it cannot he re- vived against the debtor by a retroactive statute; nor, when it is not a matter of curing defective proceedings, (49) Mechanics' Savings Bank v. Allen, 28 Conn. 97. (50) Mitchell v. Clark, 110 U. S. 633; New Orleans v. Clark, 95 U. S. 644. (51) McFaddin v. Evans-Snider-Buel Co., lS.o U. S.. 505. But see Steger v. Trav. Men Bldg. Assn., 208 111. 236, contra. FUNDAMENTAL RIGHTS 155 can a cause of action or a defense to an action be abro- gated by a retroactive statute, except when the action or defense is based upon some purely arbitrary rule of law (52). There is much difference of opinion regarding the validity of ''betterment laws," which permit one who in good faith has spent money upon property which he thinka he owns to recover the value of his improvements when ejected by the real owner. In law the improvements be- come the property of the owner of the land, and opinions differ about the justice of making him pay for what he has not requested to be done (53). Eetroactive laws validating marriages and legitimating children have been upheld (54). Great latitude is given to the state in making retroactive changes in the remedies for wrongs. The forms and inci- dents of actions, rules of evidence, and methods of pro- cedure before and after judgment may all be changed after a cause of action has arisen, provided that such alterations are not mere colorable devices for unjustly and arbitrarily depriving persons of their rights. Section 4. Administrative Regulations. § 168. In general. Many regulations incidental to those directly concerning the public welfare are enacted in order to secure uniformity, certainty, and administra- tive efficiency in enforcing the law. Of this character are most laws fixing standards, laying down prima facie rules (52) Bd. of Ed. v. Blodgett, 155 111. 441; Plummer v. Northern I Pacific Ry., 152 Fed. 206. j (53) See 14 Harvard Law Rev. 385. j (54) Goshen v. Stonington, 4 Conu. 209. 156 CONSTITlTlONAL LAW of evidence, and forbidding certain acts or conduct re- gardless of their effect or tendency in particular cases. § 169. Illustrations. Thus, all women may be forbid- den to work in factories more than ten hours a day, even though a considerable number of particular women may be able to work more than this length of time without in- jurj'- (55) ; the sale of all game of a certain kind may be forbidden during the closed season in a state, even though some of the game offered for sale may have been lawfully killed elsewhere (56) ; the sale of all oleomargarine arti- ficially colored to resemble butter may be forbidden, even though no effort be made to sell it as butter (57) ; and non- producing sellers of milk may be made absolutely liable for selling milk containing less than a certain percentage of milk solids, while a dairy owner may escape liability by proving that his cows actually gave milk with a smaller percentage of solids (58). It is evident that all of these provisions, though not necessary in particular cases, do in general substantially aid the enforcement of the law where it is needed. It would he difficult to determine the strength or endurance of any particular woman ; or to prove that game offered for sale was killed within the state; and if the sale of butter-colored oleomargarine is permitted at all, some dealers will sell it for butter. In the milk case, the dairy- (55) Muller v. Oregon, 208 U. S. 412. (56) Silz V. Hesterberg, 211 U. S. 31. (57) Plumley v. Massachusetts, 155 U. S. 461. (58) Et. John v. New York, 201 U. S. 633. FUNDAMENTAL RIGHTS 157 man's cows may be tested, while it is much more difficult to trace the source of milk sold by non-producers. § 170. Prima facie rules of evidence. Of a similar character are many so-called prima facie rules of evi- dence, which make the proof of some fact, if unexplained, a sufficient ground for conviction of an offense with which the proven fact is ordinarily closely connected. Thus, a statute may make the possession of policy slips prima facie evidence of the illegal paying of policy (59) ; or the drinking of liquor in a shop prima facie evidence that it was sold there (60). The fact upon which the presumption is to rest must have some fair relation to, or natural con- nection with the act which is made criminal ; and in any case of this kind the defendant may rebut the presump- tion by explaining the fact that is made prima facie evi- dence, and thus showing his innocence. (59) Adams v. New York, 192 U. S. 585. (CO) Board of Excise v. Merchant, 103 New York 148. Vol XII— 12 CHAPTER TX. DUE PROCESS AND EQUAL PROTECTION OF LAW: TAXATION. § 171. General requisites. The fundamental guaran- tees of the Fifth and Fourteenth Amendments regarding due process and equality restrict the powers of taxation of both Federal and state governments. They prohibit legis- lation that is arbitrary and unreasonable in respect to taxation, just as they restrict such legislation in other fields. Other specific restrictions upon the taxing powers of the states and the United States, not included under the fundamental guarantees of due process of law and equal protection of the laws, will be discussed elsewhere. See §§ 314-17, below. The principal requisites, with respect to taxation, en- forced by these constitutional provisions are as follows: (a) The taxing power must have jurisdiction of the subject of taxation. (b) The tax must be levied for a public purpose. (c) The tax must not be arbitrarily discriminatory, nor disproportionate, nor confiscatory, as respects the standards proper for any particular case. Section 1. Jueisdiction fob Purposes of Taxation. § 172. Object taxed must have situs in jurisdiction. When a government levies a tax upon property, it is not 158 FUNDAMENTAL RIGHTS 159 valid unless the property is located, for purposes of tax- ation, within the territorial jurisdiction of the taxing power ; that is, it must have a situs, as it is called, in the jurisdiction. Similarly, when it taxes occupations, or privileges, or the doing of acts, the occupation must be pursued, or the privilege exercised, or the act done, inside the jurisdiction of the taxing power. Otherwise, it is not taxation at all, but is confiscation (1). § 173. Real estate and chattels. It has always been admitted that real estate is taxable only in the jurisdic- tion where it is located. Where the tax is upon the tangible land itself this is perfectly clear, but the rule is the same even when the right is an intangible one con- nected with the land, a so-called 'incorporeal heredita- ment," such as a right of way over the land of another, or a right to ferry from the shore of a river. Such rights can be taxed only where the land is to which they are attached (la). A mortgage on land is an interest in land taxable where the land is (2). The same rule applies to tangible personal property, chattels. If permanently kept in one place they can be taxed as property there only, although their owner may live elsewhere. The state where he lives cannot tax them (3). Where an owner employs the same article of prop- erty part of the time in the state where he lives and a part of the time elsewhere, it may be taxed as property (1) state Tax ou Foreign-held Bonds, 15 Wall. 300, 319. (la) Louisville & Jeffersonville Ferry Co. v. Kentucky, 188 U. S. 385. (2) Savings & Loan Society v. Multnomah County, 169 U. S. 421, (3) D., L. & W. R. R. Co. V. Pennsylvania, 198 U. S. 341. 160 CONSTITUTIONAL LAW. where he lives (4). But where a refrigerator company domiciled outside of Colorado ran its cars irregularly in the state according to the demands of business, so that there was an average of forty-one cars in the state, though composed of constantly changing cars, it was held that Colorado could tax the company upon the value of forty-one cars (5). This average amount of property received the protection of the state, and so might fairly be taxed there. § 174. Coi*porate assets. Suppose a corporation, doing business wholly in Illinois, has issued $1,000,000 worth of stock, owes $500,000 worth of bonds, and has $750,000 worth of tangible property, real and personal, in the state. What is the total property value of this corpora- tion? Evidently it is not merely the value of its tangible property, for its stock alone is worth more than this, and in addition to the stock value it is able to sustain the value of $500,000 worth of bonds that it has issued. The value of the corporation as a going concern is fairly in- dicated by the value of its stock and bonds together, for if the bonds were paid all of the stock would be worth approximately that much more. It is the various intan- gible values connected with the corporation that account for this great difference between the $750,000 of tangible property and the $1,500,000 gross value of the corpora- tion. These intangible values consist of franchises, contracts, the good-will of an established business, the business ability of its managers, and like elements upon (4) New York v. Miller, 202 U. S. 584. (5) American Refrigerator Co. v. Hall, 174 U. S. 70. FUNDAMENTAL RIGHTS 161 which are based the expectations of dividends. These intangible values may be taxed by the state just like any other property, and the method of determining them by adding together the market value of the stock and bonds of the corporation is valid (6). § 175. Corporate assets in several states. Suppose, however, that the corporation in question is not doing business in Illinois alone, but in several states, although its home office is in Illinois. May these other states also tax a share of these intangible values of the corporate assets, or are they restricted to such tangible property as they can find belonging to it within their respective lim- its? The Adams Express Company had altogether $16,000,000 worth of corporate assets. About $4,000,000 of these consisted of tangible real and personal prop- erty. In Ohio it had about $67,000 of property, including money and credits. About 1-30 of its mileage and busi- ness was in the state of Ohio. Ohio taxed express com- panies upon such part of their entire capital stock as was proportional to their mileage and amount of business done in Ohio. On this basis the property of the Adams Company in Ohio was assessed at $533,000. This was upheld by the United States Supreme Court, which said: ''But where is the situs of this intangible property? The Adams Express Company has, according to its show- ing, in round numbers $4,000,000 of tangible property scattered through different states, and with that tangible property thus scattered transacts its business. By the (6) state Railway Tax Oases, 92 U. S. 575. 162 CONSTITUTIONAL LAW business which it transacts, by combining into a single use all those separate pieces and articles of tangible property, by the contracts, franchises, and privileges which it has acquired and possesses, it has created a corporate prop- erty of the actual value of $16,000,000. Thus, according to its figures, this intangible property, its franchises, privileges, etc., is of the value of $12,000,000, and its tangible property of only $4,000,000. Where is the situs of this intangible property? Is it simply where its home office is, where is found the central directing thought which controls the workings of the great machine, or in the state which gave it its corporate franchise; or is that intangible property distributed wherever its tangible property is located and its work is done? Clearly, as we think, the latter. Every state within which it is transacting busi- ness and where it has its property, more or less, may rightfully say that the $16,000,000 of value which it pos- sesses springs not merely from the original grant of cor- porate power by the state which incorporated it, or from the mere ownership of the tangible property, but it springs from the fact that that tangible property it has combined with contracts, franchises, and privileges into a single unit of property, and this state contributes to that aggre- gate value not merely the separate value of such tangible property as is within its limits, but its proportionate share of the value of the entire property" (7). The same rule of taxation, commonly called the "unit rule" has been applied similarly to other kinds of busi- (7) Adams Express Co. v. Ohio, 166 U. S. 185, 223-4. FUNDAMENTAL RIGHTS 163 ness extending over several states, such as telegraph com- panies, railroads, and sleeping-car companies. The pro- portion of intangible values to be localized in any par- ticular state may be ascertained in any fair manner, which is usually by taking a part of it proportional to the mile- age or business done in the taxing state. The only limits that have thus far been suggested upon the principle of the "unit rule" are that the value of the property outside of the state, not directly used by the com- pany in its general business, like bonds held for invest- ment, must be deducted ; and that a fair part of dispro- portionately valuable property held outside of the state, like great railroad terminals, must be deducted in ascer- taining the mileage value of the road in states where there is no property of a corresponding character (8). § 176. Debts. Suppose A, living in Vermont, owes $100 to X living in New York. The contract right to re- i cover this $100 from A is unquestionably valuable prop- 1 erty, and as such is protected in many ways by the con- j stitutional guarantees respecting property. Where is ! this property located for purposes of taxation? The , property consists of an intangible relation between A and I X, created by law in consequence of their agreement, by ; which X is entitled to compel A to pay him $100. It is j difficult to see how this relation can be property where I the debtor lives, for his obligation to pay is quite the re- verse of being valuable to him, and, for similar reasons, ' the obligation does seem to be property where the creditor (8) Fargo v. Hart, 193 U. S. 490, in4 CONSTITUTIONAL LAW lives. This common sense view of the matter has been accepted by the courts, and it is generally held that a debt, pure and simple, is not taxable as property at the residence of the debtor (9). On the other hand, generally speaking, debts are taxable as property at the residence of the creditor (10). § 177. Documentary evidence of debts or property. Suppose, in the case put in the preceding section, that A had given X a promissory note or acknowledgment as evidence of the debt, and that X had kept this in Con- necticut, his own residence still being in New York. Could Connecticut tax this evidence of debt as property at the full value of the debt? In a recent case the United States Supreme Court denied that this could be done, at least if the evidence of the debt were a document other than a bond or a bank-note, and if no business of any character were transacted in Connecticut with the credits repre- sented by the documents (11). As regards bonds and bank-notes they have historically been treated as if they were themselves property and not merely evidence of it. Originally, if the owner of a bond (a contract under seal) lost it he could not recover the debt ; and bank-notes, pay- able to bearer, have always passed from hand to hand in ordinary use as money. Bank-notes will probably be re- garded as taxable only where they are, like tangible prop- erty; and it is perhaps doubtful what will be held in re- (9) state Tax on Foreign-held Bonds, 15 Wall. 300. (10) Kirtland v. Hotchkiss, 100 U. S. 491. (11) Buck V. Beach, 206 U. S. 392. FUNDiVMENTAL RIGHTS 165 gird to bends when an actual case arises in the Federal courts. Warehouse receipts for goods outside of a state also may not be taxed by the state at the full value of the goods, at least unless only the transfer of the receipt could transfer the title to the goods. The ordinary ware- house receipt merely represents the goods for purposes of trade convenience, and the goods themselves may be dealt with independently of it (12). § 178. Credits employed in business. If intangible credits are employed by the owner in business outside of the state where he lives, they acquire a situs for taxation at the place where they are thus employed, even though the documents representing them are most of the time kept elsewhere. A New York insurance company made loans in Louisiana to its policyholders, upon the security of their policies. The business was done through a local agent in Louisiana, and the notes given by the debtors and the policies held as securities were sent to New York until they were paid, when they were sent back to be de- livered to the debtors. The Supreme Court held these loans were taxable in Louisiana, saying: "Here the loans were negotiated, the notes signed, the security taken, the interest collected, and the debts paid within the state. The notes and securities were in Louisi- ana whenever the business exigencies required them to be there. . . . We are not dealing here merely with a single credit or a series of separate credits, but with a business. (12) Selliger v. Kentucky, 213 U, S. 200. IfiG CONSTITUTIONAL LAW Tho insiiranco company diose to enter into the 'business c f lending money within the state of Louisiana, and em- ployed a local agent to conduct tliat business. It was con- ducted under the laws of the state. The state undertook to tax the capital employed in the business precisely as it taxed the capital of its own citizens in like situation. For the purpose of arriving at the amount of capital actually employed, it caused the credits arising out of the business to be assessed. We think the state had the power to do this, and that the foreigner doing business cannot escape taxation upon his capital by removing temporarily from the state evidences of credits in the form of notes. Under such circumstances they have a taxable situs in the state of their origin" (13). § 179. Shares of stock. When a corporation is organ- ized, the artificial corporate entity thus created is the legal owner of all the corporate property. The taxation of this property, tangible and intangible, is governed as to situs by the same rules as if the owner were an indi- vidual. The stockholders of the corporation have an in- terest in it, a step removed from the actual legal owner- ship of the corporate property. Their right is to receive the dividends from the corporation, if any are earned by the corporate management, and to share in what is left after the payment of debts when the corporation is dis- solved. The interest of the stockholders in the corpora- tion is sufficiently different from the coi'poration's owner- ship of its property, so that each may be taxed separately (13) Metropolitan Insurance Co. v. New Orleans, 205 U. S. 395, >02-3. FUNDAMENTAL RIGHTS 167 although the same property or business really give value to both. ''It is well settled by the decisions of this court that the property of the shareholders in their shares and the property of the corporation in its capital stock are distinct property interests, and, where that is the legis- lative intent clearly expressed, that both may be taxed" (14). This interest of the shareholders in a corporation not only is property, separate from the property of the cor- poration, but apparently it may be treated as having a taxable situs not only where the stockholder lives, but also where the corporation does business. A Michigan stockholder in a New York corporation may be taxed in Michigan upon the full value of hisi New York stock, even though all of the corporate property and business are out- side of Michigan (15). On the other hand, shares of stock may also be treated as having a business situs where the corporation is located or does business, andmay be taxed there as the property of non-resident share- holders (16). Presumably, however, a state where the stock certificates were merely kept could not tax them, provided both the owner and the corporation were domi- ciled elsewhere (17). § 180. Franchises. A franchise is a privilege grant- able by the government at its pleasure, which cannot be (14) New Orleans v. Houston, 119 U. S. 265, 277. (15) Bacon v. Tax Commissioners, 126 Mich. 22. (16) Tappan v. Merchants' National Bank, 19 Wall. 490. (17) See Matter of Enston, 113 N. Y. p. 181; and Matter of Jameei, 144 N. Y. p. 12. 16S CONSTITUTIONAL LAW exercised without such a grant. The right to purchase property against the will of the owner by eminent domain is an instance. So is the right to become a corporation and exercise corporate powers. So is the right to take tolls for a public highway or feriy or railroad, or to oc- cupy public streets with pipes or conduits or poles, as for gas, electric wires, and trolley lines. All franchises have a situs for taxation wherever they are exercised. The most striking illustrations of this are cases of corporate franchises. When a corporation is chartered, it is given a variety of franchises. One of these is the franchise of corporate capacity — to be a cor- poration. Others are its franchises to exercise certain powers. The corporation chartered to run a railroad has different corporate powers from one chartered to con- duct a bank, though each has corporate capacity. These various franchises may be taxed as privileges irrespective of their proi^erty values, in any place where they are exercised; and they may also be taxed as property, at their fairly ascertained value, either separately, or in common with all other corporate assets. In every state in which a corporation does business it exercises its franchise to be a corporation and its franchises to do its particular kind of business, and these may be taxed as property wherever it does business. ''For the transaction of its business it goes into vari- ous states, and wherever it goes as a corporation it car^ ries with it the franchise to be. But the franchise to be is only one of the franchises of a corporation. The fran- chise to do is an independent franchise, or rather a com- FUNDAMENTAL RIGHTS 169 bination of franchises, embracing all things which the corporation is given power to do, and this power to do is as much a thing of value and a part of the intangible property of the corporation as the franchise to be. Fran- chises to do go wherever the work is done. The Southern Pacific Railway Company is a corporation chartered by the state of Kentucky, yet within the limits of that state it is said to have no tangible property and no ofiBce for the transaction of business. The vast amount of tangible property which by lease or otherwise it holds and oper- ates, and all the franchises to do which it exercises, exist and are exercised in the states and territories on the Pa- cific slope. Do not these intangible properties — these franchises to do — exercised in connection with the tangi- ble property which it holds, create a substantive matter of taxation to be asserted by every state in which that tangible property is found?" (18). See § 291, below. The Western Union Telegraph Company, which has a New York franchise, may be taxed upon a fair share of the value of this under the "unit rule" by Missouri when it does business there (19). See § 175. § 181. Situs of property for inheritance taxes. A kind of taxation recently adopted in many states, and of in- creasing importance, is the so-cailed inheritance tax — a tax upon the right to succeed to property, whether by in- heritance or by will, upon the death of its owner. Ob- viously this right can be exercised only when the state has jurisdiction over the right to succession, and this right, (18) Adams Express Co. v. Ohio, 166 U. g. 185, 224-5. (19) Western Union Telegraph Co. v. Missouri, 190 U. S. 412. 170 CONSTITUTIONAL LAW being intangible, presents various nice problems as to its situs. It will be convenient to divide the discussion of these into four parts : (a) Property in a state owned by a resident decedent. (b) Property out of the state owned by a resident de- cedent. (c) Property in the state owned by a non-resident decedent. (d) Property out of the state owned by a non-resi- dent decedent. § 182. Same: Domestic property of resident decedent. Example : A, a citizen of Illinois dies, leaving land and ■ chattels in Illinois, and debts due him from Illinois debtors. Clearly the descent of all this property upon A's death is governed solely by the law of Illinois, and, for the privilege of permitting its descent to A's heirs or persons named in his will, Illinois may exact a tax. As to this there is no controversy. § 183. Same: Foreign property of resident decedent. Example : A, a citizen of Illinois, dies leaving land and chattels situated in Ohio, and debts due him from Ohio debtors. What succession tax can be collected by Illinois? As regards land, the succession has always been con- trolled by the state where it is located. Illinois cannot confer or take away anybody's right to succeed to land in Ohio, and so there is nothing for Illinois to tax (20). The personal property in Ohio may stand differently. At common law, each state permitted personal property (20) Matter of Swift, 137 N. Y. 77. FUNDAMENTAL RIGHTS 171 mthin its borders to descend according to the law of the residence of the owner, upon the latter 's death. If this is still the law of Ohio, then Illinois may tax the recipi- ents of the personal property in Ohio for exercising in their favor the privilege permitted to Illinois by Ohio (21). In such a case both Illinois and Ohio might levy an inheritance tax; Ohio for permitting the law of Illinois to govern, and Illinois for permitting particular persons to succeed to the property. On the other hand, Ohio may pass a statute providing specifically how personal prop- erty in the state shall descend upon the owner's death, regardless of his domicile. In this case there is nothing that can be controlled by Illinois, and so Illinois could levy no inheritance tax. Similarly, at least until Ohio expressly deals with the matter differently by statute, Illinois may say who shall succeed to the Ohio debt owed to A in Illinois; for at common law this matter also was permitted to be gov- erned by the law of the decedent's domicile. Stock in a foreign corporation, owned by a resident of Illinois, is likewise subject to a succession tax by Illinois upon the death of the owner (22). § 184. Same: Domestic property of non-resident ieeedent. Example: A, a citizen of Ohio, dies leaving land and chattels situated in Illinois, stock in an Illinois corporation, and debts due him from Illinois debtors. He also owns stock in an Indiana corporation, and notes and bonds due him from Indiana debtors. These latter (21) (See note 20.) (22) In r» Merriam's Estate, 141 N. Y. 479. 172 CONSTITUTIONAL LAW stock, notes, and bonds are kept in Illinois, though neither creditor, debtor, or corporation is in that state. What property is subject to an Illinois succession tax? As regards the land and chattels in Illinois, Illinois can of course control the succession to them, and so has the right to tax the succession. Can it tax the succession to the Illinois debt, it having been previously decided that a debt is not taxable property where the debtor is? It has been held that the transfer of the debt can be con- trolled by Illinois laws, because the transfer can only be made effective through jurisdiction over the debtor, in compelling him to pay (23). A creditor of the Ohio owner of the Illinois debt could have come into the Illinois courts and compelled the Illinois debtor to pay his debt to him in satisfaction of his claim against the Ohio owner of the Illinois debt. This jurisdiction over the transfer of the Illinois obligation enables Illinois to tax its transfer at the death of the owner, although it could not tax it as property in the state. (See §176, above.) Illinois may also tax the succession to the stock of Illi- nois corporations, no matter where the owner lives, nor where the stock certificates are kept. There is no diffi- culty here, inasmuch as the stock itself has a taxable situs in the state, in addition to the control the state can exercise over its transfer at the domicile of the corpora- tion (24). The succession to notes and bonds kept in Illinois may be controlled by Illinois, even though as property they (23) Blackstone v. Miller, 188 U. S. 189. (24) Matter of Bronson, 150 N. Y, 1. FUNDAMENTAL RIGHTS 173 would not be taxable there, in the absence of both debtor and creditor or any business done in Illinois with the credits thus represented. Illinois has power to control the transfer of these documents upon the death of the owner, and may exact a tax for permitting any particular kind of a transfer (25). It would seem that the same should be held as to foreign stock certificates kept in Illinois, but there is one New York decision to the contrary (26). § 185. Same: Foreign property of non-resident dece- dent. Evidently where none of the property, nor the owner of the property, nor the transfer of it are within the jurisdiction there is nothing upon which a state may impose succession taxes. One doubtful case may be men- tioned here. Suppose A in Ohio owns bonds of an Illinois debtor and keeps them in Ohio. The bonds are payable to bearer and upon the death of A suppose it to be the law of Ohio that his son gets title to the bonds. It has been held that this leaves nothing for Illinois to tax, although the debtor lives in Illinois (27). Inasmuch as the debt must be collected in Illinois, perhaps Illinois might tax its transfer, upon the reasoning in Blackstone v. Miller, re- ferred to above, providing its law was so framed as to affect the bonds when issued. Section 2. What is a Public Puepose foe Taxation! § 186. Discharge of governmental functions. The power of taxation may be validly used to assist in the discharge (25) Matter of Whiting, 150 N. Y. 27. (26) (See note 25.) (27) Matter of Bronson, 150 N. Y. 1, 5-: Vol. XII— 13 174 CONSTITUTIONAL LAW of any governmental function, whether the function be exercised directly by public officers, or by private persons who are permitted to make a profit from the discharge of these functions. Governmental activities connected with making, interpreting, and enforcing laws are the com- monest illustrations of functions discharged directly by public officers. They include all of the machinery by which laws are made and enforced, public order kept, and justice administered. A considerable extension of public functions beyond these essentials is increasingly notice- able. Public schools and charitable institutions are everywhere maintained; parks and public amusements are increasingly provided; gas, electricity, and water are in many places furnished directly by the public ; drainage and irrigation works are coming to be likewise main- tained ; and the public health and safety are increasingly made the subject of direct public action. As regards any activity really benefiting the public, and which may reasonably be thought to be more advantageously con- ducted by the public than by private enterprise, it is difficult to pronounce it not a public purpose. Especially is this true of all supervisory, regulative, and adminis- trative activities. The legitimate scope of these will constantly expand with the complex needs of society. At present several functions that are fairly govern- mental in their nature are generally permitted to be sup- plied by private enterprise, subject to public regulation. Of this character are railroads, street railways, telegraph and telephone, express service, and in many places the furnishing of light, heat, and water. An analogous activ- FUNDAMENTAL RIGHTS 175 ity, the transportation of mail, has in this country always been a government monopoly. Banking and insurance are activities that in some countries are and in all countries doubtless could be assumed by the government. All of these functions may be assisted by public taxation, even though they are carried on by private persons for profit. They do not cease to be public functions merely because the government for the time being thinks private enter- prise a more advantageous method of conducting them. Early in our history public aid was not uncommonly given to railroads, canals, and banks, and such aid has almost uniformly been upheld (28). § 187. Objects not in fact of public benefit. If money raised by taxation is given to a single individual to be used by him as he pleases, or for some purpose really not public, as to build himself a house, this is invalid. Taxes thus exacted for purely private purposes take property without due process of law. ''To lay with one hand the power of the government on the property of a citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation" (29). § 188. Demoralizing public benefits. Suppose instead of revenue derived from taxation being paid to a single private individual or a few such, that it is divided among a great many; a sufficient number of persons being thus (28) Sharpless v. Philadelphia, 21 Pa, 147; Railroad Co. v. Otoe, 16 Wall. 667. (29) Loan Association v. Topeka, 20 Wall. 655, 664. 176 CONSTITUTIONAL LAW benefited so that it c (86) Manigault v. Springs, 199 U. S., 473. 244 CONSTITUTIONAL LAW tools and necessary property as may prevent the debtor from becoming a charge upon the community (37). This is because the public has an interest in human freedom and in preventing pauperism. It has no such substantial interest in the teinns of pecuniary compensation for a loan. § 244. Reserved power of states to repeal corporate charters. After the Dartmouth College case the American states began by constitutions and statute to forbid the grant to corporations of irrevocable charters or tax ex- emptions. This has been continued until today such grants are forbidden by the constitutions of almost all American states. This reserved power to alter or repeal the corporate charter is of course a part of the obliga- tion of the original charter contract, if indeed that can be called a contract which may be revoked by one of the parties at pleasure. Where this reserved power of revo- cation has been exercised, the courts have been required to pass upon its effect. In one case Massachusetts in- corporated a street railroad and empowered it to haul freight through the streets of Boston. Afterwards, in the exercise of the state's reserved power, its charter was repealed and a new company was incorporated to do its business. The effect of this repeal was stated by the Supreme Court as follows: ''One obvious effect of the repeal of a statute is that it no longer exists. Its life is at an end. Whatever force the law may give to transactions into which the corpora- tion entered and which were authorized by the charter (37) Von Hoffman v, Quincy, 4 Wall., 535, 553. FUNDAMENTAL RIGHTS 245 while in force, it can originate no new transactions de- pendent on the power conferred by the charter. . . . If the essence of the grant of the charter be to operate a railroad, and to use the streets of the city for that pur- pose, it can no longer so use the streets of the city. In short, whatever power is dependent solely upon the grant of the charter, and which could not be exercised by un- incorporated private persons under the general laws of the state, is abrogated by the repeal of the law which granted these special rights, ''Personal and real property acquired by the corpora- tion during its lawful existence, rights of contract, or choses in action so acquired, and which do not in their nature depend upon the general powers conferred by the charter, are not destroyed by such a repeal; and the courts may, if the legislature does not provide some special remedy, enforce such rights by the means within their power. The rights of the share-holders of such a corporation, to their interest in its property, are not annihilated by such a repeal, and there must remain in the courts the power to protect those rights" (38). § 245. Protection of property acquired before repeal. A striking instance of the above doctrine, which protects property acquired by the use of corporate powers even after the corporate powers themselves are repealed, oc- curred in New York. The legislature granted a repeal- able charter to a corporation which was given power to acquire a street railway franchise from New York city, (S8) Greenwood v. Marginal Freight Co., 105 U. S., 13, 18-19, 21. 246 CONSTITUTIONAL LAW if one could be obtained from that municipality. This franchise, under the New York constitution, could be acquired only from the city, and no state law made such a franchise repealable. By gross bribery the corpora- tion acquired the Broadway street railway franchise from New York city. Upon the discovery of the facts the charter of the corporation was revoked by the legis- lature, and several of the participants in the bribery were sent to the penitentiary. Most of the corporate stock at this time was in the hands of innocent stockholders, and it was held that the Broadway franchise, an irrepeal- able contract of great value, was part of the property of the defunct corporation that survived for the benefit of its stockholders. The powers of the corporation ceased upon its repeal, but the Broadway franchise, not being a power granted to the corporation by the state, was not revoked and could not be under the Federal Constitution (39). It may thus readily happen that a corporation with a repealable charter may own as prop- erty an irrepealable franchise. State constitutions that forbid all irrepealable grants to corporations by the state, have never gone so far as to forbid all such grants by municipalities, though such grants are commonly lim- ited to terms of years. § 246. Effect of state bankruptcy laws. It was early admitted that if a state bankruptcy law was in force when a contract was made in that state, the provisions of the bankruptcy law became a part of the obligation of the contract, so that the latter was not impaired by the (39) People v. OBrien, 111 N. Y., L FUNDAMENTAL RIGHTS 247 discharge of the debtor in bankruptcy according to the provisions of this law (40). Where both the debtor and creditor were citizens of the state having the bankruptcy law and in which the contract was made, the matter was free from difficulty. A serious controversy arose over cases where the parties were citizens of different states. Suppose the contract were made in New York between a creditor living in Kentucky and a New York debtor, the New York bankruptcy law being then in force. If the Kentuckian leaves New York and the New Yorker then is discharged from his debt by a New York proceeding in bankruptcy to which the Kentuckian is not a party, does this discharge bind the Kentuckian? The Federal courts finally held it did not, probably not because the discharge impaired the obligation of a contract, which it could hardly do because not being a subsequent law; but because jurisdiction over the Kentuckian is necessary in such a proceeding (41) to affect his property, the debt due him. As regards state bankruptcy laws, then, the result of the decisions is this: A state bankruptcy law can dis- charge only contracts made in the state, between citizens of that state, and subsequent to the bankruptcy law. Citi- zens of other states can only be affected by a discharge in bankruptcy when they become parties thereto. § 246a. Foreign suit on contract. As regards con- tracts made in one state, but sued upon and enforced (40) Ogden v. Saunders, 12 Wheat. 213. (41) Ogden v. Saunders, 12 Wheat, 213; Baldwin v. Hale. 1 Wall., 223. 248 CONSTITUTIONAL LAW in another state, it seems clear that the creditor cannot demand that the latter state give him the same remedies that he would have been entitled to in the state where the contract was made. Anyone who chooses or is compelled to bring suit outside of his own jurisdiction must ex- pect such remedies only as are afforded by the law of the place where he sues. This law was never a part of the obligation of the contract made elsewhere, and so the creditor from another jurisdiction must take the domes- tic law and remedies as he finds them (42). § 247. Foreign contracts. The contract clause of the Constitution does not apply to contracts made in a for- eign country with corporations of that country, even though suit may be brought upon such contracts in the United States. Legislation of the foreign government, impairing the obligation of the contract, will be respected here (43). § 248. Laws increasing the obligation of contracts. State legislation that provides a better remedy upon a contract, or a more certain enforcement, or which vali- dates a void contract does not violate this clause of the Constitution (44). Such laws certainly do not impair the obligations of contracts, though they may perhaps be arbitrary or unjust, and may violate other constitutional provisions, such as the prohibition against taking prop- erty without due process of law. (42) Bank of United States v. Donnally, 8 Pet, 361. (43) Canada Southern Railway Co. v. Gebhard, 109 U. S., 527. (44) Satterlee v. Mathewson, 2 Pet., 380. PART III. THE FEDERAL GOVERNMENT. CHAPTER Xn. FEDERAL POWERS AND THEIR EXERCISE. § 249. General principles of construction: Strict ver- sus liberal. As has already been said (§§27, 28) the two great principles of construction applicable to the powers of the United States are, first, that it can exercise no powers except those expressly or by fair implication granted to it in the Constitution; and second, that over such granted powers it has absolute control, and its legis- lation thereunder is paramount to all conflicting state laws. The importance of these principles demands some further discussion. Political parties in this country have long divided upon the question of interpreting the Constitution strictly or liberally. These distinctions are political in their nature. The duty of the judicial branch of the govern- ment is shown by the following quotation from Chief Justice Marshall: "This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is 249 250 CONSTITUTIONAL LAW there one sentence in the Constitution wliich gives coun- tenance to this rule? In the last of the enumerated pow- ers, that which grants, expressly, the means for can-ying all others into execution. Congress is authorized *to make all laws which shall be necessary and proper' for the purpose. But this limitation on the means which may be used, is not extended to the powers which are conferred; nor is there one sentence in the Constitution, which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do gentlemen mean by a strict construction? If they contend only against that enlarged construction which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, impoii;, and which are consistent with the general views and objects of the in- strument; for that narrow construction, which would cripple the government, and render it unequal to the ob- jects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it com- petent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded. ... As men whose in- tentions require no concealment, generally employ the words which most directly and aptly express the ideas THE FEDERAL GOVERNMENT 251 they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well-settled rule that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. . . . We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were con- ferred" (1). § 250. Implied powers. In McCullojch v. Maryland (2) the question arose whether Congress coaild charter a national bank. Congress has express power to collect taxes and borrow money. Was the power to create a banking corporation fairly inferable from these? Chief Justice Marshall said: "Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation excludes incidental or implied powers ; and which requires that everything granted shall be expressly and minutely described. ... A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit and of all the means (1) Gibbons v. Ogden, 9 Wheato-n, 1, 187 9. (2) 4 Wheat, 31G. 252 CONSTITUTIONAL LAW by which they may be carried into execution, would par- take of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, there- fore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. ... In considering this question, then, we must never forget that it is a con- stitution we are expounding. . . . 'The power of creating a corporation is never used for its own sake, but for the purpose of effecting some- thing else. No sufficient reason is, therefore, perceived, why it may not pass as incidental to those powers which are expressly given, if it be a direct mode of executing them. ... [It is urged] Congress is not empowered to make all laws, which may have relation to the powers conferred on the government, but such only as may be 'necessary and proper' (3) for carrying them into exe- cution [and], that it excludes choice of means and leaves to Congress, in each case, that one choice most direct and simple. . . . Is it true, that this is the sense in which the word 'necessary' is always used? Does it always im- port an absolute physical necessity, so strong that one thing, to which another may be termed necessary, can- not exist without that other? We think it does not. If reference be had to its use in the common affairs of the world, or in approved authors, we find that it frequently (3) Const, Art. I. sec. 8, § 18. THE FEDERAL GOVERNMENT 253 imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end is generally understood as employing any means calculated to produce the end, and not as be- ing confined to those single means, without which the end would be entirely unattainable. . . . We think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most bene- ficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional. ' ' The creation of a national bank was thus upheld. Similarly, although the United States is nowhere ex- pressly given the power of eminent domain, yet it may exercise it in the execution of other express powers (4). § 251. Powers implied from groups of other powers. **It is not indispensable to the existence of any power claimed for the Federal government that it can be found specified in the words of the Constitution, or clearly and directly traceable to some one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly defined, or from them all combined. It is allowable to group together any num- (4) Kohl. V. United States, 91 U. S., 367. The preamble to the Ck)iistitution confers no power uiwn the United States. Jacobson v. Mass., 191 U. S. 11, 22. Vol. XII— 18 2o4 CONSTITUTIONAL LAW ber of them and infer from them all that the power claimed has been conferred" (5). Thus, the Constitntion gives the United States express power to punish only four cranes, counterfeiting, felonies committed on the high seas, offenses against the law of nations, and treason; but Congress has of course implied power to punish the breaking of any Federal law, and to protect prisoners in its custody (6). A very strong in- stance of implied Federal powers are the various acts making paper a legal tender money. See §§ 310, 311, be- low. Instances of other implied powers will be found in the sections upon various Federal powers following this. § 252. Exclusive and concurrent powers. When a power is granted to the United States in the Constitution is it therefore denied to the states (exclusive power), or may they also exercise it so long as their laws are not in- consistent with Federal laws on the subject (concurrent power) ? The accepted rule has been judicially stated as follows: "The states may exercise concurrent or inde- pendent power in all cases but three : 1. Where the power is lodged exclusively in the Federal Constitution. 2. Where it is given to the United States and prohibited to the states. 3. Where, from the nature and subjects of the power, it must necessarily be exercised by the Federal government exclusively" (7). An instance of the first case is the power to borrow money on the credit of the United States. The states (5) Legal Tender Cases, 12 Wall., 457, 534. (6) Logan v. United States, 144 U. S., 263. (7) Oilman v. Philadelphia, 3 Wall., 713. THE FEDERAL GOVERNMENT 255 never had such a power, it being lodged exclusively in the Constitution. An instance of the second case is the power to tax imports. The states originally had this, but the Constitution gives it to Congress and prohibits the states to exercise it. An instance of the third class is the power of naturalization, which the states once had, which is given to Congress, but is not expressly prohibited to the states. The nature of the power is such that Congress alone may exercise it. See § 88, above. Instances of powers that are concurrent because not falling within any of these classes are the power to pass bankruptcy laws (8), to tax, and to make certain regula- tions of commerce (see § 284, below). § 253. Purposes for which Federal powers may be exercised. When it is said that Congress has complete control over all powers granted to it, does this mean that Congress may exercise such powers for any purpose, or to secure any result that it pleases; or can even the granted powers be exercised only for some purposes within the scope of the Federal powers? An illustration will show how important is this question. Congress is given by the Constitution no power directly to regulate lotteries in a state. If a state charters a lottery and makes it a part of its revenue system, it is acting wholly within its reserved powers, and Congress cannot directly inter- fere. Now Congress has control of the post-ofifice. May Congress exercise its postal powers to exclude lottery matter from the mails — not for the sake of the post-oflBce, nor in the exercise of any other Federal power, like that (8) Sturges v. Crowninshield, 4 Wheat, 117. 256 CONSTITUTIONAL LAW of regulating commerce or passing bankruptcy laws, but solely in order to hamper lotteries in a state! It has been held that this may be done (9). Likewise it has been held that Congress may forbid the carnage from state to state of lotterj' tickets under its power to regulate inter- state commerce, even though this power be here exercised for no strictly commercial purpose, but solely to prevent the moral and economic evils of lotteries in the state. ''The power of Congress to regulate commerce among the states is plenary, is complete in itself, and is subject to no limitations except such as may be found in the Con- stitution" (10). The most far-reaching application of this principle is in the recent case of McCray v. United States (11), where the United States imposed a tax upon the manufacture of artificially colored oleomargarine so high (as was as- sumed in argument) as to prevent its manufacture alto- gether. The Supreme Court said that the Constitution gave Congress power to lay taxes and that the purpose for which they were laid could not be investigated by the court, that being solely in the discretion of Congress. Under the operation of this principle there is almost no business or occupation in the United States (except per- haps managing land) which cannot be effectively regu- lated by Congress. The power to exclude from the post- oflfice and from interstate commerce, and to tax out of existence enables Congress virtually to prohibit in a state matters of the most local and domestic nature, pro- (9) In re Rapier, 143 U. S., 110. (10) Lottery Case, 188 U. S., 321, 356. (11) 195 U. S.. 27 See also Ellis v. V S.. 206 U. S. 246, 255-54 THE FEDERAL GOVERNMENT 257 vided that a majority of Congress wishes to prevent them in the country at large. § 254. Prohibitions upon the exercise of Federal powers. In various parts of the Constitution, notably in Article I, section 9, and in the amendments there are various general prohibitions upon the Federal govern- ment. These prohibitions limit the exercise of all powers to which they are applicable. Thus, while the United States has, as against the states, full power over the post- office and interstate commerce, yet these powers must be so exercised as not to violate these general prohibitions, like those forbidding unreasonable searches and seizures and the taking of property without due process of law in the Fourth and Fifth Amendments. The scope of these general prohibitions or guarantees is fully consid- ered in Chapters V to X, above. § 255. Reserved powers of the states. ' ' The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people" (12). From the nature of the Federal government, being one of delegated powers, it is not likely that this provi- sion places any additional constitutional limitation upon Federal action. Some authority, express or implied, must be found in the Constitution for all Federal activi- ties. In a considerable number of instances acts of Con- gress have been held invalid because not falling fairly within any grant of the Constitution. (12) Const., Amend. X. 258 CONSTITUTIONAL LAW Thus Congress has no power to forbid the sale in a state of dangerous ilhmiinating oil; or to forbid the wrongful use, in the internal commerce of a state, of registered trade-marks; or to regulate the liability of railroad employees for accidents occurring in the internal commerce of a state ; or to forbid persons in a state from harboring alien prostitutes, when not done in connection with their coming into the United States (13). In none of these cases was there anything to be found in the Constitution expressly or impliedly authorizing Congress to deal with the subject matter in question. It thus appears that acts of Congress may be invalid either (a) because, although in the exercise of a granted power, they exercise it in a forbidden way; or (b) because they are not in the exercise of any granted power. (13) rnited States v. DeWitt. 9 Wall., 41; Trade Mark Cases, 100 U. S., 25; Howard v. Illinois Central Railroad, 207 U. S., 463; Keller V. United States, 213 T. S., 138. CHAPTER XIII. TERRITORIES, DEPENDENCIES, AND NEW STATES. § 256. Cession of western lands to United States. When the Constitution was adopted there had already been ceded to the United States a great expanse of terri- tory between the Mississippi river and the western boun- dary of the thirteen original states. This territory had been previously claimed, to a various extent, by several of the states, and its cession to the general government was required as a condition to the accession of the smaller states to the Confederation. They felt that such great additions to the bulk of their larger neighbors would make relations between them upon anything like equal terms impossible; hence their insistence, particularly that of Maryland, that the larger states cede their claims to the western land to Congress. Article IV, section 3, of the Constitution contains pro- visions concerning this territory and the mode in which new states may be admitted to the Union. These provi- sions are quoted below in their proper places. § 257. Implied powers to annex territory. The Con- stitution contains no express grant of power to Congress to annex new territory to the country, and when the great Louisiana purchase was so suddenly made in 1803 there was much discussion of its constitutionality. Whatever 259 260 CONSTITUTIONAL LAW doubts were then felt have long since disappeared, and whenever our courts have referred to the matter they have declared that the power of the United States to make war and to make treaties included the power to acquire territory in either of these ways (1). The right of the United States to acquire territory by discovery and occupation has also been judicially affirmed (2). This is to be implied from the complete control over our external relations given to Congress by the Constitution. The power over these relations is denied to the states and now rests in the United States, except is so far as the exercise of particular powers may be expressly prohibited. Moreover, it is for the political departments of the government, the legislative and executive, to determine who is the sovereign of any territory whatever, and their decision is binding upon the courts. If these depart- ments recognize certain territory as under the jurisdic- tion of the United States, the political rights of the United States there can not be discussed in American courts. The same is true if some other nation is thus recognized as entitled to jurisdiction. Recent decisions illustrating this have been rendered concerning the Pan- ama Canal Zone and the Isle of Pines (3). § 258. Federal sovereignty in territories. Tlie Con- stitution, Article IV, section 3, §2, provides: (1) American Insurance Co. v. Canter, 1 Pet, 511, 542. (2) Jones v. United States, 137 U. S., 202. (3) Wilson V. Shaw, 204 U. S., 24; Pearcy v, Stranahan, 205 U. S., 257. THE FEDERAL GOVERNMENT 261 "The Congress shall have power to dispose of and make all needful rules and regulations respecting the ter- ritory or other property belonging to the United States ; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state." It was early held that the United States had full gov- ernmental power over the territories, implied from the power to acquire the territory itself, as well as expressly conferred in the clause above quoted (4). In the states, the national government is sovereign only in regard to subjects committed to it by the Constitution. On all other matters the state governments are sovereign. In the territories the United States unites the powers of both national and state governments. Congress may govern the territories by its own direct legislation, or it may delegate all or part of tliis legislative power to terri- torial legislatures, commissions, or even executives and judges (5). § 259. Application in territories of constitutional pro- hibitions. The only serious questions concerning Federal power over the territories have been as to the applicabi]- ity there of certain constitutional limitations uponjthe po wers of t he United St ates. In various parts of the Constitution, particularly in the first ten amendments, (4) American Insurance Co. v. Canter, 1 Pet. 511; Mormon Church V. United States, 136 U. S., 1. (5) Dorr v. United States, 195 U. S., 138. A full history of the government of United States territories before 1871 is given in Clinton V. Englebrecht, 13 Wall., 434. 262 CONSTITUTIONAL LAW there are a variety of prohibitions upon tlie actions of the United States government. (a) By the express language of some of these prohibi- tions they limit the power of the government only in re- spect to the states. Such instances are "no tax or duty shall be laid on articles exported from any state," and "no preference shall be given by any regulation of com- merce or revenue to the ports of one state over those of another" (6). (b) The express language of at least one prohibition limits the power of the Federal government ever^^where within its jurisdiction. *' Neither slavery nor involun- tary servitude . . . shall exist within the United States or any place subject to their jurisdiction" (7). (c) Some prohibitions expressly apply only within the '* United States." For instance, "All duties, imposts, and excises shall be uniform throughout the United States" (8). The guarantee of citizenship by birth is in similar language; "All persons bom ... in the United States . . . are citizens of the United States" (9). (d) The great majority of the prohibitions upon the United States government do not expressly state or clearly show to what territory they are applicable. This includes all of the first nine amendments which consti- tute the Federal bill of rights. (6) Art. I, sec. 9, §§ 5 and 6. (7) Amend. XIII. (8) Art. I, sec. 8, § 1. (9) Amend. XIV, sec. 1. THE FEDERAL GOVERNMENT 263 § 260. Spanish cessions of 1898. Power to acquire "unincorpora.ted" territory. The earlier acquisitions of territory by the United States formed a contiguous body of territory, all situated within latitudes readily inhabit- able by the white race, . and all held with the ultimate prospect of its being admitted to the Union as states, as each local division of it might become thus qualified in property and population. Alaska alone, acquired in 1867, was an exception to this statement, but its geographical location and sparseness of population prevented its pre- senting any important political problems. By the treaty of peace that closed the Spanish war of 1898 the United States became the sovereign of an Asiatic archipelago containing several million inhabi- tants of an alien race, nnused to our customs and laws, and apparently unfitted for a full measure of local self- government. This novel situation has compelled a care- ful inquiry into the constitutional status of territory ac- quired by the United States. Before the Spanish war no serious questions had arisen regarding the status of te/ritory acquired by the United States and not yet admitted to statehood. No decision had ever turned upon the question whether annexed ter- ritory became an integral part of the United States, or was merely held as a dependency, like, for instance, an English colony. In 1820 Chief Justice Marshall had uttered a dictum to the effect that the United States was the name of our great republic, composed of states and territories, and that the District of Columbia and the territory west of tbe Missouri was not less within the 2G4 CONSTITUTIONAL LAW United States than Maryland or Pennsylvania (9a) ; but the matter received no thorough consideration until after the Spanish war. Porto Kico and the Philippines were acquired by treaty from Spain with the proviso that ' ' the civil rights and political status of the native inhabitants. . . . shall be determined by Congress." Shortly thereafter Congress passed an act taxing goods passing from Porto Kico into the continental parts of the United States. This was challenged on the ground that Porto Rico became by annexation a part of the United States, and that the Constitution (Art. I, sec. 8, §1) required duties to be uniform throughout the United States. ^K majority of the SujDreme Court held that while Porto Eico ceased to be a foreign country upon annexation (10), it did not therebj" become at once a part of the United States. The power to acquire territory implied also the power to pre- scribe the terms upon which it shall be held. By treaty and act of Congress annexed territory may be at once incorporated into the United States and be as much a part of this country as is one of the states; but, if the political departments of the government so desire, an- nexed teiTitory may be held and governed outside of the United States, virtually as a colony or dependency. Such territory is in the position of a British colony, which is neither foreign to Great Britain nor yet a part of the latter. It was held that the territory acquired from Spain, under the terms of the Spanish treaty and in (9a) Loughborough v. Blake, 5 Wheat, 317. (10) De Lima v. Bidwell. 1S2 U. S.. 1. THE FEDERAL GOVERNMENT 265 view of Congressional legislation, occupied this position, and, not being a part of the United States, Porto Rican duties need not be uniform with those in the United States (11).^^ § 261. Territorial classification of Federal jurisdiction. It thus appears that territory within which the United States may exercise authority falls into at least five dif- ferent classes: (a) The states of the Union. Example: Massachu- setts. (b) Annexed territory incorporated into the United States, but not yet admitted to statehood. Example: Alaska. (c) Annexed territory not yet incorporated into the United States, but governed as a dependency. Example : Porto Rico and the Philippines. (d) Territory temporarily occupied by the United States, for military or other purposes, but without an- nexation. Example: Cuba after the Spanish war until the withdrawal of the United States. (e) Territory within the limits of an organized for- eign country, over which the latter permits the United States to exercise some jurisdiction. Example : The juris- diction exercised by the American consular courts over American citizens in certain undeveloped countries like China. In each one of these five classes of territory, the ques- tion may be raised how far constitutional prohibitions upon governmental actions are applicable. An interest- (11) Downes v. Bidwell, 182 U. S., 244. 266 CONSTITUTIONx\L LAW ing series of cases, most of them decided since the Span- ish war, has furnished the material for answers. § 262. Prohibitions applicable in states and incorpor- ated territories, (a) All constitutional prohibitions upon the action of the Federal government apply in the states. This was the principal object in placing them in the Con- stitution. (b) In the incorporated territories all constitutional prohibitions apply to the Federal government, except those meant to be applicable to the states only. For in- stance, the question arose recently whether persons could be tried for crime in Alaska without a jur^^ (of twelve men) required by the Sixth Amendment to the Constitu- tion. It was held that the terms of the treaty by which Alaska was acquired and the subsequent legislation of Congress had the effect of incorporating Alaska into the United States, and that the Sixth Amendment therefore applied, even though it concerned merely a matter of judicial procedure (12). A similar decision has been made regarding the District of Columbia, which is at least in as favorable a situation as incorporated territory, inasmuch as it once formed a part of the state of Mary- land and was then certainly a part of the United States (13). § 263. Judiciary article applies in states only. One important part of the Constitution, though not made ex- pressly applicable to the states alone, has been held not (12) Rassmussen v. United States, 197 U. S., 516. (13) Oallau v. Wilson, 127 U. S., 540; Downes v. Bidwell. 182 V. S., 244, 261. THE FEDERAL GOVERNMENT 267 to apply to incorporated territory. This is the first clause of the judiciary article: ''The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office" (14). This clause has always been interpreted as applying only to United States courts in the states. In the incorporated territories Congress has habitually created courts whose judges hold office for short terms of years instead of dur- ing good behavior (15). These territorial courts exer- cise a local territorial jurisdiction which is derived from the power of Congress to govern the territories, not from the specific grant of judicial power to the United States in the judiciary article. The latter was designed only to regulate the exercise of Federal judicial power in the states which already had judicial systems of their own. As soon as a territory is admitted to the Union as a state its foraier territorial courts lose all jurisdiction whatever, and cannot even dispose of pending cases (16). § 264. Unincorporated territory, (c) Unincorporated territory, not being a part of the United States, is of course not entitled to the benefit of such prohibitions upon Federal action as apply to that action merely in (14) Art. Ill, sec. 1. (15) American Insurance Co. v. Canter, 1 Pet., 511. (16) Benner v. Porter, 9 How., 235. 26S CONSTITUTIONAL LAW the United States. Federal taxes and bankruptcy laws, for instance, must be uniform throughout the United States, but unincorporated territory may be treated dif- ferently. Similarly, the provision that all persons born in the United States shall be citizens would seem not to apply to unincorporated territory. In Downes v. Bidwell it was urged by counsel that if the United States could annex territory without making it a part of the United States, then it would not be bound by any of the prohibitions of the Constitution and could govern such unincorporated territory in any arbitrary manner it saw fit. These general prohibitions upon the Federal government are contained mainly in Article I, section 9, and Amendments I to X, XIII, and XV. They are not specifically confined to actions of the United States within the United States, but are general prohibi- tions, as for instance that Congress shall make no law prohibiting the free exercise of religion ; that no one shall be deprived of life, liberty, or property without due process of law; that all criminal trials shall be by jury; and the like. On the other hand it was urged that if all of these pro- hibitions applied to the United States in the Philippines, for instance, it would be very embarrassing, as the people there were quite unaccustomed to jury trials as a part of civil and criminal procedure. Upon this point Mr. Justice Brown said : "We suggest, without intending to decide, that there may be a distinction between certain natural rights, en- forced in the Constitution by prohibitions against inter- THE FEDERAL GOVERNMENT 269. ference with them, and what may be termed artificial or remedial rights, which are peculiar to om' own system of jurisprudence. Of the former class are the rights to one's own religious opinions and to a public expression of them, or, as sometimes said, to worship God according to the dictates of one's own conscience; the right to personal liberty and individual property; to freedom of speech and of the press ; to free access to courts of justice, to due process of law, and to an equal protection of the laws ; to immunities from unreasonable searches and seizures, as well as cruel and unusual punishments ; and to such other immunities as are indispensable to a free government. Of the latter class are the rights of citizenship, to suf- frage, and to the particular methods of procedure pointed out in the Constitution which are peculiar to Anglo- Saxon jurisprudence, and some of which have already been held by the states to be unnecessary to the proper protection of individuals. ''Whatever may be finally decided by the American people as to the status of these islands and their in- habitants — ^whether they shall be introduced into the sisterhood of states or be permitted to form independent governments — it does not follow that, in the meantime- awaiting that decision, the people are in the matter of personal rights unprotected by the provisions of our Constitution, and subject to the merely arbitrary control of Congress. Even if regarded as aliens, they are en- titled under the principles of the Constitution to be pro- tected in life, liberty, and property. . . . We do not de- sire, however, to anticipate the difiOiculties which would Vol. XII— 19 270 CONSTITUTIONAL LAW naturally arise in this connection, but merely to disclaim any intention to hold that the inhabitants of these ter- ritories are subject to an unrestrained power on the part of Congress to deal with them upon the theory that they have no rights which it is bound to respect" (17). These important suggestions have been applied in two recent cases, in which it was held that the requirement of grand and trial juries for the prosecution of criminals did not bind the United States government in Hawaii (18), or in the Philippines (19). § 265. Foreign territory temporarily occupied, (d) As regards territory temporarily occupied by this country, though not annexed, probably the Constitution does not apply at all. During the American occupation of Cuba after the Spanish war, the entire government was ad- minstered under American control. An American citizen who was alleged to have committed a crime in Cuba was arrested in this country to be sent back there for trial. The contention of the defendant and the answer of the court appear in the following quotation: "It is contended that the act of June 6, 1900, is uncon- stitutional and void in that it does not secure to the ac- cused, when surrendered to a foreign country for trial in its tribunals, all of the rights, privileges, and im- munities that are guaranteed by the Constitution to per- sons charged with the commission in this country of crime against the United States. Allusion is here made to the (17) Downes v. Bidwell. 1R2 U. S., 244. 282-3. (18) Hawaii v. Mankicbi, 190 U. S., 15^)7. (19) Dorr v United States, 195 U. S., 138. THE FEDERAL GOVERNMENT 271 provisions of the Federal Constitution relating to the writ of habeas corpus, bills of attainder, ex post facto laws, trial by jury for crime, and generally to the funda- mental guarantees of life, liberty, and property embodied in that instrument. The answer to this suggestion is that those provisions have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country" (20). § 266. Foreign consular jurisdiction, (e) It seems also that the Constitution of the United States does not apply to any actions of our government that may be authorized within foreign countries by the law there. If the Japanese government permits American consuls to conduct trials in Japan in the consular courts, no jury need be provided. ''The Constitution can have no operation in another country. When therefore the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree, the laws of neither one being obligatory upon the other" (21). § 267. Admission of new states into the Union. The Constitution provides, Article IV, section 3, § 1: "New states may be admitted by the Congress into this Union; but no new states shall be formed or erected within the jurisdiction of any other state ; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states con- cerned as well as of the Congress." (20) Neely v. Henkel, 180 U. S., 109, 122. (21) In re Ross, 140 U. S., 453, 464. 272 CONSTITUTIONAL LAW It was contemplated that new states, formed out of the territory owned by the United States, should be ad- mitted to the Union from time to time, as the various organized territories became fitted for this. The first new state admitted under this clause was Vermont in 1791, and the number has been increased until at this date (1909) thirty-three states have been admitted in ad- dition to the original thirteen. It is generally admitted today that the admission of a state to the Union is ir- revocable, and that the state can neither withdraw nor be excluded. "The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible states. When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obliga- tions of perpetual union and all the guarantees of repub- lican government in the Union, attached at once to the state. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. . , . There was no place for reconsidera- tion, or revocation, except through revolution, or through consent of the states. . . . Texas continued to be a state, and a state of the Union, notwithstanding the transac- tions [secession and Civil war] to which we have re- ferred" (22). § 268. Can new states be admitted with powers less than those of other states? A state can only be admitted upon the same footing as the other states and any attempt (22) Texas v. White, 7 Wall., 700. THE FEDERAL GOVERNMENT 273 by Congress in the terms of admission, either to increase its own powers or diminish those of the new state as com- pared with its neighbors, are invalid (23). Congress has at various times purported to limit in certain particulars the legislative powers of states newly admitted, like Utah, or ''reconstructed," like Mississippi, the former in respect to the future legalization of polygamy, and the latter in respect to the restrictions upon suffrage. These attempts are doubtless invalid (24). A distinction has been made, however, between terms of admission limiting the political rights of new states, and those limiting their rights with respect to property. Thus, provisions qualifying the right of Minnesota to deal with the public lands of the United States in the hands of the latter or its transferees have been upheld fis an agreement respecting property made by the new state upon its admission (25). (23) Coyle v. Smith, 221 TT. S. 559. (24) Sproule v. Fredericks, fi9 Miss. 89a ^25) Stearns v. Miunesota, 179 U. S., 223. CHAPTER XIV. REGULATION OF COMMERCE. § 269. Historical outline. Commercial difficulties ari- sing from the divergent legislation of the original states, and the discriminatory regulations of foreign countries to which America could oppose no united resistance, created perhaps the strongest single influence that led to the adoption of the Constitution. In the convention the southern delegates wished to forbid the United States from taxing exports or from prohibiting the slave trade ; and to restrict the national power to regulate commerce and to pass navigation laws. The interests of the north- ern commercial states were opposed to all these views, and a compromise was finally agreed upon. The United States was forbidden to tax exports or to prohibit the slave trade for twenty years. On the other hand Con- gress was given unrestricted power **to regulate com- merce with foreign nations, and among the several states, and with the Indian tribes." Tonnage taxes and duties on imports were denied to the states. All of these pro- visions ha^dng a commercial purpose may conveniently be discussed together. Section 1. Duties on Imports, Expoets, and Tonnage. § 270. State duties on imports prohibited. ''No state shall, without the consent of the Congress, lay any im' 274 THE FEDERAL GOVERNMENT 275 posts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws ; and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States ; and all such laws shall be subject to the revision and control of the Congress" (1). At the time the Constitution was adopted most of the imports to the United States from foreign countries en- tered the country through the ports of the two or three states having good harbors, notably New York and Rhode Island. These states, by levying duties upon imports, not only reserved this valuable source of revenue to them- selves, but were enabled to levy tribute upon all of the other states using imported goods. The impost duties levied by New York simply added that much to the price of the imported articles afterwards shipped from New York to other states, and the citizens of the non-import- ing states got no benefit from the taxes finally borne by them. It was at once recognized in the Philadelphia con- vention that the power to levy import duties should be placed in the hands of Congress, and that the revenue therefrom should belong to the national government. There was little objection, therefore, to the adoption of the clause quoted above. § 271. What is an import? The first question that nat- urally presents itself is whether this prohibition extends to goods imported from other states or only to those im- ported from foreign countries. The question was not directly presented to the Supreme Court until 1869, when (1) Const., Art. I, sec. 10, § 2. 276 CONSTITUTIONAL LAW it was decided, after a careful consideration of the his- torical meaning of the words used, that imports referred only to goods coming from foreign countries (2). Ob- viously the term applies only to property, not to free persons entering the country. § 272. What is a tax on imports? Of course many imports remain physically intact for a long time after importation and so it may be asked for how long after importation does the exemption from state taxation con- tinue? This was the question presented to the Supreme Court in the important case of Brown v. Maryland (3) which was decided in 1827. A law of Maryland, requir- ing a license fee from all importers who sold imported goods, was resisted. The view might have been taken that a tax upon imports was a tax imposed only on ac- count of or upon the occasion of the importation of prop- erty; and that a tax upon all property alike, domestic and foreign, after it had reached its destination in the state, was not a tax upon imports at all. This would ef- fectively have prevented a state from raising a revenue from a tax levied specifically upon imports, or discrimi- nating against them, and doubtless would have satisfied the purposes of the framers of the Constitution. Chief Justice Marshall, however, went further, and interpreted the clause to forbid a state's taxing imports at all, even by a general property tax, so long as the import had not been used, sold, or taken out of the original package in which it was imported. He also decided that a tax upon (2) Woodruff V. Parham, 8 Wall., 123. (3) 12 Wheaton, 419. THE FEDERAL GOVERNMENT 277 the selling of an article was substantially a tax upon the article itself and fell within the prohibition upon the latter. The principal reason for this decision was that other- wise it was impossible to prevent the importing states with good seaports from exacting tribute from the neces- sities of users of imported goods in other states. "When the importations were not made directly by persons in the state where they were used, it would be necessary to buy them from the original importer, and, if his state taxed them, even under a general tax, their price would be increased to the next purchaser. Therefore they were allowed to be sold once before being subject to any state taxation whatever. If not sold, but used or taken out of the original package by the importer, the necessity for an exemption for the above purpose of course ceased, and they could be taxed. Such was the origin and purpose of the now famous ''original package" doctrine. §273. Development of the "original package" doc- trine. The result of the decision in Brown v. Maryland is that stocks of imported goods, no matter how large, are exempt from all state or municipal taxation so long as they remain unsold in the original packages. Curi- ously enough, the question what constituted the original package did not come before the Supreme Court for over 110 years after the adoption of the Constitution. Then it arose in a case from New Orleans. An importer of dry goods in the city would order from Europe 500 dozen towels. The towels would be wrapped by the foreign manufacturer in small packages of several dozen towels 278 CONSTITUTIONAL LAW each, and 100 of these small separately wrapped packages would then be shipped to New Orleans in a large wooden packing case. The importer there would open the case and offer for sale the separately wrapped packages. These latter packages were never broken. Did the small parcels constitute the ''original package" protected by the imiDorting clause, or was the large wooden case the original package! The court decided that the latter was the true meaning, and that opening the large case and offering the small parcels for sale separately deprived them of their immunity from taxation (4). § 274. Same : How large must an * ' original package ' * be? Immediately after this decision, the court was called upon to settle how large a package must be in order to be an "original package," even if actually imported separately. Suppose cigarettes are imported in single boxes of ten each and beer in separate bottles, are these exempted from taxation until sold, not to the retailer, but to the consumer ? Under the commerce clause of the Con- stitution goods shipped from one state into another are free from certain kinds of state regulation so long as they remain unsold in the original package. This is fully discussed in §§ 296-98, below. A state prohibiting the sale of liquor or cigarettes within it might find its policy entirely defeated, by the importation into it of small separate packages of spirits or tobacco of a size adapted to the retail trade, through its inability to regulate the sale of interstate and foreign goods in the original pack- age. This phase of the matter was actually presented (4 J May v. New Orleans, 178 U. S., 496. THE FEDERAL GOVERNMENT 279 in Austin v. Tennessee. In 1900, single packages of cigarettes shii)ped into Tennessee separately were offered for sale as original packages in defiance of the laws of Tennessee to the contrary. The court said: *'The real question in this case is whether the size of the package in which the importation is actually made is to govern ; or, the size of the package in which bona fide transactions are carried on between the manufacturer and the wholesale dealer residing in different states. We hold to the latter view. The whole theory of the ex- emption of the original package from the operation of state laws is based upon the idea that the property is im- ported in the ordinary form in which, from time im- memorial, foreign goods have been brought into the coun- try. These have gone at once into the hands of the whole- sale dealers, who have been in the habit of breaking and distributing their contents among the several retail deal- ers throughout the state. It was with reference to this method of doing business that the doctrine of the ex- emption of the original package grew up. By taking the words * original package' in their literal sense, a number of so-called original package manufactories have been started through the country, whose business it is to manu- facture goods for the express purpose of sending their products into other states in minute packages, that may at once go into the hands of the retail dealers and con- sumers, and thus bid defiance to the laws of the state against their importation and sale. . . , Without undertak- ing to determine what is the proper size of an original package in each case, evidently the doctrine has no ap- 280 CONSTITUTIONAL LAW plication where the manufacturer puts up the package with the express intent of evading the laws of another state, and is enabled to carry out his purpose by the facile agency of an express company and the connivance of his consignee" (5). So far as the constitutional prohibition upon taxing im- ports is concerned, this interpretation is precisely in the spirit of the original interpretation that exempted ' * orig- inal packages." It was designed to enable non-importing states to purchase goods from importers resident in the importing states without having to pay taxes to the governments of the latter. This result is amply secured by protecting the wholesale trade in imports. § 275. State and Federal duties on exports forbidden. The Constitution, xVrticle I, section 9, § 5 provides: "No tax or duty shall be laid on articles exported from any state. ' ' This is a prohibition on the Federal government, and, with the one on the states already quoted ( § 270, above), forbids any tax whatever on exports in the United States. The word export in this clause applies only to goods exported to a foreign country. It does not apply to goods passing between the United States and territorial depend- encies like Porto Eico (6). § 276. What is a tax on exports? The general excise tax levied by the United States upon all property of a certain class alike, such as tobacco or cheese, is not a tax upon exports simply because some of these goods are (5) Austin V. Tennessee, 179 U. S., 343, 359-60. (6) Dooley v. U. S., 183 U. S., 151. I THE FEDERAL GOVEiRNMENT 281 afterwards actually exported, or even wheii they are manufactured under a contract for export. It is only when goods are taxed by reason of or upon the occasion of their exportation that it is a tax upon exports (7). The stamp tax imposed on bills of lading for any goods exported from the United States amounts to a tax on exports. Commercial usage almost necessarily requires that bills of lading be issued upon the occasion of export- ing, and a tax upon a necessary incident of export amounts to a tax upon the goods exported (8). § 277. State inspection laws. '*We feel quite safe in saying that neither at the time of the formation of the Constitution nor since has any inspection law included anything but personal property as a subject of its opera- tion. . . . What is an inspection ? Something which can be accomplished by looking at or weighing or meas- uring the thing to be inspected, or applying to it at once some crucial test. When testimony or evidence is to be taken and examined, it is not inspection in any sense whatever." Therefore the Supreme Court held invalid a law of New York requiring foreign immigrants to pay so-called inspection fees for ascertaining whether they were criminals, paupers, or orphans (9). "Eecognized elements of inspection laws have always been quality of the article, form, capacity, dimensions, and weight of package, mode of putting up, and marking and branding of various kinds, all these matters being (7) Cornell v. Coyne, 192 U. S., 418. (8: Fairbanks v. U. S., 181 U. S., 283. (9) People V. Comp, Gen. Transatlantique, 107 U. S., pp. 61, 62. 282 CONSTITUTIONAL LAW supervised by a public officer having authority to pass or not pass the article as lawful merchandise, as it did or did not answer the prescribed requirements" (10). The Constitution permits states, at least in the absence of Congressional prohibition, to lay duties on imports and exports sufficient to execute their inspection laws (§ 270, above). If the duties laid for this purpose are not too high for the law to be regarded as a bona fide inspection law the duties imposed are valid, apparently even though the court may think them somewhat exces- sive for their purpose. The Supreme Court has sug- gested that under the wording of this clause Congress is the proper tribunal to decide whether a fee, really for inspection, is excessive; and that the court cannot inter- fere (11). Where the alleged inspection fee is too high to have been intended in good faith solely for this pur- pose, the courts may pronounce it invalid as really not an inspection law at all but designed for other pur- poses (12). § 278. State tonnage duties forbidden. The Constitu- tion, Article I, section 9, § 3, provides: "No state shall, without the consent of Congress, lay any duty of tonnage. ' ' This does not prevent a state in which a vessel has a situs for taxation (§§ 173, 288) from taxing it upon its assessed property value, or even from imposing on it a €xed license fee for its employment in navigation, but it (10) Turner v. Maryland, 107 U. S., p. 55. (11) Patapsco Guano Co. v. No. Carolina, 171 U. S., p. 355. (12) Brimmer v. Rebman, 138 U. S.. 78. THE FEDERAL GOVERNMENT 283 apparently prevents a tax proportioned to tonnage, as $1 a ton, and so forth (13). When the imposition is not really a tax, but is compensation for the benefit of specific improvements or services, like improved waterways, wharves, or quarantine inspection, the charge may be according to tonnage (14). Compare § 290, below. Section 2. Interstate Commerce. General Concep- tions. § 279. Commerce clause. The Constitution, Article I, section 8, § 3, gives Congress power "to regulate com- merce with foreign nations, and among the several states, and with Indian tribes." The early decisions upon this clause were largely de- voted to determining whether the power to regulate inter- state and foreign commerce was exclusively with the United States, or was a concurrent power. Later the liti- gation was chiefly over the line to be drawn between the exclusive and concurrent parts of the power; and more recently the important decisions have concerned the ex- tent to which Congress may regulate matters incidental to commerce. It will be convenient to consider the sub- ject roughly in this order. § 280. What is commerce? In the earliest great case upon the subject. Gibbons v. Ogden (15), it was said by Chief Justice Marshall that commerce was intercourse — commercial intercourse in all its branches, including navi- gation and the carriage of passengers as well as goods. (13) State Tonnage Tax Cases, 12 Wall., 204, (14) Huse V. Glover, 119 U. S., 543. fl5) 9 Wheaton, 1. 284 COXSTITUTIOXAL LAW Fifty years later it was said ' ' commerce is a term of the largest import. It comprehends intercourse for the purposes of trade in any and all of its forms, including the transportation, purchase, sale, and exchange of com- modities." In 1877 it was decided that the business of sending telegraph messages was commerce (16), and more recently it has been held that the maintenance of a toll bridge or ferry for passengers crossing a river be- tween two states is also commerce. Usually it has been said that the intercourse must be "commercial," or for "trade purposes," but some re- cent opinions omit even this qualification. In the bridge case just referred to the court said: "The thousands of people who daily pass and repass over this bridge may as truly be said to be engaged in commerce as if they were shipping cargoes or merchandise from New York to Liverpool" (17). Many of those persons were no doubt crossing the bridge for non-commercial purposes, and it has never yet been decided whether a commercial pur- pose is essential to make the transit of persons or goods commerce. It has several times been decided that where inter- course is not involved in the transaction it is not commerce. Manufacturing, for instance, is not com- merce; nor is agriculture, nor mining, nor fishing. An early prosecution under the Federal anti-trust act, which forbade combinations in restraint of commerce among the states, failed when directed against a combination to (16) Pensacola Tel eg. Co. v. Western Union Tel eg. Co., 96 U. S. 1. riT) Covington Bridge Co. v. Kentufky. 154 U. S. 204. The busi- ness of a correspondence school is also commerce. International Ca r. Plgg, 217 U. S. 91. THE FEDERAL GOVERNMENT 285 manufacture sugar. ''Commerce succeeds to manufac- ture, and is not a part of it. ' ' The combination to manu- facture was not subject to Federal control, although a combination in selling the manufactured article would be (18). § 281. When is commerce interstate? When is com- merce carried on "among the states" or "with foreign nations" as contrasted with commerce in a single state*? Obviously the commercial power would be most ineffect- ive if confined to commerce at the instant when it was crossing a state line. Commerce carried on wholly within a state is subject to state regulation only, but if it crosses a state line the entire commercial transaction of which the crossing is a part is within the Federal power. This lis clearly illustrated by a case decided about 1870. A small steamer plied upon a Michigan river between ipoints wholly in Michigan. It did not run in connection [with any transportation line leading to other states, though some of the goods it carried were ultimately des- jtined for outside points. The Supreme Court held that the carriage of any such goods made the steamer engaged in interstate commerce and subject to the regulation of Congress. "So far as she was employed in transporting goods destined for other states, or goods brought from without the limits of Michigan and destined to places within that state, she was engaged in commerce between the states, and, however limited that commerce may have been, she was, so far as it went, subject to the legislation of Con- (18) United States v. Knight Co., 156 U. S., 1. Vol. xn— 20 286 CONSTITUTIONAL LAW gress. She was employed as an instrument of that com- merce ; for whenever a commodity has begun to move as an article of trade from one state to another, commerce in that commodity between the states has commenced. The fact that several different and independent agencies are employed in transporting the commodity, some act- ing entirely in one state, and some acting through two or more states, does in no respect affect the character of the transaction. To the extent in which each agency acts in that transportation, it is subject to the regulation of Congress" (19). Since then it has been said that "the regulation of sommerce implies as much control, as far reaching pow- ers, over an artificial as over a natural highway." In view of these statements it seems that Congress would have power to regulate practically every public highway and public means of transportation in the United States, including city streets and car lines ; for all of these to a certain extent are employed in transporting commodi- ties or persons who are moving on a journey into or out of a state. § 282. Beginning and ending of commercial transit. When commerce consists in transportation, the point of time at which it begins is when the subject of it is actually started on a continuous journey to another state, or is delivered to a carrier for such transportation. Prelim- inary movements for the purpose of making proper ar- rangements for its journey, or assembling it at the point where the real journey is to begin are not a part of the (19) The Daniel Ball, 10 Wall., 557 THE FEDERAL GOVERNMENT 287 interstate transportation. When the journey has once begun its continuous character is not destroyed when the movement is temporarily halted for the purposes of the journey, as in making railroad connections, or in caring for driven animals, or in waiting for high water to con- tinue the flotation of logs (20). On the other hand, if the transit of the property is stopped, not for a purpose incidental to the journey, but for some collateral busi- ness purpose, such as a sale, or to await further orders, its interstate journey has ceased (21). § 283. Transit across state border an essential part of transaction. Business or commerce which does not con- template as part of the transaction that anything (such as goods, persons, or intelligence), shall cross a state line is not interstate commerce. Thus, the making of an insurance contract in one state, by a company whose place of business is in another state, is not interstate commerce (22) ; nor is a contract in one state to sell property in another, no transportation between the two states being contemplated. On the other hand, the sell- ing of goods to be shipped out of a state, or their sale made upon coming into the state, or the making of con- tracts to bring them into the state are all part of inter- state commerce (23). § 284. Is Federal power to regulate commerce exclu- sive? For many years after the adoption of the Constitu- (20) Coe V. Errol, 116 U. S., 517. (21) General Oil Co. v. Grain, 209 U. S., 211. (22) Paul V. Virginia, 8 Wall., 168. (23) Robbing v. Shelby County District, 120 U. S., 489. 288 CONSTITUTIONAL LAW tion the members of the Supreme Court were much di- vided over the question whether the grant of commercial power to Congress was wholly exclusive, or whether it could also be exercised by the states until Congress acted inconsistently therewith. This conflict was finally brought to an end in 1851 by an opinion of Mr. Justice Curtis in the case of Cooley v. Board of Wardens (24), concerning a pilotage law of the port of Philadelphia. He said : *'The diversities of opinion, therefore, which have ex- isted on this subject have arisen from the different views taken of the nature of this power. But when the nature of a power like this is spoken of, when it is said that the nature of the power requires that it should be exercised exclusively by Congress, it must be intended to refer to the subjects of that power, and to say they are of such a nature as to require exclusive legislation by Congress. Now, the power to regulate commerce embraces a vast field, containing not only many but exceedingly various subjects quite unlike in their nature; some imperatively demanding a single uniform rule, operating equally on the commerce of the United States in every port; and some, like the subject now in question, as imperatively demanding that diversity which alone can meet the local necessities of navigation. ''Either absolutely to affirm or deny that the nature of this power requires exclusive legislation by Congress, is to lose sight of the nature of the subjects of this power, and to assert concerning all of them what is really appli- (24) 12 How.. 299. THE FEDERAL GOVERNMENT 289 cable but to a part. Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress." Since then this rule has always been accepted, but nat- urally there has been some difference of opinion a3 to what commercial subjects are in their nature national and what are local. For the next fifty years the work of the Supreme Court in interpreting the commercial clause consisted chiefly in deciding where this division line lay in a number of classes of cases. This will be dis- cussed below. Section 3. State Legislation Disceiminating Against Inteestate Commeece, § 285. Discriminatory legislation prohibited. The principal legislative powers by which interstate or for- eign commerce may be affected are the powers of taxa- tion and of regulation (including prohibition). It was early settled that any state legislation discriminating against interstate or foreign commerce in favor of domes- tic commerce was invalid. The securing of virtual free trade between the states was one of the prime objects of the Constitution, and hence all discriminatory legislation affects the subject in a national respect and thus is beyond the power of the states under the rule laid down in the Cooley case. This is so whether the discrimination takes the form of taxation or regulation. No state can require a discriminatory license fee for the sale of goods pro- 290 CONSTITUTIONAL LAW duced outside of it (25). It cannot require the inspec- tion of interstate goods when offered for sale, if it does not require a like inspection of domestic goods; nor can it forbid the sale of imported liquor in the sta^e if it per- mits domestic liquor to be thus sold (26). Section 4. Stati? Taxation Affecting Interstate Commerce Without Discrimination. § 286. Taxes upon transportation. The transportation of goods into or out of a state — an activity which is the very essence of interstate commerce — cannot be taxed by a state at all, even without discrimination. This was first clearly decided in a case where Pennsylvania had attempted to levy a small tax upon every ton of freight carried in the state. As regards interstate transporta- tion the Supreme Court held that such a tax was a re- straint upon the right to have the subjects of commerce pass freely from one state to another, and that this was a matter national in its nature and so unfit for local regu- lation (27). Later it was decided that a percentage tax upon gross receipts from transportation was equally bad as to the receipts from interstate transportation, on the ground that these were so closely connected with the transportation that it was in substance the same as tax- ing the transportation. License taxes for the privilege of engaging in interstate transportation are likewise in- valid; and so are taxes upon the business of soliciting (25) Welton v. Missouri, 91 U. S., 275. (26) Scott V. Donald, 165 U. S., 58. (27) State Freight Tax, 15 Wall., 232. THE FEDERAL GOVERNMENT 291 interstate transportation, as was held in a case where California attempted to tax a railroad agency in San Francisco for soliciting passengers going east to take a particular line between Chicago and New York (28). The same principles have been applied to the transmission of intelligence by telegraph. § 287. Taxes upon sales. A state tax upon the sale of goods in the state at the time is valid, even though the goods have been brought from outside and are offered for sale in the original packages (29). If, however, the goods to be sold are outside of the state, and the business done in the state consists in selling or soliciting the sale of goods afterwards to be shipped in to fill the order, the state cannot tax this selling or soliciting (30). The prin- ciple seems to be that a state may place no impediments 5pon the transfer of goods from one state to another. Such transfer comprises not only the actual transporta- tion of the goods, but such previous activities as directly lead to the transportation, including selling for delivery in the state, and the soliciting of such sales or transpor- tation. On the other hand, when the goods have arrived at their destination, tliey may be taxed as property or dealings with them may be taxed to provide revenue for the government, in return for the protection it affords to the property or to the business done with it. Such taxa- tion affects interstate commerce too slightly to be a na- tional matter. This principle seems to be the one upon (28) McCall V. California, 13G U. S.. 104. (29) Woodruff v. Parham, 8 Wall., 123. (30) Robbins v, Shelby County Taxing District, 120 U. S., 489. 292 CONSTITUTIONAL LAW which rests the well-known distinction between a state's power to tax a pedler selling interstate goods and a drummer selling them. The pedler has his goods with him and may be taxed ; the drummer is taking orders for goods to be shipped into the state, and may not be taxed. § 288. Taxes upon property engaged in interstate com- merce. While goods shipped from one state to another are actually in transit they are probably not taxable by any state (31), but as soon as they reach their destina- tion they are taxable in that state, even though they are still in the "original package" (32). The prohibition against state taxation of imports extends only to goods from foreign countries. Goods from other states are not imports (§ 271, above). The fact that goods have been brought into the state for sale and that such sales are being solicited will not prevent the goods being taxed by the state as property, without discrimination. The instruments by which commerce is carried on, like cars and ships, may be also taxed as property in any state where they have a situs for taxation. See § 173, above. § 289. Taxes as conditions precedent to engaging in interstate commerce. State taxes upon property or upon business, otherwise valid, may be imposed in such a man- ner as to be an unconstitutional interference with inter- state commerce. Suppose, for instance, that a telegraph company is taxed upon its capital in the state, with a proviso that if it does not pay the tax it may thereafter (31) Coe V. Errol, 116 U. S., 517. (32) Brown v. Houston, 114 U. S., 622. THE FEDERAL GOVERNMENT 293 do no business within the state. This manner of collect- ing the tax is unconstitutional, as forbidding the exercise of a right protected by the United States Constitution from state interference — the right to do interstate com- merce. The tax may be collected by seizing and selling the company's property, or in any other way that does not impose upon it a legislative prohibition to exercise a Federal right (33). Similarly, it would not be doubted that a state statute was invalid that attempted to deprive persons of the right to use the post-office, for non-compli- ance with some state regulation. § 290. Tolls for the use of improvements. Suppose a state improves the condition of a waterway or road over which interstate commerce is conducted, and charges toll for the use of the improvement. A bona fide and reason- able toll for such a purpose is valid. It is distinguished from a tax upon interstate transportation, upon the ground that it is a reasonable compensation for the use of a definite improvement made under state authority, while a tax is simply a measure for revenue irrespective of any specific benefit obtained therefrom (34). Upon a similar principle are justified wharfage fees, bridge tolls, and quarantine and inspection charges, all of which are fairly proportional to services rendered or facilities afforded. Compare § 278, above. § 291. Taxes upon franchises, and compensation for their grant. As has been explained elsewhere in this (33) Western Union Telegraph Co. v. Massachusetts, 125 U. S., 530. (34) Huse V. Glover, 119 U. S., 543. 294 CONSTITUTION^VL LAW article (§ 180, above), a franchise is a privilege grant- able by the government at its pleasure, which cannot be exercised without such a grant. The government that grants a franchise may, in the absence of a contract to the contrary, tax it as property at its fair value ; or may impose upon it an excise tax measured in any reasonable manner; or, if the franchise be revocable, it may tax it quite arbitrarily as the price of not revoking it (35). A tax upon a corporate franchise, therefore, is not subject to the same limitations as taxes upon property and busi- ness. If a state measures the tax upon a coi'porate fran- chise by the gross receipts from the business done, this is valid, even though the receipts are from interstate commerce. It is not a tax upon the commerce, but upon the franchise which the state created at pleasure, and which it may therefore tax (36). In so far as a corpo- rate franchise consists merely of the power to do inter- state commerce, a state cannot tax it if it has been granted by another state or by the United States, for this would be the taxation, not of a particular privilege created by itself, but of a privilege created by another sovereignty and used only in the exercise of a Federal right. As a state is not obliged to grant a franchise at all, it may make such pecuniary conditions as it pleases when the grant is made, including an exaction of a large per- centage (20^) of the receipts from transportation, even (35) California v. Central Pacific Railroad Co., 127 U. S., 1, 40-42. (36) Maine v. Grand Trunk Railroad Co., 142 U. S., 217. THE FEDERAL GOVERNMENT 295 though these are largely derived from interstate com- merce (37). § 292. Taxes indirectly affecting commerce. Of course any tax on property or business must be paid ultimately out of the capital or receipts of the business, and if any part of the business is interstate commerce this ulti- mately bears its share of the tax, no matter upon what it is directly imposed. Such indirect effect of taxation, however, does not regulate interstate commerce in any national aspect, and so is within the concurrent power of the states. For instance, Georgia imposed a tax upon the business of conducting an employment agency to hire laborers to be employed beyond the limits of the state. Of course the laborers who were hired went out of the state, thus engaging in or becoming the subject of interstate commerce, but the tax upon the business of securing laborers to work elsewhere was so incidentally connected with the actual transportation that it was not invalid (38). Section 5. State Eegulation Affecting Interstate CoMMEECE Without Discrimination. § 293. Regulation of transportation: Rates. The in- creasing importance to the public of transportation has in recent years enormously increased the amount of leg- islative regulation, state and Federal, which it has re- ceived. Some of the most important cases ever decided under the commerce clause have dealt with the question (37) Railroad Co. v. Maryland, 21 Wall., 456. (38) Williams v. Fears, 179 U. S., 270. 296 CONSTITUTIONAL LAW of the respective fields of the state and Federal govern- ments in regulating transportation. The great case upon state regulation of interstate railroad rates is that of the Wabash Railway Company, decided in 1886 (39). An Illinois statute forbade any railroad to charge as much for hauling freight or passengers any distance within the state as it at the same time charged for the same service over a greater distance upon the same road. This being interpreted by the Illinois courts to include inter- state traffic, the law was held unconstitutional by the United States Supreme Court. The entire interstate journey must be treated as a unit, and to permit one state to prescribe the rate for services to be performed partly in other states, and in the price of which citizens of other states have an equal interest, would be for a state to interfere with interstate commerce in one of its national aspects. This decision was at once followed by the estab- lishment of the Federal Interstate Commerce Commis- sion, by which interstate rates are now regulated. The principle of this decision has been extended to all cases where any part of the through journey from point to point passes outside of a single state, even though both ends of the journey are in one state. Thus, New York may not regulate rates between New York and Buffalo, when the goods pass through Pennsylvania on the way; nor may California regulate ocean rates be- tween California points, where the vessel goes upon the high seas (40). Nor may a state require that a purely (39) 118 U. S., 557. « (40) Ilauley v. Kansas City, etc.. Railway Co., 187 U. S., 617. THE FEDERAL GOVERNMENT 297 internal rate be not higher than an interstate rate for the same distance, as this puts an effective pressure upon the amount of interstate rates. When a state regulates its internal rates it must do so with reference only to the earnings and expenses of internal traffic. Interstate re- ceipts and expenses must be disregarded (41). See p. 307. § 294. Same: Services. As regards state regulation requiring certain kinds of service from transportation companies, these are upheld unless they substantially hamper the carrier in conducting its interstate business. Instances of the latter are: Compelling through inter- state trains to make an unreasonable number of local stops, making unreasonable rules about furnishing cars for interstate shipments, regulating the delivery of tele- graph messages in other states, and requiring separate coaches for whites and negroes in interstate travel. §295. Same: Instruments, agents, liability, etc. These phases of interstate transportation may usually be regulated by the states without involving any matter of national importance. The speed of interstate trains in the state may be regulated, their engineers may be re- quired to be examined for color blindness, the heating of passenger trains by stoves may be forbidden, contracts exempting railways from liability for negligence may be forbidden, and freight trains may not be permitted to run on Sunday except with perishable freight (42). § 296. Conditions precedent and prohibitions upon en- gaging in interstate commerce. Just as a state may not (41) Smythe v. Ames, 169 U. S., 46C, 540 ff. (42) Most of the cases upon the subject are cited in C. C. C. ft St. Louis Railwav v. Illinois, 177 U. S., 514. 298 CONSTITUTIONAL LAW make the payment of a tax a condition precedent to exer- cising the Federal right of engaging in interstate com- merce, neither may it make a compliance with any state regulation a like condition precedent. Thus, though a state may require that persons engaged in foreign com- merce shall report various particulars about persons brought into the country, a similar report of certain facts about the vessel may not be required as a condition precedent to engaging in interstate commerce; nor can an express company be required to have a certain actual capital in order to do interstate business in a state (43). From this it would seem clear that state legislation abso- lutely forbidding interstate commerce would ordinarily be invalid. Even foreign corporations may not be for- bidden to do interstate business in a state, either abso- lutely or upon conditions (44), though of course a corpo- ration may be made to submit to conditions as the price of a corporate charter from a state, which it could not otherwise obtain (45). Compare § 291, above. § 297. Same: Liquor prohibition cases. Some recent cases in which the Supreme Court has dealt with this question have excited extraordinary interest on account of the important social and economic factors involved. An Iowa statute forbade the manufacture, sale, or trans- portation into the state of any intoxicating liquors, with certain unimportant exceptions. The prohibition upon (43) Sinnot v. Davenport, 22 How., 227; Crutcher v. Ky., 141 U. S., ; 47. (44) Pembina Co. v. Pennsylvania, 125 U. S., 181, 190; Crutcher v, Kentucky, 141 U. S., 47, 57. (45) Abhiey v. Ryan. 153 U. S.. 436, 440-41. THE FEDERAL GOVERNMENT 299 manufacture was upheld as preceding oommerce, under the principle discussed in § 280, above (46). The provi- sion against transporting liquors into the state was held unconstitutional as affecting in a national aspect a legiti- mate article of commerce in the interstate transportation of which other states than Iowa were interested (47). Then followed the great case of Leisy v. Hardin (48) in 1890, involving the remainder of the statute. In favor of the prohibition of the sale in Iowa of liquor brought from other states, it was urged that the admitted social and economic effects of liquor selling made its regulation in each state a local rather than a national matter. If the public policy of a single state were opposed to liquor selling this was primarily a matter of local self -protec- tion rather than a matter for national consideration, and so the law should be upheld. On the other side it was argued that Iowa could no more compel the rest of the country to cease interstate commerce with Iowa in liquor than in any other commodity, so long as liquor was gen- erally regarded as a legitimate subject of commerce. It was admitted that states might exclude articles in bad condition, like infected rags or diseased meat, but not articles irrespective of condition or quality. The Su- preme Court took the latter view and declared the statute unconstitutional, holding that the Federal right to en- gage in interstate commerce continued after the goods had been transported into the state until they had been (46) Kidd V. Pearson, 128 U. S., 1. (47) Bowman v. C. & N. Railway Co., 125 U. S., 465. (48) 135 U. S., 100. 800 CONSTITUTIONAL LAW sold in their original package, or the package broken, or the contents used, applying the "original package" doc- trine explained in § 272, above. Innnediately after this decision Congress passed a law (the AVilson act) providing that liquors transported into any state should, upon anival there, be subject to the operation of state laws (the power of Congress to enact such a statute is discussed in § 301, below). The word ''arrival" in this statute has been interpreted to mean delivery to the consignee at the ultimate destina- tion, not merely arrival within the borders of a state (49), so that a state still cannot forbid the shipment into it of intoxicating liquor. But it may tax and probably forbid the soliciting in it of sales of liquor to be shipped into the state (50). §298. Same: Later cases. Some years after the Leisy case the court passed upon a Massachusetts statute for- bidding the sale in the state of oleomargarine colored to look like butter, even though healthful and properly labelled. This was upheld, even as applied to interstate oleomargarine, on the ground that it was a reasonable means of preventing fraud (51). More recently a New York statute forbade any one to possess dead game in the state during the season when its killing was forbidden. This was held by the Supreme Court validly to forbid the possession in the state of game lawfully killed else- where and shipped into New York, on account of the (49) Rhodes v. Iowa, 170 U. S., 412. (50) Delamater v. South Dakota. 205 U. S., 93. (51) Plamley v. Massachusetts, 155 U. S,, 461. THr FEDERAL GOVERNMENT 301 ease with which the statute could otherwise be avoided (52). It is difficult to see why the enforcement of its prohibition laws is not as good a local purpose as the en- forcement of a state game law, and if interstate com- merce may be forbidden to enforce the latter, it would seem at least as reasonable to do so for the former. The reasoning in Leisy v. Hardin has not met with general acceptance. Diseased animals, or those likely to convey disease, may be excluded from a state for a period of time rea- sonably necessary to prevent danger from contagion (53). § 299. Regulations indirectly affecting interstate com- merce. State regulations that affect interstate commerce only indirectly are generally valid. For instance, a state may obstruct navigable waters (at least where the head of navigation is in the state) by bridges or dams in mak- ing local internal improvements, although interstate commerce by water is thus physically impeded (54) ; it may enact quarantine, pilotage, and inspection laws; it may regulate grain elevator rates, even though part of the grain passing through the elevator is in interstate .commerce ; it may protect its game, by forbidding it to be killed for shipment out of the state (55) ; rules of evi- dence may be enacted for interstate transactions; and corporations doing business in the state may be required to submit to many regulations, even though they are do- ing some interstate commerce. (52) Sllz V. Hesterberg, 211 U. S., 31. (53) Smith V. St. Louis & S. W. Ry., 181 U. S., 248. ^54) Willamette Bridge Co. v. Hatch, 125 U. S., 1. J 55) Geer v. Connecticut, 161 U. S., 519. Vol. XII— 21 302 CONSTITUTIONAL LAW Section 6. Power of Conoeess Over Interstate and Foreign Commerce. ! I § 300. Power of Congress complete and paramount. It \ has been said repeatedly by the Supreme Court that, j whatever may be the concurrent powers of the states j in the absence of Congressional action, when Congress chooses to act it has complete and paramount control over the entire subject, and all of its incidents. Con- gress has never chosen to enter a great part of this possi- | ble field of legislation, but what it has already done gives a fair idea of the extent of its powers. As regards inter- j state transportation, Congress has authorized the con- struction of interstate railways and bridges, and has reg- ulated interstate railway rates throughout the country; it has forbidden combinations of railroads to maintain interstate rates, and more recently has even forbidden the formation of a single corporation to own the stock of two competing railways (56) ; it has absolutely for- j bidden the transportation of lottery tickets from one state to another ( § 253, above) ; it has condemned locks and dams for public use in interstate commerce, and may presumably do the same with railroads and telegraph lines. As regards the instruments and agencies of trans- portation Congress has regulated pilots, lighthouses, and quarantines; it has enlarged or obstructed rivers and harbors; it has compelled railways to use safety appli- ances and air-brakes on interstate freight trains; it has established qualifications for marine oflBcers, and has (56) Northern Securities Co. v. United States, 193 U. S., 1»7. THE FEDERAL GOVERNMENT 303 regulated the rights, duties, and liabilities of ships, sea- men, passengers, and shippers engaged in commerce by water; and a law regulating the liability of interstate railroads to their employees has been upheld in principle, though declared invalid for including internal as well as interstate commerce (57). It has since been repassed by Congress, confined to interstate commerce. On the other hand, it has been said that an employee's membership in a labor union is not closely enough related to interstate commerce to enable Congress to forbid a railroad to dis- charge an employee solely on account of such member- ship (58). As regards the buying and selling of interstate goods, the United States has enacted the meat inspection and pure food laws, designed to exclude from interstate traffic unhealthful or adulterated food products; it has for- bidden combinations of capital in restraint of interstate trade, and also combinations of employees or labor unions to boycott interstate goods (59). So long as Congress regulates matters directly affect- ing interstate commerce, that is, the transportation of goods from state to state, or the selling of goods to be delivered in interstate trade, or the buying of goods im- mediately after their arrival from another state, there is no doubt that the power of Congress is complete, sub- ject only to the general prohibitions of the Constitution upon the exercise of all Federal powers, such as the Fifth (57) Howard v. Illinois Central Railway Co., 207 U. S- 46f». (58) Adair v. United States, 208 U. S., 161. (59) Addyston Pipe Co. v. United States, 175 U. S., 211; Loewe v. Lawior, 208 U. S., 274. 304 CONSTITUTIONAL LAW Amendment (60). The principal questions upon which courts are likely to differ in the future concern the ex- tent of congressional power to regulate matters that af- fect interstate commerce only incidentally. If the con- nection is too remote Congress cannot act, but here is much room for difference of opinion. ^ 301. Congressional power to enlarge the field of state action. After the decision in Leisy v. Hardin and the passage of the Wilson act permitting the states to regu- late interstate shipments of liquor after their arrival in the state (§ 297, above), the constitutionality of the Wilson act was at once attacked. It was urged with much force that if the Constitution made the regulation of this matter exclusively for Congress, Congress could not dele- gate its own exclusive powers to the states. The Su- preme Court decided that Congress's complete power over the subject enabled it to determine what matters did not require national regulation, and at what point state regulation might begin, and so upheld the act (61). How far Congress might go in making such determina- tions is unsettled. A possible distinction has been sug- gested between permitting the states to regulate the sales within their boundaries and permitting them to forbid contracts to ship goods into the state, the latter transac- tion necessarily taking place in more than one state, and BO perhaps not even permissible to a state by act of Congress (62). (60) Monongahela Co. v. United States, 148 U. S., 312. (61) In re Rahrer, 140 U. S., 545. (62) Rhodes v. Iowa, 170 U. S., 412, 424. THE FEDERAL GOVERNMENT 305 Section 7. The Maeitime Power. §302. Extent of jurisdiction. The Constitution, Article III, section 2, § 1, provides that the Federal judi- cial power shall extend to all cases of admiralty and maritime jurisdiction. In England the admiralty juris- diction extended only so far as the tide ebbed and flowed. England being a small island the ebb and flow of the tide fairly measured the limits of navigability of its riv- ers; but, when it was attempted to apply a similar test to the great interior rivers and lakes of this country, difficulties at once appeared. At first the tidal test was used, with the result of excluding Federal admiralty jurisdiction on the great lakes and over the greater part of our interior rivers. Later, this was overruled and the Federal admiralty jurisdiction now extends over all navi- gable waters of the United States (63). This does not include, however, all water in the country that is actually navigable. It comprehends only such navigable waters as are accessible by water from a state other than that in which they lie. For instance, Great Salt Lake, being in- accessible by water from any other state than Utah, is not a navigable water of the United States, and is not under the Federal admiralty jurisdiction. Lake Tahoe, on the boundary between California and Nevada, is a Federal water, because each part of it is accessible by water from another state. The great lakes and most navigable rivers in this country are Federal waters, but a part of a river may be so obstructed by falls or dams (63) The Daniel Ball, 10 Wall., 557. 306 CONSTITUTIONAL LAW that it is inaccessible by water from other states. In such a case it is a state water only (64). § 303. ArtiflciaJ waters. The Federal jurisdiction ex- tends over artificial waters, like canals, as well as nat- ural ones, provided only that the artificial water be con- nected with other navigable waters leading out of the state. The Erie canal is thus subject to Federal juris- diction (65). § 304. Maritime jmisdiction distinct from commercial power. The early cases confused the maritime jurisdic- tion of the United States with its jurisdiction over inter- state commerce, and refused to permit a Federal juris- diction over the purely internal navigation of a state. The later decisions have now established that the two subjects are distinct, although to considerable extent governing the same subject matter. Matters connected with the navigation of navigable waters of the United States are within the maritime jurisdiction, even though the commerce concerned is purely internal. On the other hand, if the commerce is interstate or foreign the Federal jurisdiction governs traffic by land as well as water (66). § 305. Federal jurisdiction is legislative as well as judiciaL The clause in the Constitution quoted at the beginning of this section is in the judiciary article, and purports to concern only the jurisdiction of the Federal courts. Other clauses of the same article confer upon the Federal courts a judicial jurisdiction for which there (64) Commonwealth v. King, 150 Mass., 221. (65) The Robert W. Parsons, 191 U. S., 17. (66) In re Garnett, 141 U. S.. 1. THE FEDERAL GOVERNMENT 307 is no corresponding legislative power. For instance, the Federal courts may hear controversies between citizens of different states over the title to land in one state, hut Congress may not legislate concerning state land titles in such a case. The Federal courts appear to hold that Congress has full legislative power over maritime affairs, in addition to the jurisdiction of the courts (67). The source of this power has never been clearly explained. Perhaps it is incidental to the full control the United States has over our external relations, inasmuch as for- eign water-borne traffic may traverse any water naviga- ble from the sea, if local regulations permit it, and in any event much of this traffic is upon the high seas. § 293 (continued). [See p. 297.] In the Minnesota Rate Cases, decided in June, 1913, the Federal Supreme Court held that the direct regulation of internal rates by a state was not invalidated, at least without the action of Congress, merely because the competitive effect of such rates virtually compelled carriers to make voluntarily a corresponding alteration of their interstate rates. CHAPTER XV. MONEY AND BANKING. § 306. Constitutional provisions. The clauses of the United States Constitution that somewhat directly con- cern the state and national powers over money and bank- ing are as follows: *'[The Congress shall have power] to borrow money on the credit of the United States ; . . . **To coin money, regulate the value thereof, and of for- eign coin. *'No state shall coin money; emit bills of credit; [or] make anything but gold and silver coin a tender in pay- ment of debts" (1). These provisions were agreed to in the Philadelphia convention without serious controversy. The various ex- periments with paper money that were tried during the Eevolution and just afterwards by a number of the states had produced general conviction upon this point among the commercial classes who exercised the principal influ- ence in favor both of the formation and the adoption of the Constitution. §307. Bills of credit. There being no prohibition against the United States government issuing bills of (1) Art. I, Bee. 8, §§ 2 and 5; nee. 10, § 1. 308 THE FEDERAL GOVERNMENT 309 credit it has done this freely upon various occasions. The first was during the war of 1812. The prohibition upon the issue by states of bills of credit has been liberally interpreted in favor of the bor- rowing power of the states. In only one instance has the Federal Supreme Court held obligations issued by a state to be void as bills of credit. In 1821 Missouri passed a statute authorizing state loans of sums less than $200 to its citizens on personal securities. The loans were to be made by issuing certificates in denominations between 50c and $10, which were to be receivable for all taxes and for the salaries and fees of state officers. The faith of the state was pledged for the redemption of these cer- tificates, and one-tenth of them were to be retired annu- ally. A majority of the Supreme Court held these certifi- cates to be bills of credit (2). On the other hand, the bills issued by state banks, which ordinarily circulated freely as currency, are not state bills of credit, even when the state owns all of the stock in the bank (3). Coupons of Virginia bonds, payable to bearer so that they could pass from hand to hand and receivable for all state taxes, were held not to be bills of credit (4). In a recent case Texas issued state war- rants to pay its debts, when there was no money in the treasury, in denominations of $1 and $5, printed on bank note paper of ordinary size, payable to bearer, and by law made receivable by public officers for all taxes and (2) Craig v. Missouri, 4 Pet., 410. (3) Briscoe v Bank of Kentuclty, 11 Pet., 257., (4) Poindexter v. Greenhow, 114 ./. S., 270. 310 CONSTITUTIONAL LAW public dues, and disbursable by the state as money to public creditors who would receive them at par as money. Payments due the state school fund from railroads might also be made in these warrants by any railroad who would receive them at par for its freight and passenger traffic. "When received by the state they were not to be reissued. The Supreme Court held these warrants not to be bills of credit. They were not bills of credit unless they were "designed to circulate, in the common transactions of business, as money"; and provisions designed to facili- tate their receipt by the state for its dues were not suffi- cient to indicate any improper purpose. The court said: ''The decisions of this court have shown great reluct- ance, under this provision as to bills of credit, to inter- fere with or reduce the very important and necessary power of the states to pay their debts by delivering to their creditors their written promises to pay them on demand, and in the meantime to receive the paper as pay- ment of debts due the state for taxes and other like matters" (5). § 308. Bank notes. As intimated in the preceding sub- section the states may authorize state banks to issue bills that circulate generally as currency, although not legal tender. One of the earliest acts of the United States government was to charter a national bank, which issued bank notes and conducted a general banking busi- ness, as well as aided the government in its fiscal opera- tions. The national power to create such an institution, (5) Houston & Texas Railroad Co. v. Texas, 177 U. S., 66. THE FEDERAL GOVERNMENT 311 after much discussion, was finally settled in the great case of McCulloch v. Maryland (6) in 1819. The powers of the United States to raise revenue and to disburse it involve, by implication, the power to make such use of its cash surpluses as to supply commercial needs for a stable circulating medium. Other governments having these powers and the power to borrow money find it con- venient to exercise them through the medium of national banks, and the United States can do the same. During the Civil war Congress taxed state bank notes out of existence in order that the field might be fully occu- pied by its own treasury and national bank notes, and this also was upheld as a further means of exercising these pov .rs (7). § 309. Legal tender. The power to prescribe what may legally be offered by a debtor to discharge such of his obligations as are payable in money is an important function of government. The location of this power, in the United States, is not specifically prescribed by the Constitution, but it is left to inference. The United "States is given the power to "coin money, regulate the lvalue thereof, and of foreign coin"; and the states are ^forbidden to coin money or imake anything but gold and silver coin a tender in payment of debts (§ 306). It |appears, therefore, that the states may make gold and silver coin a legal tender; but it does not appear ex- ipressly whether the United States may make its action in !this respect exclusive if it chooses. (6) 4 Wheat. 316. (7) Veazie Bank v. Fenno, 8 Wall., 533. 312 CONSTITUTIONAL LAW It has always been understood that the United States, having the power to coin money, has all customary inci- dental powers connected therewith, including that of making such coined money a legal tender (8). Can Con- gress also declare that nothing shall be legal tender ex- cept what it prescribes! During the "free silver" con- troversy of 1893 a law was proposed in Colorado making Mexican silver a legal tender for Colorado debtors. Be- fore Congress had prescribed what should be legal ten- der, such legislation would doubtless be valid. After the Ke volution, it is said that the scarcity of American coin caused legislation making English and Spanish coins a legal tender for a period. Doubtless Congress may ex- clude all state regulation of this matter if it Ci. '^oses, and its present legislation seems designed to cover the whole field. Some years ago a few states passed laws forbidding the so-called *'gold contracts," by which debtors agreed to pay in gold coin only, of a standard weight and fine- ness. Several judges of the United States Supreme Court have apparently concurred in a dictum that such laws are inconsistent with the act of Congress giving a legal tender quality to golH coin, the reasoning being that if Congress makes gold a legal tender a state cannot forbid it to be thus used, even exclusively, by private contract (9). § 310. Government notes as legal tender. Prior to the Civil war no attempt was made by the United States (8) Hepburn v. Griswold, 8 Wall., 608, 615. (9) Woodruff V. MisBisBippl. 162 U. S., 291, 306-9. THE FEDERAL GOVERNMENT 313 government to make its bills of credit a legal tender for private debts. The pressure of the war, however, and the increasing diflficulty of borrowing at reasonable rates of interest induced Congress in 1862 to pass an act mak- ing United States notes receivable for debts due to or from the United States, except import duties and inter- est on the public debt; and in addition to make them a legal tender in payment of all debts, public and private, within the United States, except as aforesaid. The constitutionality of this was much doubted, but the law was upheld in fifteen out of seventeen state courts before which it came before a case finally reached the Federal Supreme Court. Meanwhile it was decided that the ordinary "debts" did not include state taxes, which the states could require to be paid in coin; and that it did not include contracts by their express terms requir- ing the payment of coin (10). It referred only to obliga- tions payable in money generally. Finally, in 1867, a case came before the Supreme Court involving the constitutional question at issue. A debtor was sued upon a promissory note given and payable be- fore the legal tender acts were passed. After the passage of the acts the debtor tendered United States notes in payment of his debt, the tender was refused, and the notes were paid into court. The highest court of Ken- tucky declared the legal tender law unconstitutional, and, after over two years ' consideration of the case, the United States Supreme Court affirmed the Kentucky decision by (10) Lane County v. Oregon, 7 Wall., 71; Bronson v. Rodes, 7 Wall., 229. 314 CONSTITUTIONAL LAW a vote of five to three. The argument of the majority was, briefly, first, that Congress had no power to make its bills of credit legal tender at all, especially not to make them legal tender for debts already in existence, because this added very little to the value of the legal tender notes; and second, even if Congress had some power to make its notes a legal tender, it amounted to taking property without due process of law to make them legal tender for previous debts. A promissory note pay- able in money, given before 1862, was intended by both parties to be payable in what was then money — gold and silver coin, and a creditor could not be compelled to ac- cept paper money of a less value. If Congress could not require all creditors to accept 50c where $1 was due, it equally could not require creditors to accept a 50c paper dollar where a $1 coined one was due (11). § 311. Same (continued). Though the decision in Hep- burn V. Griswold was, strictly speaking, applicable only to cases like that, where the debt was in existence before the legal tender acts were passed, yet the reasoning of the majority seemed to deny to Congress the power to make United States notes legal tender even for future debts; and great uneasiness and consternation was cre- ated in business circles, the vast majority of then (1870) existing debts having been incurred since the legal tender acts and in reliance upon them. It was understood that the question was to be reargued and meanwhile business judgment upon the matter was suspended. There was one vacancy upon the Supreme Court when (11) Hepburn v. Griswold, 8 Wall., 603. THE FEDERAL GOVEiRNMENT 315 Hepburn v. Griswold was decided, and before the deci- sion was announced one of the majority judges resigned, though it did not take effect until after the announce- ment of the decision. Two new judges nominated previ- ously by President Grant were confirmed by the Senate on the day Hepburn v. Griswold was decided. A case then pending in court involved the question of the valid- ity of the acts as applied to contracts made after their passage, and by a vote of five to four the acts were de- clared constitutional on grounds that applied to con- tracts made before their passage as well as after. The acts were upheld on the grounds that they were reason- ably necessary to carry on the war, and so justified under the power to make war; and also because the United States, having the power to issue bills of credit and to borrow money, might do those things by any means within the usage of governments generally. This in- cluded borrowing by means of legal tender bills of credit. Governments generally have exercised this power in time of need, and contracts payable in money are made sub- ject to the power of the government to declare what shall be money when they are paid (12). After the war steps were taken for some time to reduce the United States legal tender notes, the so called ' ' green- backs"; but in 1878 Congress ceased this policy and ordered their reissue as fast as the old ones were can- celled or destroyed. At this date the act could no longer be justified as a war measure and so its opponents once more challenged its validity. It was finally upheld in (12) Legal Tender Cases, 12 Wall., 457. 316 CONSTITUTIONAL LAW 1884 as the exercise of a power legitimately implied from the power to borrow money and to issue bills of credit. Just as the power to coin money gave Congress by im- plication the power to make it a legal tender, so the power to issue bills of credit contained a similar impli- cation (13). 312. Present exclusive Federal control of money. The final result of the decisions discussed in this chap- ter has been to give the United States complete control over the money of the country, whether in the form of coin or paper currency, with full power to make such part of either a legal tender as may please Congress, and with like power to exclude the states wholly or partly from any regulation of the subject. Legal tender United States coin, demand certificates therefor, legal tender United States notes, national bank notes (which, though not legal tender, are ordinarily accepted for most debts), federal reserve notes, and federal reserve bank notes, now comprise the entire monetary circulating medium of this country. (13) JuilUard v. Greenman, 110 U. S. 421. CHAPTER XVI. VARIOUS FEDERAL POWERS. § 313. Scope of chapter. The more complex Federal powers, about the nature and extent of which there has been a considerable amount of litigation, have been treated in separate chapters. The principal remaining powers are dealt with briefly in this chapter. § 314. Federal powers of taxation. The Constitution, Article I, section 8, § 1, provides : ' ' Congress shall have power to lay and collect taxes, duties, imposts, and ex- cises, to pay the debts and provide for the common de- fense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States." Section 9, §§ 4 and 5, provide: '*No capitation, or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken. "No tax or duty shall be laid on articles exported from any state." Besides these express prohibitions, there is an implied restriction upon the United States, growing out of the nature of our dual government, which prevents Congress from taxing the essential governmental functions of a state. ''Thus limited, and thus only, the Federal power 317 Vol. xn— 22 318 CONSTITUTIONAL LAW of taxation reaches every subject and may be exercised at discretion" (1). § 315. Limitations on taxation: Uniformity. Export taxes. It is clear that the imiformity required is a geo- graphical uniformity, not a requirement, for instance, that a tax shall not be progressive as the value of what is taxed increases. Thus, a Federal progressive inherit- ance tax is valid, which taxes large bequests at a higher rate than small ones, provided that it applies in all of the states alike (2). (As to the meaning of the words "United States" in this clause, see § 260, above.) Exports, under the Constitution, mean only goods go- ing to foreign countries from a state (§ 275, above). The only case where a Federal tax has been held to be on exports is Fairbank v. United States (3), where a Federal stamp tax on bills of lading for exports was held to be virtually a tax upon exports because they were customarily accompanied by bills of lading. An excise tax on goods generally is not invalid merely because some of them may be intended for export later. § 316. Same: Direct taxes. The provision that Fed- eral direct taxes must be apportioned among the states according to population was apparently adopted by the convention without any precise understanding of what direct taxes were. Hamilton suggested that the words meant capitation taxes, taxes on land, and general taxes on all of the property of individuals. It was early held (1) The License Tax Cases, 5 Wall., p. 471. (2) Knowlton v. Moore. 178 U. S., 41. (3) 181 U. S.. 283. THE FEDERAL GOVERNMENT 319 that taxes on specific kinds of personal property and on occupations were excise taxes, and not direct. A Federal income tax levied during the Civil war was upheld as an excise tax, without inquiry as to the source of income. In 1894 Congress enacted another income tax, the valid- ity of which was elaborately argued before the Supreme Court. A majority of the court decided that taxes upon real estate or personal property in the mass were direct taxes, and that taxes on the income from such property was within the fair scope of the prohibition (4). In 1909 the Sixteenth Amendment to the Constitution was pro- posed to the states by Congress, permitting the govern- ment to levy an income tax without apportionment, and was adopted in 1913. A Federal inheritance tax is an excise upon the priv- ilege of succeeding to land or other property and is not a direct tax (5). §317. Same: Taxation of state governmental func- tions. Just as a state may not tax functions of the Fed- eral government, the Federal government may not tax state functions. The reasons for this are given in § 347, below. Thus, the United States may not tax the salary of state ofl&cers, nor any steps in state judicial proceed- ings, nor the property or borrowing power of a state or municipal corporation (including state or municipal bonds) (6). (4) Pollock V. Farmers Loan and Trust Co., 157 U. S., 429; 158 U. S., 601 (all of the previous cases on the subject are here fully discussed). (5) Knowlton v. Moore, 178 U. S., 41. (6) Pollock V. Farmers Loan and Trust Co., 157 U. S., 428, 584-6. 320 CONSTITUTIONAL LAW But the United States may tax a legacy to a state or city, and may tax the business of selling liquor, even though it is carried on by a state (7). This kind of a governmental function is not sufficiently vital to the state to escape Federal taxation. § 318. Bankruptcy. The powers of the United States over the subject of bankruptcy are dealt with fully in the article on that subject in Volume X of this work. § 319. Weights and measures. The Constitution, Article I, section 8, § 5, gives Congress power to ''fix the standards of weights and measures." Congress has never passed any law regarding the use of any particular standards of weights and measures in this country, although it has made the use of the metric system permissible. By common usage English stand- ards have generally been used in this country, except for scientific purposes, where the metric system is ordi- narily employed. There has been some question whether, in the absence of Congressional legislation, the states could act upon the matter. Several state courts have intimated that they could and one inferior Federal court has suggested the contrary. § 320. Postal powers. The plenary power of Congress over the entire subject of the post-office has already been noticed in another connection. See §§ 28, 253, above. The business may be made a government monopoly and private competition made criminal (8). Congress may classify mail matter, apply different rates of postage to (7) South Carolina v. United States, 199 U. S., 437. (8) United States v. Bromley, 12 How., 88; U. S. R. S., S§3&81-93. THE FEDERAL GOVERNMENT 321 different articles, and prohibit certain classes of matter altogether. It may exclude from the mails matter that is fraudulent or otherwise injurious to the public, and it may refuse to deliver mail to persons who are using the postal service for improper purposes. The reasonable administration of these rules may be delegated to postal officials (9). § 321. Possible extent of postal powers. Under its power to extend the limits of mailable matter, it would seem competent for Congress to raise the limit of weight so as to include all the parcel business now done by ex- press companies, which is included in the postal service of most European governments. It is quite possible that many articles of freight might also be included. The United States Supreme Court has left open the question whether telegraph lines may not be acquired by Congress as part of its postal business (10). This, too, is a com- mon practice of foreign governments. It seems likely that the United States could construct postroads, in- cluding railroads, for its postal service if it saw fit. An early Kentucky case admitted the existence of this Fed- eral power very broadly, and its existence has never been denied by the Federal Supreme Court (11). §322. Copyright and patents. The Constitution, Article I, section 8, § 8, gives Congress power ''to pro- mote the progress of science and useful arts, by securing (9) Public Clearing House v. Coyne, 194 U. S., 497. (10) Pensacola Telegrapli Co. v. Western Union Co., 96 U. S„ 1. (11) Dickey v. Maysfleld Turnpike Co., 7 Dana 113; California v. Pacific Railroad, 127 U. S„ 1. 322 CONSTITUTIONAL LAW for limited times to authors and inventors the exclusive right to their respective writings and discoveries. ' ' The principal questions concerning copyright and patents are fully treated in the articles upon these sub- jects in Volume IV of this work. The patent itself, which is the right to exclude all others from the manufacture, use, or sale of the things patented, is a Federal franchise, and as such cannot be taxed or otherwise interfered with by state law (12). The same is true of copyright (13). The patented article, however, may be taxed or regu- lated like other property by the states. The patent and the article manufactured thereunder are thus distinct kinds of property, the first one involving a Federal right (14). § 323. Maritime offenses and offenses against the law of nations. The Constitution, Article I, section 8, § 10, gives Congress power "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." The manner in which Congress may define piracies, for instance, is treated in the article on Criminal Law, § 4, in Volume III. The latter part of the Constitutional provision above quoted gives to Congress considerable power that has never been exercised. Under it, Con- gress apparently might enact laws to protect aliens in this country from violence or other misconduct, which, under the law of nations, might become a ground of com- (12) In re Sheffield, 64 Fed., 833. (13) People V. Roberts, 159 N. Y., 75. (14) Webber v. Virginia, 103 U. S., 334. THE FEDERAL GOVERNMENT 323 plaint for foreign powers. Under this clause, it has been held that the United States may punish the counterfeit- ing in a state of securities of any foreign government, though it could not punish the counterfeiting of a state bank-note (15). § 324. Indians. When the Constitution was adopted there still existed many powerful Indian tribes within the borders of the states, and in the western lands con- trolled by the United States. These tribes, even when in a state, ordinarily exercised a complete control over their internal affairs, and their relations with the states and the United States were governed by treaties made with formalities similar to those between independent nations. The Constitution gave the power to make treaties to the President and senate, and withdrew it from the states. In consequence, it was early held that the sole external power of governing the Indians lay with the United States (16). The only legislative power expressly conferred upon Congress by the Constitution in regard to the Indians is the power to regulate commerce with the Indian tribes (17). Prior to 1871 Federal control over the Indians was exercised chiefly by means of treaties, but in that year an act of Congress forbade further dealings with them by the treaty-making power. Later Congress legis- lated directly for the Indians, though situated in the (15) United States v. Arjona, 120 U. S., 479; Tennessee v. Davis, 100 U. S., 257, 280. (16) Worcester v. Georgia, 6 Pet, 515. (17) Const., Art. I. sec. 8, § 3 324 CONSTITUTIONAL LAW states, upon a variety of non-commercial subjects, among other things punishing them for crime. These laws were upheld, upon the ground that historically the Federal government had had full control over the Indian tribes through the war and treaty-making powers; but that these were not exclusive methods of dealing with the Indians, and might be supplanted by legislation (18). Only thus, it would seem, could the prohibition of Indian treaties be justified, for Congress doubtless could not forbid the President and senate to make treaties with genuinely independent nations. When Congress has by statute permitted Indians whoUv to leave the tribal relation and to become citizens of the United States, its special powers over the Indian ceases, and he is subject to the Federal jurisdiction only as other citizens are who may reside in the various states. But Congress may retain such partial tribal control as it sees fit (19). As to the citizenship of Indians by birth see § 85, above. §325. Aliens. *'It is an accepted maxim of intema/- tional law, that every sovereign nation has the power, as inherent in sovereignty and essential to self-preservation^ to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such condi- tions as it may see fit to prescribe. In the United States this power is vested in the national government, to which the Constitution has committed the entire control of in- ternational relations, in peace as well as in war. It belongs (18) United States v. Kagama, 118 U. S., 375. (19) Matter of Heff, 197 U S.. 488; Tiger v. Western Co., 221 U. S.. 286. THE FEDERAL GOVERNMENT 325 to the political department of the government, and may be exercised either through treaties made by the Presi- dent and senate, or through statutes enacted by Con- gress" (20). **The right of a nation to expel or deport foreigners, who have not been naturalized or taken any steps towards becoming citizens of the country, rests upon the same grounds, and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country" (21). These quotations correctly state the power of the United States respecting aliens, implied from the gov- ernment's complete control over our international rela- tions. The alien who has been stopped at our borders, although physically within our boundaries, is to be re- garded as if stopped just outside, so that he is not en- titled to invoke those constitutional guarantees which ap- ply to persons lawfully within the country, such as free speech and the like (22). The rigor of the Federal laws excluding or expelling Asiatics are constitutionally based upon these doctrines. The government's right to entrust the administration of these laws entirely to executive tribunals is discussed in § 138, above. The power to exclude or expel without jury trial does not include the power to punish aliens by imprisonment at hard labor for violating the exclusion (20) Nishimura Ekiu v. United States, 142 U. S., p. 659. (21) Fong Yue Ting v. United States, 149 U. S., 698. (22) United States v. Williams, 194 U. S., p. 292 ; United States v. Ju Toy, 198 U. S., 253, 263. 326 CONSTITUTIONAL LAW acts. Criminal punishment by the United States is sub- ject to the provisions of the Fifth Amendment (23). § 326. Federal treaty powers. The Constitution, Article II, section 1, provides with respect to the Presi- dent : * ' He shall have power, by and with the advice and consent of the senate, to make treaties, provided two- thirds of the senators present concur." There are no express limitations upon the power of the United States to make treaties, except those prohi- bitions, contained chiefly in Article I, section 9, and in the amendments, which limit the exercise of Federal powers of government generally. Doubtless the United States by treaty could not gain the power to tax exports or take property without compensation, these acts being ex- pressly forbidden. The important question which is not yet definitely settled is how far the United States may control, by treaty, matters which Congress could not control by legislation. For instance, Congress is given by the Constitution no power to regulate the holding of land in a state. If the United States, by treaty with France, permits Frenchmen to hold land in the United States, is this valid against a state prohibition of local land ownership by aliens? This has been upheld in several instances. * ' That the treaty power of the United States extends to all proper subjects of negotiation between our govern- ment and the governments of other nations, is clear. It is also clear that the protection which should be afforded to the citizens of one country owning property in another. (23) Wong Wing v. United States, 163 U. S., 228. THE FEDERAL GOVERNMENT 327 and the manner in which that property may be trans- ferred, devised, or inherited, are fitting subjects for such negotiation and of regulation by mutual stipulations be- tween the two countries. . . . The treaty power, as ex- pressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the government itself and that of the states. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the states, or a cession of any portion of the territory of the latter, without its consent. But with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter that is prop^ erly the subject of negotiation with a foreign country'* (24). Likewise it has been held in Massachusetts that a Federal treaty supersedes state laws regarding the administration of property of deceased aliens, and may limit the jurisdiction of the state courts in suits for alien seamen's wages (25). It has also been said that when any rights are secured to an alien by treaty. Congress may legislate to protect these rights, although but for such treaty aliens would be obliged to rely upon state laws only (26). § 327. Same: Another view. The view expressed above is perhaps the one commonly held in this country by students of the subject. It has been strongly urged, (24) Geofroy v. Riggs, 133 U. S., 258, 266. (25) Wyman, Petitioner, 191 Mass., 276. (26) Baldwin v. Franks, 120 U. S., 678, 683. 328 CONSTITUTIONAL LAW in opposition, that the framers of the Constitution could hardly have intended to reserve a control of local mat- ters in the states as against Congress, only to permit them to be regulated at pleasure by treaties between the United States and foreign nations. To the argument that the power to make such arrangements with foreign nations is too valuable to have been destroyed altogether by the Constitution, and so must be with the Federal gov- ernment, which alone can make treaties, it is pointed out that another clause of the Constitution permits a state, with the consent of Congress, to make agreements with foreign powers (27). It is suggested that this clause was intended to enable each state, with the consent of Congress, to make agreements with foreign countries respecting the reciprocal rights of their inhabitants (28). The recent controversy over the alleged treaty rights of Japanese children in the public schools of California illustrates the interest and importance of the subject. It cannot be considered as yet settled either way by the Federal courts. § 328. Federal districts within a state. The Constitu- tion, Article I, section 8, § 17, gives Congress power ' ' to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of (27) Art. I, sec. 10, §3. (28) William B. Mikell, in 57 American Law Register, 435, 528. THE FEDERAL GOVEiRNMENT 329 the state in wliich the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings. ' ^ The cession contemplated by this clause was made by Virginia and Maryland and constitutes the District of Columbia, in which are located the city of Washington and the seat of the Federal government. In 1841 the part of the District south of the Potomac river was ceded back to Virginia by Congress. The casual reading of the latter part of the clause quoted above might create the im- pression that this was intended to take the place of the acquisition of land by the Federal power of eminent domain. The distinction between the Federal powers over territory acquired in the two ways is this: The United States has exclusive jurisdiction in all particulars over land purchased with the consent of the state legisla- ture. Over land taken by eminent domain the United States has governmental powers for Federal purposes only. Thus, if land for a post office is purcha.sed in Chicago without the consent of Illinois, the state retains such jurisdiction over the property as does not interfere with postal purposes. If Illinois consents to the acqui- sition, it loses all jurisdiction not expressly retained (29). § 329. Military powers: Constitutional provisions. The Constitution, Article I, section 8, §§ 11-16, gives Con- gress power: "To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; **To raise and support armies, but no apprt)priation (B9) Fort Leav^aworth Railroad CJo. v. Lowe, 114 U. S., 525. 330 CONSTITUTIONAL LAW of money to that use shall be for a longer term than two years ; ' ' To provide and maintain a navy ; ''To make rules for the government and regulation of the land and naval forces; "To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions ; ''To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, re- serving to the states respectively the appointment of the officers, and the authority of training the militia accord- ing to the discipline prescribed by Congress." Section 9, § 2, provides : ' ' The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." § 330. Same: During actual hostilities. Tliese provi- sions give the United States all of the belligerent powers ordinarily exercised by sovereign nations in carrying on war, foreign or domestic. Although Congress alone may declare war, the executive department may recognize its existence in fact, in advance of congressional declaration, and may take appropriate military action to meet the situation. Thus, battles between the American and Mexi- can troops had taken place before Congress formally de- clared the existence of the Mexican war; and imjjortant armed collisions took place during the Civil war before THE FEDERAL GOVERNMENT 331 any action on the part of Congress. Indeed, the exist- ence of civil war is rarely accompanied by any public declaration of the fact, the test of its existence being that the regular course of justice in the courts is interrupted by the insurrectionary proceedings (30). When a state of war exists as a fact, the entire terri- torial area in insurrection may be treated as hostile terri- tory, and property and persons within it may be dealt with according to the laws of war, although in fact a considerable number of inhabitants be loyal citizens of the United States (31). As a part of its belligerent powers Congress may confiscate the property of resi- dents of the enemy's country, or of hostile territory, as well as all property so situated as to be of use to the enemy, no matter where the owner lives. This power was exercised to a considerable extent by Congress dur- ing the Civil war, and it was upheld as justified by the war power, and not invalid either as an ex post facto law, a punishment for crime without a jury trial, or a taking of property without due process of law (32). The state militia may be called into Federal service for the purposes specified in the Constitution, whenever the proper Federal authorities may decide this to be neces- sary. An act of Congress at present commits the de- termination of this necessity to the President. The United States is not dependent upon state militia, but may raise its own armies by volunteer enlistment or by (30) The Prize Cases, 2 Black, 635. (31) Ibid. (32) Miller v. United States, 11 Wallace 268. 332 CONSTITUTIONAL LAW draft or conscription, as was largely done during the Civil war (33). The period of beginning and ending hostilities is fixed by the public acts of the political departments of govern- ment, and will be followed by the courts. These periods differed slightly in different southern states during the Civil war (34). The rules of warfare proper to be observed between belKgerents, and the general conduct of hostilities under the rules of war are discussed on the article on Litema- tional Law in Volume X of this work. § 331. Military jurisdiction. In Ex parte Milligan (35) it was said by one of the judges : ' ' There are under the Constitution three kinds of mili- tary jurisdiction: one to be exercised both in peace and war ; another to be exercised in time of foreign war with- out the boundaries of the United States, or in time of re- bellion and civil war within states or districts occupied by rebels treated as belligerents; and a third to be ex- ercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of states maintaining adhesion to the national gov- ernment, when the public danger requires its exercise. The first of these may be called jurisdiction under mili- tary law, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be (33) Kneedler v. Lane, 45 Pa., pp. 274-323. (34) The Protector, 12 Wallace 700. (35) 4 Wall., 2. THE FEDERAL GOVERNMENT 333 distinguished as military government, superseding, as far as may be deemed expedient, the local law, and ex- ercised by the military commander under the direction of the President, with the express or implied sanction of Congress; while the third may be denominated martial law proper, and is called into action by Congress, or temporarily, when the action of Congress cannot be in- vited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within the districts or localities where ordinary law no longer adequately secures public safety and private rights." § 332. Same: Controverted questions. As regards the first two of these military jurisdictions, military law and military government, there is no conflict of opinion. As regards the third there was much controversy during the Civil war. The concrete question most frequently pre- sented was whether the President could suspend the writ of habeas corpus as to persons arrested by the govern- ment in parts of the country not the scene of insurrec- tion or hostilities, or could try them by martial law. Where Congress has not authorized this, a presidential suspension of the writ is apparently illegal (36) ; but a contrary practice was common during the Civil war and was subsequently ratified by Congress, or indemnity pro- vided for executive officers. The Supreme Court divided five to four in a dictum against the power of the President or Congress to cause the trial of men by martial law where the courts are open and not subject to hostile in- (36) Ex parte Merryman, Taney, 246. foi. xn— 23 334 CONSTITUTIONAL LAW terference, but it cannot be said that the question has been definitely settled (37). §333. Quartering soldiers in private houses. **No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law" (38). Happily it has not been necessary for the Federal courts to consider this provision in this country. It doubtless does not apply to territory in actual insurrec- tion or at the scene of actual hostilities, as military opera- tions in such places would be governed by the war power. See § 330, above. (37) Ex parte Milligan, 4 Wall., 2. (38) Const, Amend. III. CHAPTER XVII. INTERGOVERNMENTAL RELATIONS. § 334. States in many respects treated as foreign to each other. Except where controlled by some provision of the Constitution, express or implied, the states stand in the same relation to each other as do foreign countries. Particularly is this true with respect to their right to exclude each other's corporations, and with reference to their domestic laws and policies. The principal phases of these are treated in the article on Conflict of Laws, in Volume IX of this work. See §§ 149, 180, above. Section 1. Interstate Privileges and Immunities of Citizens. § 335. Scope of constitutional provision. The Consti- tution, Article IV, section 2, § 1, provides : ' ' The citizens of each state shall be entitled to all privileges and im- munities of citizens in the several states. ' ' This clause, in substantially the same form, was in the Articles of Confederation that preceded the Constitu- tion. It secured a close community of interest between the people of the several states, and secured them against the disabilities of alienage in all parts of the Union. Of the scope and purpose of the clause, the Supreme Court has said : 335 336 CONSTITUTIONAL LAW ' ' The constitutional provision there alluded to did not create those rights, which it called privileges and im- munities of citizens of the states. It threw around them in that clause no security for the citizen of the state in which they were claimed or exercised. Nor did it pro- fess to control the power of the state governments over the rights of its own citizens. Its sole purpose was to declare to the several states, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their ex- ercise, the same, neither more nor less, shall be the meas- ure of the rights of citizens of other states within your jurisdiction" (1). § 336. Enumeration of rights protected. As to what constitute the principal privileges and immunities of citi- zens in the several states that are protected against dis- crimination by this clause of the Constitution, an enumer- ation made by Mr. Justice Washington in 1825 has been frequently quoted with approval. He said : ''The inquiry is, what are the privileges and immuni- ties of citizens in the several states? We feel no hesita- tion in confining these expressions to those privileges and immunities which are, in their nature, fundamental ; which belong, of right, to the citizens of all free govern- ments ; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. (1) Slaughter House Cases, 16 Wall., 36, 77. THE FEDERAL GOVERNMENT 337 They may, however, be all comprehended under the fol- lowing general heads : Protection by the government ; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety ; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to ta\e, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state, may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privi- leges deemed to be fundamental ; to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be ex- ercised. These, and many others which might be men- tioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding pro- vision in the old Articles of Confederation) 'the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union' '^ (2). (2) Corfleld v. Coryell, 4 Wash. C. C, 371, 380, quoted in Blake v. McClung, 172 U. S. at 248-49. 338 CONSTITUTIONAL LAW §337, mnstrations of forbidden discriminations. N few particular instances of invalid discrimination by a state against the citizens of other states in favor of its own citizens may be mentioned. Maryland attempted to require traders, not permanent residents of the state, to take out licenses for the sale of goods. It was held that citizens of other states could not be prevented by this method from selling goods in Maryland upon the same terms as permitted to Maryland citizens (3). Likewise the property of citizens of other states cannot be taxed by a state at a higher rate or in a different manner from that in which it taxes the property of its own citizens (4). If a state permits its own citizens to hold property as trustees, or to take certain property by law, it must extend the same privileges to citizens of other states as to property within its borders (5). Nor may a state give to its own citizens who are creditors a preference over the citizens of other states, who are also creditors, in the dis- tribution of the assets of an insolvent business located within the state limits. All must be permitted to share on the same terms (6). § 338. Valid discriminations: Proprietary rights. It must not be supposed, however, that absolutely no dis- crimination may be made by a state in favor of its own citizens. Discriminations based solely upon citizenship are bad, but citizenship or permanent residence in a state may be necessarily accompanied by circumstances, (3) Ward v. Maryland, 12 Wall., 418. (4) Re Stanford's Estate, 126 Cal., 112. (5) Roby V. Smith. 131 Ind., 342. (6)^ Blake v. McClung, 172 U. S., 239. THE FEDERAL GOVERNMENT 339 or may give rise to situations, upon which a discrimina- tion may be reasonably and validly based, despite the fact that it is necessarily or usually associated with citi- zenship or non-citizenship in the state. For instance, the right to fish in the oyster beds of New Jersey, these being the common property of the citizens of the state, was re- served solely to New Jersey citizens by that state. This was upheld, as being but the exercise of ordinary prop- erty rights in excluding non-owners from the use of prop- erty, although ownership here happened to be restricted to New Jersey citizens (7). Similar discriminations in regard to fish, wild game, and the running navigable waters of a state have been sustained. Upon similar prin- ciples may be justified the practices of most states in charging higher fees to non-citizens than to citizens for admission to their schools and higher educational insti- tutions. The state owns these and administers them in a proprietary as well as in a governmental capacity. The citizens of a state, being the common proprietors, may properly claim some advantages therein that are not equally free to non-proprietors. Doubtless foreign citi- zens could not be charged a higher fee than domestic citizens for the use of the courts or for the protection of the police, although the court-houses and the weapons of the officers of the law are owned by the state, but this is perhaps because dispensing justice and protecting from injury are historically essential functions of gov- ernment, while affording an education is not. § 339. Same: Procedural rights as affected by dom- (7) Corfield v. Coryell, 4 Wash. C. C, 371. 340 CONSTITUTIONAL LAW idl. Non-residence in a state, though usually associated with non-citizenship in it, may be a just ground for dis- crimination in a variety of situations besides those in- volving proprietary rights. Resident defendants may obtain the benefit of the statute of limitations, while non- residents may not, because suit could have been begun against residents at any time during the statutory period, while the absence of the non-residents prevents this. An attachment may be allowed against the property of non- resident defendants, when not allowed against resident defendants, for the non-residents are likely to stay out of the state and leave the plaintiff to follow them as best he can after getting judgment. Moreover, if a non- resident remains out of the state altogether, there is no way in which a resident plaintiff may secure a valid judgment against him in the state, except by attaching his property. The United States Supreme Court has said: *'We must not be understood as saying that a citizen o¥ one state is entitled to enjoy in another state every privi- lege that may be given in the latter to its own citizens. There are privileges that may be accorded by a state to its own people in which citizens of other states may not participate except in conformity to such reasonable regu- lations as may be established by the state. For instance, a state cannot forbid citizens of other states from suing in its courts, that right being enjoyed by its own people ; but it may require a non-resident, although a citizen of another state, to give bonds for costs, although such bond be not required of a resident. Such a regulation of the THE FEDERAL GOVERNMENT 341 internal affairs of a state cannot reasonably be character- ized as hostile to the fundamental rights of citizens of other states. So, a state may, by a rule uniform in its operation as to citizens of the several states, require residence within its limits for a given time before a citi- zen of another state, who becomes a resident thereof, shall exercise the right of suffrage or become eligible to office. It has never been supposed that regulations of that character materially interfered with the enjoyment by citizens of each state of the privileges and immunities secured by the Constitution to citizens of the several states. The Constitution forbids only such legislation affecting citizens of the respective states as will sub- stantially or practically put a citizen of one state in a condition of alienage when he is within or when he re- moves to another state, or when asserting in another state the rights that commonly appertain to those who are part of the political community known as the people of the United States, by and for whom the government of the Union was ordained and established" (8). §340. Same: Occupational qualifications as affected by domicil. Wherever citizenship or residence in a state, or such citizenship or residence for a certain period, may be thought better to qualify a person for some occupa- tion or profession to be followed in the state, this may be required. Lawyers are very commonly required to be citizens of the state in which they practice, as they are officers of the courts. The same requirement is some- times made of retail liquor dealers, one court saying: (8) Blake v. McClung, 172 U. S., 239, 256-257. 3/42 CONSTITUTIONAL LAW "It is not an unreasonable requirement that a person who desires to avail himself of a license to retail intoxi- cating liquors shall submit himself to the jurisdiction of the state, by becoming an inhabitant thereof, to the end that he may be readily apprehended and punished for any violation of the law in connection with his busi- ness" (9). In many states a certain number of years' practice in the state is accepted in lieu of an examination for a license to practice medicine. A similar amount of practice outside of a state is not accepted. This dis- crimination has been sustained on the ground that the local practitioner is likely to have a better knowledge of local diseases, and also proof of his character and ex- perience are more easily obtainable (10). A requirement that barbers be citizens of the state where they pursue their occupation is invalid (11). Section 2. Other Interstate Relations. § 341. Interstate recognition of public acts, records, and judicial proceedings. "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, and the Con- gress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof" (12). The effect of this constitutional provision is discussed (9) Welsh V. State, 126 Ind.. p. 78. (10) Ex parte Spinney, 10 Nev., 323. (11) Templar v. Michigan Board of Examiners, 131 Mich., 254. (12) Const., Art. IV, sec. 1. THE FEDERAL GOVERNMENT 343 in the article on Conflict of Laws in Volume IX of this work. § 342. Interstate extradition and rendition. **A per- son charged in any state with treason, felony, or other crime, who shall flee from justice and be found in an- other state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be re- moved to the state having jurisdiction of the crime" (13). This provision is discussed in the article on Criminal Procedure, §§ 35-40, in Volume III of this work. ' ' No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in conse- quence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due" (14). This clause referred especially to fugitive slaves, and is now obsolete, unless perhaps it might apply to some form of service like that of a sailor, which may be spe- cifically enforced without violation of the Thirteenth Amendment against slavery. See § 102, above. § 343. Agreements between states. "No state shall, without the consent of Congress . . , enter into any agree- ment or compact with another state" (15). The required consent of Congress to interstate agree- ments need not be given expressly nor with any par- ticular formalities. It is sufficient if Congress by some (13) Const., Art. IV, sec. 2, §2. (14) Const, Art IV, sec. 2, §3. (15) Art I. sec. 10, § 3. 344 CONSTITUTIONAL LAW positive act signify its approval or assent. For in- stance, the admission by Congress of Kentucky as a state amounted to an assent to an agreement between Ken- tucky and Virginia by which the former was detached from the territory of the latter (16). Recently it has been decided that this prohibition upon state agreements applies only to agreements having a substantial tendency to increase the political power or influence of one or more of the states affected. It applies to an agreement by which the territory of one state is substantially increased, but not to an agreement in good faith to settle a disputed boundary line (17). Uniform legislation by states re- specting railroads or waters connecting them is also valid. Section 3. Relations Between the United States AND THE States. § 344. Nature of the Union. ' ' The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible states.*' This political theory was fi- nally settled by the Civil war. So far as the Supreme Court has discussed the status of the southern states dur- ing that war, it appears that territorially speaking the insurgent states were never out of the Union, nor were their Federal obligations and those of their citizens sus- pended during the struggle. The illegal conduct of the state governments and of their people suspended their rights as members and citizens of the Union, and those rights were later restored by various acts of Congress. (16) Green v. Biddle, 8 Wheaton, pp. 85-87. (17) Virginia v. Tennessee, 148 U. S., 520. THE FEDERAL GOVERNMENT 345 If a state chose to elect no Federal senators and repre- sentatives or temporarily to suspend the operations of its state government it would also meanwhile lose its corresponding Federal rights (18). § 345. Participation of the states in the Federal gov- ernment. Certain state action at regular intervals is by the Constitution necessary to the continued existence of the Federal government. Each state prescribes the qual- ifications for electors of United States senators and of representatives in Congress; and each state chooses, as its legislature directs, its quota of electors to choose the President of the United States (19). §346. State interference with Federal functions: Con- flicting laws. ''This Constitution, and the laws of the United States which shall be made in pursuance thereof ; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land ; and the judges in eveiy state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding" (20). In view of the nature of the Federal government, prob- ably its laws and treaties would have been superior to conflicting state laws, even without this clause of the Constitution. This provision, however, has placed the matter beyond doubt Direct conflicts between state and (18) Texas v. White, 7 WaU., 700. (19) Ck)nst., Art. I, sec. 2, §1; Amend. XVII; Art II, sec. 1, §2. (20) Art. VI, § 2. « 346 CONSTITUTIONAL LAW Federal laws are thus readily disposed of m constitu- tional theory. Indirect interferences by the states with Federal laws or functions offer more difficulty. § 347. Same: State taxation of Federal agencies or property. After the establishment of the second United States bank Maryland imposed a tax upon the issue of bank notes by the institution. This was declared invalid by the Supreme Court upon the ground that it interfered with the operation of an agency created by the Federal government in the exercise of its powers (21). Likewise a state may not tax United States bonds owned and kept within its borders. Such a tax directly increases the rate of interest that the United States must pay to purchasers of these bonds, and so means a tax upon the borrowing power of the government (22), Nor may a state levy an income tax upon the salary of Federal officers. Similarly a state may not tax any franchise granted by the Federal government, such as a railroad charter, or a patent (23). Of course property owned by the Federal government may not be taxed (24). § 348. Same: Taxation of property of Federal agents. Taxation remotely affecting Federal functions. Prop- erty owned by private individuals or corporations may be taxed by the states where it is located, although it is employed in the Federal service, as, for instance, the (21) McCulloch T. Maryland, 4 Wheat, 316. (22) Weston v. Charleston, 2 Pet., 449. (23) California v. Central Pacific R. R. Ck)., 127 U. S., 1; People ▼. AsseaBors, 156 N. Y., 417. (24) Van Brocklln v. Tennessee, 117 U. S., 151. THE FEDERAL GOVERNMENT 347 property of a Federal railroad corporation or that of a Federal contractor (25). If state taxation affects Federal functions remotely in- stead of substantially it is not invalid, at least unless ex- pressly forbidden by Congress. For instance, a state may tax the transfer of private property at the death of the owner, including Federal bonds and legacies left to the United States (26). § 349. State interference with private exercise of Fed- eral rights. A state may not interfere with any private right derived expressly or impliedly from the Federal Constitution, laws or treaties. The principal express pro- hibitions upon such state interferences, such as those against ex post facto laws, impairing the obligation of contracts, taking property or liberty without due process of law, or denying the equal protection of the laws, have been discussed at length in other parts of this article. Private Federal rights under the commerce clause are discussed in Chapter XIV, §§ 279-99. Implied rights are entitled to the same protection. Thus, the right to in- form Federal ofl&cers of the commission of a crime against the United States is an implied Federal right of every citizen, and may not be interfered with either by states or individuals (27). The right of a witness to testify in the Federal courts may not be restrained by n ^''t^te prose- cution for alleged perjury therein (28). (25) Railroad Co. v. Peuiston, IS Wallao? ? (26) Plummer v. Coler, 178 U. S., 115. (27) In re Quarles, 158 U. S., 532. (28) In re Loney, 134 U. S., 372. 348 CONSTITUTIONAL LAW § 350. Federal interference with state functions. The property of the states, and their essential governmental functions are protected from Federal interference to sub- stantially the same extent as Federal functions are pro- tected from state interferences (29). Some illustrations of this as regards Federal taxation are mentioned in § 317, above. (29) United States v. Railroad Co., 17 Wallace 322; Collector v. Day, 11 WaUace, 113. CHAPTER XVni. JURISDICTION OF THE FEDERAL COURTS. Section 1. In General. § 351. Classification of Federal judicial powers. The Constitution, Article III, section 2, § 1, provides: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party ; to controversies between two or more states; between a state and citizens of an- other state ; between citizens of different states ; between citizens of the same state claiming lands under grants of different states; and between a state or the citizens thereof, and foreign states, citizens or subjects." It will be noticed that practically the whole of this grant of judicial power falls into two great classes: (1) cases dependent upon the character of the question litigated; (2) cases dependent upon the character of the parties to the litigation. The Federal courts are given jurisdiction of all cases involving the following questions, no matter who are the 349 VoK Xn— 24 350 CONSTITUTIONAL LAW parties to the suit: (a) oases in law and equity arising under the Federal Constitution, laws, or treaties; (b) cases of admiralty or maritime jurisdiction. Likewise, the Federal courts are given jurisdiction of cases having tlie following parties, no matter what the suit may be about: (a) when ambassadors, public minis- ters, or consuls are parties ; (b) when the United States is a party; (c) when two or more states are antagonistic parties ; (d) when a state and citizens of another state are antagonistic parties; (e) when citizens of different states are antagonistic parties ; (f ) when a state or its citizens on one side and foreign states or aliens on the other are an- tagonistic parties. § 352. Objects of the various judicial powers. The necessity of securing a uniform and authoritative con- struction of the Federal Constitution, laws, and treaties was a suflScient reason for giving the Federal courts juris- diction of questions involving the construction or enforce- ment of these. Such questions are usually called "Fed- eral questions" and will hereafter be referred to shortly by that name. Obviously, too, suits to which the United States is a party should be in its courts. The national government alone has dealings with foreign nations, and so it is appropriate that its courts should deal with cases affecting the representatives of foreign nations; and, as admiralty matters are largely concerned with interna- tional intercourse and with transactions on the high seas, where vessels are under the flag of the nation rather than that of a state, similar considerations made it advisable to give the Federal courts jurisdiction of such matters. THE FEDERAL GOVERNMENT 351 Before the territory west of the Alleghanies was ceded to the United States, there had been conflicting claims to portions of it on behalf of different states, and in some cases bloodshed had occurred between rival groups of settlers claiming the same land under conflicting grants. To secure an impartial tribunal for the settlement of such claims the Federal courts were given jurisdiction of them. As the states may not go to war or make treaties with each other or with foreign nations, it was necessary that the Federal courts should be given jurisdiction of dis- putes that might arise between such parties ; and to pre- vent the possibilities of local prejudice in the state courts, the provisions were added which gave the Federal courts jurisdiction of suits between a state or its citizens on one side, and citizens of different states or aliens on the other. § 353. Power of Congress in organization of Federal courts. The Constitution, Article HI, section 1, provides: ' ' The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.'* The power of Congress over the organization of the Federal courts is very great. While it may not directly abolish the Supreme Court it may increase or diminish the number of its judges at pleasure, subject to the quali- fication that no sitting supreme court judge can be re- 352 CONSTITUTIONAL LAW moved from the court during good behavior. The inferior Federal courts may be established and abrogated at the will of Congress, though it would seem that the judges of such inferior courts would be entitled to their salaries during good behavior, even though their court were abol- ished. The contrary practice was pursued, however, when a number of newly created Federal courts and judgeships were abolished by the Jeffersonian RepubU- cans in 1801. § 354. Present Federal courts. The organization of the Federal courts with jurisdiction in the states under the present acts of Congress is as follows : (a) The United States district courts. Each state is divided into from one to four Federal judicial districts, in each of which there is a district court held by one or more district judges appointed for that district. (b) United States circuit courts of appeals. The ju- dicial districts of the United States are divided by groups of states into nine circuits, each of which has from two to four circuit judges and to each is assigned one supreme court justice. In each of the nine circuits there is a court of appeals, composed of three of these judges, which hears appeals from the decisions of the district courts in its respective circuit. District judges may also be as- signed to this court when necessary. (c) Court of claims, court of customs appeals, and commerce court. These courts, composed of five judges each, have jurisdiction over special classes of Federal cases. (d) United States Supreme Court. This is composed THE FEDERAL GOVERNMENT 353 of nine jndges, almost all of whose work consists in hear- ing appeals from the lower Federal courts and from the highest state courts. § 355. Original and appellate jurisdiction. The Con- stitution, Article III, section 2, § 2, provides ; * ' In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Con- gress shall make." Just as in the organization of the Federal courts. Con- gress has very extensive powers over their jurisdiction. In only two classes of cases is the Supreme Court given original jurisdiction by the Constitution (original juris- diction is the jurisdiction of a suit at its beginning: ap- pellate jurisdiction is jurisdiction over it on an appeal from the decision of some other tribunal). Congress can- not enlarge the original jurisdiction of the Supreme Court, but it can give other courts a jurisdiction con- current with it upon the subjects of its original jurisdiction. The entire appellate jurisdiction of the Supreme Court being placed under the control of Congress, it can take away that court's appellate jurisdiction in any class of cases even after the appeal has been taken and argued in the Supreme Court (1). Congress may of course pro^. (1) Ex parte McCardle, 7 Wall., 506. 354 CONSTITUTIONAL LAW vide that certain classes of cases shall be finally decided by Federal courts inferior to the Supreme Court, and in several important classes of cases it has conferred the power of final decision upon the circuit courts of appeal. § 356. Exclusive and concurrent jurisdiction. The Constitution gives to the Federal courts no exclusive jurisdiction of any matters whatever. For anything that appears in the Constitution the state courts may exercise jurisdiction concurrently over all matters specified in the judiciary article. The regulation of this is entirely in the hands of Congress, which may distribute the subjects of possible Federal jurisdiction as it pleases. Under present statutes Federal courts have exclusive jurisdic- tion of all Federal crimes, penalties and seizures, of all admiralty, patent right, copyright, and bankruptcy eases, of all suits to which the United States is a party, and of all suits between a state on one side and another state or a foreign nation on the other side (2). Most other possi- ble subjects of Federal jurisdiction may be sued upon cither in the state or Federal courts as the parties to the suit may prefer (concurrent jurisdiction) ; but in a few instances Congress has left the jurisdiction wholly with the state courts. For instance, suits between citizens of different states, where no Federal question and less than $3,000 are involved, may not be brought into the Federal courts at all, either originally, or by removal (§ 357), or by writ of error to state courts (§ 358). § 357. Transfer of cases from state to Federal courts: Before trial. If a suit between A and B, citizens of Illi- nois, turned in part upon a Federal question within the (2) U. S. R. S., §711. THE FEDERAL GOVERNMENT 355 concurrent jurisdiction of the state and Federal courts, the plaintiff A might at his option bring suit against B in either the state or Federal courts in Illinois. Like- wise, if A lives in Indiana and B in Illinois A may sue B in a state or Federal court of Illinois upon the ground of diversity of citizenship, no matter what the question at issue ; or, if A can find B in Indiana he may sue him in the Indiana state courts. In the first case above put, if B is sued in the state courts, he may have the case removed, in its entirety, to the Federal courts for trial. The defendant is as much entitled to the bene- fits of the Federal courts upon Federal questions as is the plaintiff. In the second case put above, if A sues B in the Blinois state courts, B cannot have the case removed to a Federal court. B is being sued in the courts of his own state, and if A is willing to take the chances of local prejudice B cannot complain. If, however, A sues B in the state courts of Indiana, B may have the case removed to the Indiana Federal courts, because he, a citizen of Illinois, is entitled to be protected from the possibility of local prejudice in favor of the Indiana plaintiff in the state courts (2a). Often more than one question is involved in a case. Suppose there are a dozen questions in a particular case, only one of which is a Federal question, both parties be- ing citizens of New York. Owing to the difficulty and ex- pense of dividing a case for separate trials in different courts, the entire case with all of its questions, state and Federal, is removed to the Federal courts or may he brou^t there originally, if a single question in it is a (2a) At present (1922) no suits may be removed from state to ^Federal courtB unless orer $S,000 is involved. 866 CONSTITUTIONAL LAW Federal question. The Federal court will decide the other questions in the case according to state law as best it can, but the whole case goes to the Federal courts (3). § 358. Same: After trial. When no Federal question is involved in a case, and both parties permit it to go to trial in a state court, neither can thereafter take the case to a Federal court at any later stage of the proceedings. It being a question of state law only, and neither party having complained of local prejudice, there is no reason for carrying the matter farther. When a case involves ? Federal question, however, even though both parties are satisfied to conduct it in the first instance in a state court, yet it is important for the sake of uniformity and for the security of Federal rights that an ultimate author- itative decision be given by a Federal court. The stat- utes therefore provide that if the highest state court to which the matter can be carried decides against some claim of a Federal right set up in the case, it may be carried to the Stipreme Court for decision. No part of the case is carried there except that involving the Fed- eral question, and, if this has been properly decided by the state court, it makes no difference how poorly the other questions in the case may have been dealt with by the state court. If the decision of the state court is in favor of the Federal right claimed there is no appeal to the Federal courts, even though the decision be erroneous. The Federal government is interested in securing for its laws at least as much effect as they are entitled to ; if a (3) Tennessee v. Davis, 100 U. S., 257. THE FEDERAL GOVERNMENT 357 state court cBooses to give them more than this, that is not a matter for national solicitude. § 359. Federal questions. A case arising under the Constitution, the laws of the United States, and treaties made under their authority exists, not only when the operation or effect of some written clause of the Consti- tution, an act of Congress, or a treaty is in controversy, but also when there is a question concerning the existence or exercise of any power, right, or duty arising under the government of the United States. Thus, the right of a citizen unhindered to inform Federal officers of the vio- lation of Federal revenue laws is a right arising under the Constitution and laws of the United States, although there is nothing in the Constitution or any acts of Con- gress directly bearing upon this (4). On the other hand a case does not involve a Federal question, so as to give the Federal courts jurisdiction, merely because rights claimed in the case are based upon a Federal law, provided there be no controversy as to the operation or effect of this law. For instance, the title to land may be derived from a United States grant. If, in a suit, the validity of some subsequent deed of this land is in issue, there is no Federal question, although the original Federal grant is part of the alleged title of both parties. If the Federal grant itself was at issue there would be a Federal question (5). Corporations created by the United States to aid in its governmental functions, like banks or railways, may sue (4) In re Quarles, 158 U. S., 532. (5) Blackburn v. Portland Mining Co., 175 U. S., 571, 358 CONSTITUTIONAL LAW or be sued in the Federal courts, even though the ques- tion in controversy does not concern the operation or effect of their corporate charters (6). Perhaps the best reason for this is that the exercise of Federal govern mental functions, even by a private corporation, is neces- sarily the exercise of a power under the United States government, whatever the precise question at issue con- cerning it. § 360. Habeas corpus proceedings. The Federal courts are given by statute the right to grant writs of habeas corpus, within their respective jurisdictions, tQ inquire why any person is restrained of his liberty (7). ** Within their jurisdictions" means that the writ can be used by the Federal courts only where the restraint is connected with some subject matter to which" the juris- diction of the Federal courts extends. Thus, a father may not secure from a Federal court a writ of habeas corpus to restore to him his children, detained by citi- zens of his own state. The relation of father and child is governed by state and not by Federal law and so the application must be made to the state courts (8). On the other hand, where a Federal marshal was in the custody of state authorities, charged with homicide while acting in defence of a Federal judge, the Federal courts released the marshal absolutely from state custody on the ground that what the marshal had done was in furtherance of a duty owed to the United States. The (6) Pacific Railroad Removal Cases, 115 U. S., 1. (7) U. S. R. S.. §§751-66. (8) In re Burrus, 136 U. S., 586. THE FEDERAL GOVERNMENT 359 Federal courts, however, are reluctant to interfere thus summarily with the administration of justice in the state courts, and state prisoners will not be released before trial by the Federal courts unless it is perfectly clear that important constitutional rights are being violated or that the prisoner's act was justifiably done on behalf of the United States or some foreign nation (9). § 361. Suits between states. Without its consent, a sovereign state can not be sued, but must be proceeded against by another state, if at all, through diplomatic or military channels. The powers of diplomacy and war being taken from the American states by the Constitu- tion, the settlement of international difficulties between them is consequently relegated to the Federal courts. The jurisdiction has been upheld in a considerable vari- ety of cases, and apparently extends to all matters that would be proper subjects for an international tribunal. Among them may be mentioned boundary disputes (10) ; the controversy over the right of Illinois to empty the Chicago drainage canal into Missouri waters (11) ; the dispute between Kansas and Colorado regarding their respective rights to use the Arkansas river for irriga- tion (12) ; the suit by South Dakota against North Caro- lina upon the latter 's bonds (13) ; and the recent bill brought by Virginia against West Virginia to compel the (9) Rogers v. Peck, 199 U. S., 425; U. S. R. S., § 753. (10) Rhode Island v. Massachusetts, 12 Pet., 657. (11) Missouri v. Illinois, 180 U. S., 208. (12) Kansas v. Colorado, 185 U. S., 125. (13) South Dakota v. North Carolina, 192 U. S., 286. 360 CONSTITUTIONAL LAW assumption of a fair share of Virginia's debt before the state was divided (14). §362. Suits between states and the United States. The judiciary article expressly provides for suits between states, but there is no express provision for suits be- tween states and the United States. General jurisdic- tion is given, however, of the cases to which the United States is a party, and this is held to include cases where the United States is a plaintiff and a state an unwilling defendant (15). The United States, being a paramount sovereignty, is not subject to the general rule of public law forbidding one sovereignty to sue another without the latter 's consent (§ 368, below). A state as a subordi- nate sovereignty may not sue the United States without the latter 's consent (16). § 363. Diverse citizenship. The jurisdiction of the Federal courts extends to suits between citizens of dif- ferent states, and between citizens and aliens. It will be noticed that three considerable classes of persons are wholly omitted from this enumeration: (1) Citizens of the District of Columbia. (2) Citizens of the territories of the United States. (3) All corporations. As regards classes (1) and (2) it was early held that they were out- side of this constitutional provision. A citizen of Kentucky who wishes to sue an Ohio defendant may do so in the Ohio Federal courts in order to escape local prejudice; but a citizen of Washington, D. C, or of Alaska, must (14) Virginia v. West Virginia, 206 U. S., 290. (15) United States v. Texas, 143 U. S., 621. (16) Kansas v. United States, 204 U. S., 331. THE FEDERAL GOVERNMENT 361 take what the local state courts will give him when he sues in Ohio or other states. Class (3) has had a different fate. There were few cor- porations when the Constitution was adopted and prob- ably they were overlooked or regarded as unimportant when the jurisdictional section was drafted. When cases with corporations as plaintiffs or defendants became more frequent, the Supreme Court first held that, if all the stockholders of a corporation were citizens of the state where it was incorporated, the suit could be treated as virtually a suit by the citizens of that state, and if the other party was a citizen of another state, the necessary diverse citizenship existed to give the Federal courts jurisdiction. Later the court decided that all of the stock- holders of a corporation would be conclusively presumed to be citizens of the state in which it was incorporated, for the purposes of Federal jurisdiction (17). This vir- tually makes a corporation a citizen of the state of its creation, though this is so for the purposes of Federal jurisdiction only. § 364. Law applied by Federal courts: No Federal common law. All transactions that occur in the United States, where not governed by some written law (consti- tution, statute, or treaty), are governed by the unwritten common law. This is not precisely alike in any two of the states, and in a few states it is quite divergent from the ordinary type, due to its basis upon a different sys- tem of law (as in Louisiana), or to local peculiarities of climate or custom (as in arid states). When the Con- (17) Ohio & Mississippi Railroad Co. y. Wheeler. 1 Black, 286. 362 CONSTITUTIONAL LAW stitution was adopted, each of the original states had its own body of common law governing its people in all particulars not covered by written law. It might have been held that so much of this common law as concerned subjects delegated to the United States by the Consti- tution became, upon the adoption of the Constitution, Federal common law, and the rest remained state law. It was early said, however, that this was not so ; and the Federal courts have consistently held that the common law of each state, even upon national subjects, is state law until changed by an act of Congress. Thus, although Congress alone can by statute regulate interstate com- merce rates, yet, until Congress acts, the common law of each state respecting interstate rates is enforced, requir- ing, for instance, that they be not unreasonable nor dis- criminatory (18). For similar reasons, there can be no common law crimes against the United States. They exist against state laws only, while Congress must enact statutes to create Federal crimes (19). §365. Same: Questions of local common law. Al- though there is no Federal common law, the Federal courts must frequently interpret and enforce state com- mon law. A suit between citizens of New York and Indi- ana regarding land in New York can be brought in the Federal courts on account of the diverse citizenship of the parties, but the only law involved is the local land law of New York. If similar questions have been previ- ously decided by the New York courts, establishing the (18) Waetern Union Co. v. Call Publishing Co., 181 U. S., 92. (19) United States v. Hudson, 7 Cranch 32. THE FEDERAL GOVERNMENT 36^ New York law upon the point at issue, the Federal courts in New York will follow the decision of the New York courts, whether they think them right or not. It is enough that they appear to establish the law in New York (20). The same will be done with respect to any legal matter that is purely local to New York. § 366. Same: Questions of general or commercial com- mon law. Suppose instead of being a question of land law it is one of commercial paper. The New York courts, for instance, have decided that the purchaser of a prom- issory note under certain circumstances cannot enforce it, although in most places outside of New York it would be enforceable. If an Indiana citizen sues in the Federal courts of New York in such a case, the Federal courts will refuse to follow the decisions of the New York courts if they think the New York view is wrong and opposed to the rules of commercial law generally (21). Assuming that the state and Federal courts in New York will remain unconvinced by each other, it results that there are virtually two different laws in New York upon this point — one law administered between New York citi- zens in the state courts, and the other administered be- tween New York citizens and outsiders in the Federal courts. The situation is unfortunate, and in addition it is difficult to know what questions will be considered those of general law and which of local law. Commercial paper and insurance contracts, contracts exempting car- riers from negligence, and the operation of the fellow* (20) Suydam v. Williamson, 24 How., 427. (21) Swift V. Tyson, 16 Pet, 1. 364 CONSTITUTIONAL LAW servant rule in agency have been held to be matters of general law. Land laws, Sunday laws, and questions of local public policy are held to be matters of local law. § 367. Same: State statutes. Every state statute is treated as a local law, and the Federal courts will follow the decisions of the state courts in construing state statutes, no matter how unusual the construction maybe (22). If conflicting constructions of a statute have been made by a state court the Federal courts will follow the latest decision of the highest state court, subject to the qualifi- cation mentioned below. Suppose a state statute purports to authorize a state to issue bonds. The bonds are issued and in a suit in the state court the statute is held valid and the bonds de- clared good. Other bonds are bought upon the faith of this decision, but later the state court reverses its former decision, holding the statute invalid and the bonds bad. This involves no Federal question, as it depends wholly upon the construction of a state statute, so citizens of the same state as the city issuing the bonds are remediless. Citizens of other states, however, may sue the city in the Federal courts on the ground of diverse citizenship, and, with respect to contract or property rights acquired on the faith of the first state decision, the Federal courts will follow the first decision and hold the statute valid. As to the contracts made after the second state decision, the Federal courts will follow the second decision (23). (22) Leffingwell v. Warren, 2 Black, 599. (23) Douglass v. Pike County. 101 U. S. 677. THE FEDERAL GOVERNltlENT 365 This is the only exception to the rule that the Federal courts will follow the interpretation of state statutes made by state courts. Section 2. Suits Against States, Eleventh Amend- ment. § 368. Political sovereignty not accountable to in- dividuals. According to the rules of public law it is or.^i of the attributes of sovereignty not to be accountable tc individuals against the sovereign's will. The rule has sometimes been expressed in the maxim ""jThe king can do no wrong. ' ' Literally, of course, this is far from true, but, inasmuch as the king cannot be sued in his own courts without his consent, the real truth is that he cannot be made responsible for his wrong-doing. Whether the sovereign is an individual ruler, or democracy itself, the rule is the same. Also, by rules of public international law a sovereign may not be sued against his consent in the courts of any other country than his own, unless some statute there in force applicable to the case permits it. A somewhat amusing illustration of this occurred a few years ago in England. The Sultan of Johore, a small independent state in the Malay Peninsula, with which Great Britain was in alliance, came to England and took up a residence there, under the assumed name of Baker. He promised to marry a woman living in England, and later was sued by her in the English courts for breach of promise of marriage. He denied the jurisdiction of the English courts, and it was held that as lawful sover- eign of the State of Johore he was entitled to immunity from suit in the courts of other countries, unless he Vol. Xn— 2 5 366 CONSTITUTIONAL LAW chose to waive this immunity, or it was taken away from him by express statute where he was sued (24). §369. Chisholm v. Georgia. Eleventh Amendment. One of the clauses of the judiciary article provides that the judicial power of the United States shall extend **to controversies between a state and citizens of another state. '^ In 1792 a creditor of Georgia living in another state brought suit in the Supreme Court against Georgia for non-payment of the debt. The state argued that the Constitution was to be interpreted in the light of well- known rules of public law, and that therefore this clause applied only to cases where a state should sue a citizen of another state, and not to cases where a state itself was defendant. The court decided by a vote of four to one that the Constitution covered the case of a suit against a state by a citizen of another state (25). At the first meeting of Congress, thereafter, the Elev- enth Amendment to the Constitution was proposed and a few years later became a part of the Constitution in the following language: *'The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." § 370. Repudiatian of state debts. The Eleventh Amendment has enabled a number of American states to repudiate their debts, in whole or in part, at various periods in our history. During the hard times after the (24) Mighell v. Sultan of Johore, (1894) 1 Q. B. 149. (25) Chisholm v. Georgia, 2 Dall., 419. THE FEDERAL GOVERNMENT 367 panic of 1837 nine or ten middle, western, and southern states defaulted in state debts incurred largely for in- ternal improvements. After the Civil war there was an- other period of repudiation. Most of the southern states, with much justification, refused to pay debts corruptly or extravagantly incurred by their reconstruction gov- ernments, and one or two western states repudiated debts during the '' Granger" excitement of the 1870 's. Louisi- ana has repudiated some part of its state debt at four different periods. Even when a state has expressly consented to be sued and suit has been begun against it and is in process of decision, the state may at any time withdraw its consent to further proceedings, and the Eleventh Ajnendment at once applies to shield the state (26). § 371. Suits between states upon bond debts. Deci- sions interpreting the Eleventh Amendment have been numerous. It was early held that this amendment did not affect suits between states themselves, which the Federal courts are authorized to entertain by another clause of the judiciary article. When Louisiana repudi- ated her state debt for the last time, the legislature of New Hampshire passed an act permitting its citizens to assign their claims against Louisiana to the state, and directed the attorney-general to sue Louisiana in the name of New Hampshire upon such claims. The assign- ing creditors were to pay the costs of the suit, and to have the net proceeds of any recovery. Suit was begun against Louisiana under this act by New Hampshire, but (26) Beers v. Arkansas, 20 How., 527. 368 CONSTITUTIONAL LAW was dismissed by the Supreme Com't on the gromid that the real parties in interest were citizens of the state, not the state itself, and therefore such suits fell within the substance of the Eleventh Amendment (27). Recently the owners of some repudiated North Carolina bonds donated them outright to the state of South Da- kota. South Dakota accepted the bonds and at once be- gnn suit against North Carolina upon them in the Supreme Court. Its action was upheld as not within the prohibition of the Eleventh Amendment, inasmuch as South Dakota was the only party having an interest in the subject matter of the suit, so that this action was not a mere cover for other interested individuals, as was true in the New Hampshire case (28). These particular bonds were secured by mortgage on some railroad stock, so that the judgment could be collected merely by selling the stock, without the necessity of a personal judgment as^ainst the state. The court admitted that property held by a state for public governmeutal purposes could not be seized to pay a judgment, and that a court could not compel a state to levy taxes to pay a judgment. This procedure, therefore, is not likely to be effectively used against a defaulting state, save in the exceptional case where some security has been given that may be sold to satisfy a judgment. See further, respecting suits brought against a state by another state or the United States, §§ 361, 362, above. § 372. Suits against municipal corporations. Set-off against state. The Eleventh Amendment applies only to suits brought against the state itself, or where the relief (27) New Hampshire v. Louisiana, 108 U. S., 76, (28) South Dakota v. North Carolina, 192 U. S.^ 286. THE FEDERAL GOVERNMENT 369 really eought is against the state sovereignty. It does not apply to suits brought against corporations, public or private, created by the state, nor to municipal subdi- visions of the state, although created by the latter for governmental purposes (29). It is the state sovereignty itself that is protected, not any lesser creations of the state. Nor does the prohibition cover the case of a set-off which the state has previously created when used as a defense in a suit brought by the state itself. Virginia issued certain bonds, the interest coupons of which it agreed should be receivable for all taxes and other debts due the state. Virginia repudiated the bonds and re- fused to receive the interest coupons for taxes. Persons who tendered the coupons for taxes were sued by the state for the amount of their taxes, and their property was seized in satisfaction thereof. It was held that Vir- ginia had contracted to permit these interest coupons to be used as a set-off against taxes due the state, and that making this defense against the state 's attempt to collect taxes was not a suit against the state, but merely an gnswer to the state's suit against individuals (30). § 373. Suits against state by its own citizens. The Eleventh Amendment in terms forbids only suits brought against a state by citizens of another state, or by aliens. It does not include suits brought against a state by its own citizens. The latter suits have, however, been held (29) Lincoln Co. v. Luning, 133 U. S., 52». (30) Virginia Coupon Cases, 114 U. S., 269. 370 CONSTITUTIONAL LAW to be forbidden by the rule of public law referred to in § 368, above (31). § 374. Suits against state officers: (a) For illegal offi- cial act. When the state is named as a defendant in an action brought by an individual to obtain some relief there is of course no doubt that it is a suit against a state. Suppose, however, that the suit is brought against some state officer, either (a), to obtain redress for some act done for the state in his official capacity; or (b), to pre- vent his doing some official act for the state; or (c), to compel the doing of some official act for the state. Are any of these suits against a state within the meaning of the Eleventh Amendment? As regards the first of these classes the matter is clear. For instance, a state, by a law invalid under the United States Constitution, purports to authorize its officers on its behalf, to seize certain property owned by a United States national bank. Acting under this authority, the officers seize the property, and are sued as individual trespassers by the bank. On the one side it is argued that they have acted only for the state, which can act only by human agents, and that therefore the suit is really against the state. On the other side, it is urged that under our law not only the person who authorizes a wrong is liable, but also the agent who carries out the authority and actu- ally commits the wrong; and that in this case the suit against the officers is for the wrong committed by them personally in executing an invalid authority. The officer, (31) HauB ▼. Louisiana, 134 U. S., 1 THE FEDERAL GOVERNMENT 371 being sued, is liable as an individual unless he can show that his act is protected by a valid governmental author- ity. Being able to show only an invalid (unconstitu- tional) authority, he cannot justify his act and hence is personally liable. This reasoning prevailed in an early case upon the facts stated, and it has been universally followed since (32). § 375. Same: (b) To prevent illegal official act. Of course if a state officer can be personally sued for wrong- fully taking private property, even though he purports to act for the state, he can clearly be prevented in ad- vance from doing the illegal act, if it is the kind of an act that courts would prevent if it were threatened by a pri- vate individual. This is true even where the unlawful act threatened by state officers is not a physical interference with the person or property of an individual. The plaintiff had acquired the title to certain land formerly belonging to the state of Oregon. A dispute arose between the plaintiff and the state regarding the land, and a statute was passed requiring the state land commission to cancel plaintiff's title and resell the land. The plaintiff obtained an injunction against the doing of this by the land commissioners, the Supreme Court holding that his suit was against them as individuals to prevent the perpetration of a wrong that would cloud the plaintiff's title to his land. If the state did not really own the land it could not lawfully authorize its officers to sell it, and without lawful authority their acts could (32) Osborne v. United States Bank, 9 Wheaton, 738, 842-4. 372 CONSTITUTIONAL LAW be prevented just like the wrongful acts of any individuals (33). § 376. Same: (c) To compel official act. Where the obligation of the state, however, requires affirmative ac- tion on the part of an official acting in its behalf, a suit to compel such action cannot be maintained under the Eleventh Amendment. For instance, Louisiana contracted with its creditors to apply the revenue derived from a certain tax to dis- charge their claims. Later the state repudiated this and its creditors sued to compel the state officers to apply the funds already collected to the payment of the agreed debts. It was argued for the creditors that this was really a suit against the officers individually to prevent a wrongful omission of their duties, for the second state law, being an impairment of the state's contract with its creditors, was invalid and ought to be disregarded by the state officers. The Supreme Court denied this, pointing out that the relief was really against the state itself, which owed the money, and that the state officers as indi- viduals, apart from their official character, owed no duties to the creditors and hence could not be sued as individ- uals. *'The officers owe duty to the state alone, and have no contract relations with the bondholders. They can only act as the state directs them to act, and hold as the state allows them to hold. . . . They can be moved through the state, but not the state through them" (34). § 377. General principle involved. Generally speak- (33) Pennoyer v. McConnaughy, 140 U. S., 1. (34) Louisiana v. Jumel, 101 U. S., 711. THE FEDERAL GOVERNMENT 373 ing, the principle to be gathered from the foregoing de- cisions and others of like tenor appears to be this: If state ofificers, claiming to act under the authority of the state are doing or threatening acts which if done by pri- vate persons would be actionable wrongs, the officers may be made individually liable if the state authority under which they act is really invalid. On the other hand, if state officers owe no duties as individuals which they are violating by action or inaction, a suit to compel the dis- charge of purely official duties owed on behalf of the state, is a suit against the state. § 378. Enjoining suit on behalf of state. One class of cases is not readily explained by the application of the above rule, and has occasioned doubt and uncertainty not yet dispelled. These are cases where a state has passed a law alleged to be invalid, and has by statute authorized certain state officials to enforce the law in the courts or tribunals of the state. The state of Minnesota, through orders of its railway commission and by statutes, required the railway com- panies in the state to establish certain schedules of rates. The Northern Pacific Kailway asked the Federal circuit court to enjoin the railway commission from enforcing these rates as too low to permit a fair profit, and also asked that Young, the state attorney-general, be re- strained from proceeding against the company by man- damus, or by criminal proceedings to enforce the penal- ties of the statute. A temporary injunction was issued against the new rates until a judicial investigation had been made, and Young was also enjoined from taking any 374 CONSTITUTIONAL LAW action in the matter meanwliile. He disobeyed the injunc- tion and asked for a mandamus in the state courts to put into effect the controverted rates. The Federal circuit court then imprisoned Young for contempt in disobeying its orders, and the Supreme Court adjudged the imprison- ment legal. It was urged that it was a suit against the state because what the Federal court had enjoined was not such an action as Young might take as an individual, but only such action as he might take in behalf of the state of Minnesota. The court said: **The act to be enforced is alleged to be unconstitu- tional, and if it be so, the use of the name of the state to enforce an unconstitutional act to the injury of com- plainants is a proceeding without the authority of and one which does not affect the state in its sovereign or gov- ernmental capacity. It is simply an illegal act upon the part of the state to enforce a legislative enactment which is void because unconstitutional. If the act which the state attorney-general seeks to enforce be a violation of the Federal Constitution, the ofl&cer in proceeding under such enactment comes into conflict with the superior au- thority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequence of his indi- vidual conduct" (35). Mr. Justice Harlan dissented on the ground that where the very question at issue was the constitutionality of a statute the attorney-general of a state could not be an individual wrongdoer in bringing suit on behalf of the (35) Ex parte Young, 209 U. S., 123, 159-60. THE FEDERAL GOVERNMENT 375 state in its own courts to test the statute. If the decision of the state court should be wrong in the matter it could be finally corrected by carrying the case to the United States Supreme Court. If the attorney-general was do- ing no individual wrong in bringing suit on behalf of his state, then an attempt to control his purely official acts on behalf of the state was really an effort to prevent the state from acting, that is, to prevent the state from secur- ing a determination of the validity of its own statutes in its own courts in the first instance. APPENDIX A CONSTITUTION OF THE UNITED STATES. We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, pro- vide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do or- dain and establish this Constitution for the United States of America. ARTICLE L Section 1. All legislative powers herein gi-anted shall be vested in a Con- gress of the United States, which shall consist of a Senate and House of Representatives. Section 2. § 1. The House of Representatives shall be composed of mem- bers chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature. § 2. No person shall be a representative who shall not have at- tained the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an in- habitant of that state in which he shall be chosen. § 3. Representatives and direct taxes shall be apportioned among the several states which may be included within this Union, ac- cording to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and' within evei'y subsequent term of ten years, in such manner as they shall by law direct. The number of repre- sentatives shall not exceed one for every thirty thousand, but each state shall have at least one representative; and until such enumera- 376 CONSTITUTIONAL LAW 377 tion shall be made, the state of New Hampshire shall be entitled to choose thi-ee, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three. § 4. When vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies. § 5. The House of Representatives shall choose their speaker and other officers, and shall have the sole power of impeachment. Section 3. § 1. The Senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof, for six years, and each senator shall have one vote. § 2. Immediately after they shall be assembled in consequence of the first election they shall be divided as equally as may be into three classes. The seats of the senators of the first class shall be vacated at the expiration of the second year; of the second class, at the expiration of the fourth year, and of the third class, at the expiration of the sixth year, so that one-third may be chosen every second year, and if vacancies happen by resignation or otherwise during the recess of the legislature of any state, the executive there- of may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies. § 3. No person shall be a senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state for which he shall be chosen. § 4. The Vice-President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided. § 5. The Senate shall choose their other officers, and also a President pro tempore in the absence of the Vice-President, or when he shall exercise the office of President of the United States. § 6. The Senate shall have the sole power to try all impeach- ments. When sitting for that purpose they shall be on oath or af- firmation. When the President of the United States is tried the Chief Justice shall preside; and no person shall be convicted with- out the concurrence of two-thirds of the membei's present. § 7. Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office ^£, hcz^gL, trust or profit under the United States; but 378 APPENDIX r6seutatlon of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies, provided that the legislature of any state may empower the executive thereof to make temporary appoint- ments until the people fill the vacancies by election as the legislature may direct (9). ARTICLE XVIII. § 1. After one year from the ratification of this article, the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from, the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. § 2. The Congress and the several states shall have concur- rent power to enforce this article by appropriate legislation. § 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution, by the legislatures of the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress. (10) APPENDIX 392a ARTICLE XIX. § 1. The right of the citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. § 2. Congress shall have power by appropriate legislation to enforce the provisions of this article. (11) (G) In force July 28, 1868. (7) In force Mar. 30, 1870. (8) In force Feb. 25. 1913. (9) In force. May 31, 1913. (10) Ratified Jan. 16, 1919, effective Jan. 16, 1920, (11) lu force Aug. 26, 1920. APPENDIX B QUESTIONS — CONSTITUTIONAL LAW. § 2. Is it legally possible to have a constitution unless it ia in writing? § 5. What are the various functions of the constitution of the American States? § 8. What state has the oldest constitution ? § 10. Did the Constitution of the United States become effective as soon as passed by the constitutional convention? § 12. If a constitution contains no provision providing for its amendment how may it be amended? may it be amended in other ways not specified? § 13. If a constitution provides one specific way of amendment, § 18. If a court should decide in favor of a corporation could the legislature or Congress by unanimous vote constitutionally set aside the judgment? Could it constitutionally do so if the act was affirmed by the gov- ernor or President? § 20. Would a statute providing that where an act of the legis- lature had been vetoed by the governor it might nevertheless become a law if assented to by a majority of the Supreme Court judges be constitutional ? § 21. Could a statute constitutionally deprive a court of its power to punish summarily a person who was guilty of contempt in the presence of the court ? § 23. Would a statute giving the county court power to assess and collect the county taxes be constitutional? §27. If the Constitution of the United States neither expressly nor by implication confers power upon Congress to pass certain kinds of statutes, but on the other hand neither expressly nor by implication denies it that power, may Congress pass such statutes? § 28. The constitution of the United States gives Congress the power to regmlate commerce with foreign nations; there is nothing 393 994 CONSTITITTIONAL LAW in the constitution saying that states may not also do so. May a stale pass a statute regulating conunerce with a foreign nation? § 32. Have the English court* power to declare an act of Parlia- ment unconstitutional? § 33. Wliat are the historical reasons for the American doctrine of Constitutional Law that the courts may declare acts of the legis- lative branch unconstitutional? § 36. TVhat are the objections to the arguments for the doctrine that the courts may declare an act of Congress unconstitutional? § 37. Has the court constitutional power to notify Congress that an act which is about to pass or has passed is unconstitutional? § 38. A legislature passed an act providing that women should not work over 9 houi-s a day. The members of the Supreme Court are of the opinion that such legislation is ill-advised, and that a woman may, without injui-y to herself, work more than 9 hours a day. Should the court therefore declare the act unconstitutional? § 41. A statute of the United States declared all the waters with- in 1,000 miles of the coast of Alaska to be American waters and forbade any foreigner to fish or seal there. May the court declare such an act unconstitutional for the reason that such waters clearly do not politically belong to the United States? § 42. Suppose the constitution of a state requires the governor to either approve or veto every act of the legislature submitted to him and the governor refuses to do either. May he be compelled by the court to do one or the other? § 43. Suppose a statute created an unnecessarily large number of officers and gave them unreasonably large salaries so that the whole scheme was obviously one to plunder the state. Could the act be declared unconstitutional for this reason? § 44. A statute foi-bade naturally competing railroads to agree as to rates. A suit was brought by a stockholder against his rail- road to enjoin it from making an agreement as to rates with a com- peting road. The suit was brought to test the act and both the stock- holder and the railroad wanted it declared unconstitutional. If this fact was brought to the attention of the court could it decline to hear the ease? What condition might it require before it would hear it? § 45. A statute was passed authorizing constables to attach prop- erty without waiTants. A constable attached the property of Jones under this statute. It was later declared unconstitutional. Has Jones a right of action against the constable? APPENDIX 395 § 46. Suppose the statute in the above case had also provided in another part for the arrest of persons upon warrants duly sworn out. Would the fact that the first part was declared unconstitu- tional necessarily render this latter part also bad? § 47. Are there any states in which the court may legally give its opinion on the constitutionality of statutes not in litigation"? § § 62, 65. What is the difference in the nature of the legal rights created and the scope and purpose of the following constitu- tional provisions: — that regulating the qualifications of members of Congress; that providing that no state may coin money; that pro- viding that no person shall be deprived of life, liberty, or property without due process of law; that providing that if the governor vetoes an act of the legislature he must give his reason for so doing? § 67. A state passes a statute doing away with jury trials where the amount involved is less than $30. Is such a statute in conflict with the seventh amendment to the Constitution of the United States? § 68. What are the more important provisions of the original Constitution of the United States that limit the powers of the state governments? § 72. A hotel keeper refused admission to a negro citizen of the United States solely for the reason that he was a negro. Was his action in violation of the fourteenth amendment? Would it have made any difference if there had been an act of Congress forbidding keepers of hotels to exclude citizens of the United States solely on account of their color? § 73. Would it have made any difference in the above case if the statute had included the registrar of deeds and a negro citizen had been excluded from the offices of a registrar of deeds solely be- cause he was a negro? § 74. Would a state statute requiring all barbers to be licensed be in violation of that part of the fourteenth amendment to the Con- stitution of the United States which forbids a state to abridge the privileges and immunities of the citizens of the United States? Would a state statute that forbade a person to send out of the state any manufactured product not made wholly in the state be in violation of the above mentioned amendment? § 77. Is a Chinese child born in this country a citizen of the United States? § 79. Might it make any difference in the above case according as the child was born in New Mexico or the Philippines? Vol. ia-27. 39(5 CONSTITUTIONAL LAW §81. "WonUl the child of the British Ambassador, if born u. Washington, be a citizen of the United States'? § 82. Would a child born of French parents on a French war- ship while lying in New York harbor be a citizen of the United States'? § 86. Is it possible for a person born of Indian parents to be a citizen of the United States? § 87. Is a corporation chartered in any of the states a citizen of the United States? § 88. Which of the following persons could be naturalized, as- suming in each case that he could show the necessary length of res- idence in one of the United States: a Japanese, a Mexican, a Sam- can, a Filipino? § 90. Would a child of American parents born in France be a citizen of the United States? § 92. Could Congress constitutionally provide when and how the members of the House of Representatives should be chosen in the different states? Could a state constitutionally provide that its presidential electors should be appointed by the governor of the state ? § § 93, 94. Could a state constitutionally limit the suffrage to per- sons having an income of $10,000 a year or more? § 95. Does a citizen of the United States have as such a right to vote? § 98. Would an act of Congress forbidding the sending of in- decent matter through the mails be in violation of the provision that "Congress shall make no law abridging the freedom of speech or of the press?" § 100. Would a statute that forbade a person to own or carry firearms unless he had a license, be a violation of the constitutional provision that "the right of the people to bear arms shall not be infringed ? ' ' § 102. A sailor who deserted his vessel was arrested and brought back under a statute covering the case. Was this a violation of the thirteenth amendment against involuntary servitude except as a pun- ishment for crime? § 103. Would the same principle apply to the case of a person who agreed to work on a farm for six months and left before that, time and was forcibly brought back under a statute and compelledj to work ? § 104. Would a statute forbidding religious meetings in the] crowded streets of a city be in violation of the clause that "Con- APPENDIX 397 gress shall make no laws respecting an establishment of religion or prohibit the free exercise thereof?" § 106. "What are the historical origins of the provisions of the Constitution protecting the rights of a person accused of crime'? § 107. What is a bill of attainder? § 108. Is a statute that gives a right of appeal in cases where it did not formerly exist ex post facto as to cases already tried? § 109. Would a statute that allowed a three-fourths verdict in criminal cases be ex post facto as to crimes already committed? § 110. Would a statute that changed the punishment of a wife- beater from imprisonment to whipping be ex post facto as to offenses committed before it was passed? § 111. Would a statute that increased the number of challenges on the part of both the accused and the state be ex post facto as to previous offenses? § 113. A state passed a statute requiring all chauffeurs to be licensed and provided that no person who had ever been convicted of a criminal offense could obtain a license. Is such a statute un- constitutional ? § 114. Alexander Jones was accused of murder and denied that he was the man wanted. On his trial he was compelled to turn up his shirt sleeve and show the name ''Alexander Jones" tattooed on his arm. Was this a violation of any constitutional right? § 115. A coiporation known as the United Flour Company was indicted for criminally receiving rebates in violation of a United States statute. The president was called as a witness and com- pelled to admit that the company had received such rebates. Was this a violation of the constitutional privilege against self-incrimi- nation and if so whose right had been violated? § 117. Suppose the testimony given in the last case had been of a kind that rendered the president of the company personally liable to criminal indictment, would the protection of the constitu- tion of the United States forbid an indictment against him in a state court based upon the evidence given in the first case? § 118. Suppose that a United States statute provided that where any person brought an action to recover goods alleged to be in the possession of another person, the house of the latter might at any time be searched by an officer without a warrant and the property so claimed recovered. Would such a statute be a violation of the constitutional provision that "the right of the people to be secure in their houses shall not be violated"? 398 CONSTITUTIONAL LAW § 119. If the language of the statute authorizing the action is clear, may a letter in the mails be opened upon order of the Post- master General for the purpose of obtaining evidence against persons suspected of crimes? § 121. May Congress by appropriate legislation provide that a verdict of three-fourths of a jury shall be sufficient? § 123. A defendant was indicted in a federal court for a mis- demeanor. He asked for and was refused a trial by jury. Is this a violation of the constitutional provision that "in all criminal prose- cutions the accused shall enjoy the right to a trial by a jury?" § 125. Suppose in the above case that the punishment for the misdemeanor was a fine of not more than $10, would the fact that the defendant was tried without having been indicted by a grand jury be a violation of his constitutional rights? § 128. A statute pro\nded that any saloonkeeper who should keep his saloon open beyond the legal closing hour should be punished by a fine of not less than $5.00 nor more than $10.00 for each hour the saloon was so kept open. Smith, a saloonkeeper, for two months kept his saloon open five hours a night later than the regular closing time. He was indicted under the above statute and it being proved that he had illegally kept open a total of 300 hours, the court fined him $3,000. He appealed on the ground that this was a vio- lation of the constitutional provision against cruel and unusual pun- ishments. Is his contention sound? § 132. A state statute provided that if courts were so busy that they were behind in their work they might refer cases where the amount in dispute was less than $100 to any disinterested lawyer, who should give proper notice to the parties and then proceed to try the case without a jury. Is such a statute in violation of the fourteenth amendment providing for ' * due process of law ? ' ' § 134. A statute authorized the boards of health of cities and towns to summarily seize and destroy any decayed vegetables or meat that should be offered for sale. Was this statute unconsti- tutional ? § 137. A United States statute provided that if any Mongolian laborer without a passport should be found in the United States he should be ordered deported by the Commissioner of Immigration. A Chinese laborer found in the United States without a passport, on being ordered by the Commissioner of Immigration to be deported, swore out a writ of habeas corpus on the ground that the statute APPENDIX 399 violated that part of the Constitution which provides that "no per- son should be deprived of liberty without due process of law." Is his contention sound? § 138. Would it make any difference if t^ Chinaman had been born in the United States and was therefore a citizen thereof? § 143. The law of a state provided that no woman should be eligible to sit on a jury. A woman was being tried for some crime and claimed that the statute in effect was in violation of that part of the fourteenth amendment that forbids states to deny to per- sons the equal protection of the laws. Is the claim sound? § 146. Would a state statute be constitutional that provided that no resident of the state should make any contract or engage in bus- iness with a person not a resident of the state? § 148. A state statute provided that all motormen must undergo a state examination and receive a state license before they could act as motormen in cities of more than 25,000 inhabitants. Is this law open to the objection of class legislation because it does not apply to chauffeurs and locomotive engineers; or because it does not apply to cities of less than 25,000? § 149. A state increased the requirements as to amount of re- serve, protection of policy holders, etc., in the insurance business and provided that all insurance companies not conforming thereto should not do business in the state. Is this statute luieonstitutional as to insurance companies already doing business in the state? § 153. John Doe owned a house in a respectable though not wealthy part of Chicago. The legislature passed an act authorizing city councils to set off parts of their respective cities as quarters in which prostitutes should be confined. The council of Chicago set of^ that part of the city in which Doe lived as a section for prosti- tutes. As a result his property was greatly depreciated in value. He claims that the statute is unconstitutional as being a depriva- tion of property without due process of law. Is his contention sound ? § 156. Would a statute be constitutional that required all boot blacks to go before an examining board to take out a license? § § 159, 160. Which of the following statutes would be held un- constitutional today: a statute forbidding the giving of trading stamps: one forbidding the discharge of an employee because he belonged to a labor union; one forbidding the collection of debts by threatening to get the debtor's employer to discharge him if he did not pay? 400 CONSTITUTIONAL LAW § 161. Why would a statute fixine: the rates at which sellers of automobiles should sell their machines be held unconstitutional while a statute fixing the rates at which railroad companies should cany passengers and freight might be held constitutional? § 163. Would a statute forbidding the growers of private forests to cut them in such a way as to waste the lumber be constitutional? § 165. Could a state constitutionally require street railway companies to equip their cars with fenders at their own expense? § 167. In 1002 John Brown took up a homestead on state lands. In 1905 he received his deed from the state; and six months later conveyed the land to James White. At that time a state law re- quired that all persons selling homesteaded lands within one year after they got the title thereto should acknowledge the deed before the judge of the county court. Brown did not so acknowledge so that the title to the property still remained in him. In 1907 the state passed a statute validating all conveyances of homesteaded land made since 1900. Under this statute White laid claim to the land. Brown claimed that the statute was unconstitutional (1) because it was ex post facto; (2) because it deprived him of his property with- out due process of law. Is either contention sound? § 175. The T. H. & U. R. R., an Illinois corporation, running from Chicago, 111., through Iowa, and Nebraska to Denver, Colo., had rolling stock, rails, etc., worth $3,000,000. Its terminal in Chicago was worth $3,000,000, and in Denver $100,000. Its other stations, etc., were worth $400,000 divided equally between the four states. Its total coi'porate assets, tangible and intangible, were $56,500,000. The amount of business done in the four states was Illinois, 4-12; Iowa, 3-12; Nebraska, 3-12; Colorado, 2-12. Upon what amount may the railroad be taxed in Iowa? § 179. Suppose that 100 shares of the above raih-oad are owned by Peter Abbott, a resident of New York. May he be taxed on those shares in New York? Suppose the shares are kept in a safety deposit vault in Phila- delpi^-a, may he be taxed on them by the state of Pennsylvania? May he be taxed on them by the state of Illinois? § § 181-85. John Smith was a citizen and resident of New York. He died leaving the following property: 1. 500 acres of land in New York. 2. 1000 acres of land in Montana. 3. A claim for $10,000 against William Conway, a citizen of Illinois. APPENDIX 4, 100 shares of stock in a Maine corporation, the stock certi- ficate being kept in Boston, Mass. 5. 10 bonds of a New Jei'sey corporation payable to bearer and kept in New York. Assuming that each state wishes to collect all possible inheri- tance taxes, what states can tax with respect to the above proper- ties ? § 186. Could Congress constitutionally impose a tax to raise money to establish a central bank under government supervision? § 192. During a fire which burnt most of a city, five citizens voluntarily advanced a large amount of money to the authorities to buy food, clothing, etc., for the fire sufferers. May the state properly appropriate money to recompense the citizens making this contribu- tion? § 196. May a city raise money by a tax levied on all real property in the city and then use the money to build public golf links in one extreme corner of the municipality where it was prac- tically inaccessible to most of the inhabitants? §§ 199, 200. A city ordered a certain street to be asphalted and provided that the cost of asphalting should be borne by the abutters in proportion to their f rentage on the street. One of the abutters objected to the assessment on the ground that his lot was not used by him; a second objected on the gi-ound that his house faced on another street and his sole driveway was from that other side; a third objected on the ground that his laud was a high knoll, rocky, and impossible of access from the street asphalted; a fourth objected on the ground that no provision was made for a proportionate assess- ment upon neighboring abutters on intersecting streets who were also benefitted. Which if any of the above objections are sound? § 205. Would a graduated tax of 1% on real estate worth less than $75 an acre to 20% on real estate worth more than $100,000 an acre be constitutional? § 209. May the state take by eminent domain the house and land of a private citizen for the purpose of converting it into a home for disabled firemen? § 211. May the state of New York condemn the power plants and other factories using Niagara Falls in order to preserve the natural beauty of the falls? § 213. A state made a contract with John Dale giving him the exclusive right for 5 years to supply coal to the state institutions at $3.00 a ton. The constitution of the state forbade the state to pass 402 CONSTITUTIONAL LAW nny l;nv impairing; the obligation of a contract. Is there any way in which the state maj' terminate the contract with Dale? § 215. Abbott owned a piece of waste land; he conveyed to Smith the right to dump ashes on the land for ten years. Three years later the H. & N. R. R. Co. condemned the land for a station site. The company paid Abbott for his interest in the property. Smith claimed that he was also entitled to be recompensed for his right. Is his claim sound? §216. Immediately below Abbott's lot in the above mentioned case was a lot belonging to Brown. The railroad company began to fill in the Abbott lot. Brown's lot was so much lower that the filling material kept working down onto his lot and finally encroached on it for a width of about twenty feet. Brown claimed that this amounted to a taking of his property. The railroad claimed it did not because Brown could have kept off the gravel by a wall. Which is right ? § 217. Suppose Brown had a house on this lot and the clanging of the engine bells, and the whistle and the noise of the trains so seriously disturbed the quiet of the neighborhood that his tenants left and he could not rent his house. Would this amount to a taking of property by the railroad? § 219. Jones lived on First street and Smith on Maple avenue which crossed First street at right angles. A street railway com- pany obtained a franchise to raise the grade of First street and did so. Opposite Jones' house the grade was raised about 15 feet, thus putting Jones' lot in a much poorer position. To keep Maple avenue on the same grade, the city raised it; and at a point opposite Smith's house it was 15 feet above the old level. Has either Jones or Smith a right of action for deprivation of property rights and if so, what are the rights of which they are deprived? § 220. Suppose the grades of First street and Maple avenue in the last case had not been touched but street car lines had been put on each. Would Jones or Smith have had a cause of action? § 222. A farmer had two tracts of land, one on either side of the highway. The tract to the west of the road was farm land and his house and bam were there. Tlie tract to the east was 50 acres of woodland. A railroad condemned a strip one hundred feet wide through the woodland near the highway. The value of the land actually taken was $100; the railroad put in a road to the rest of the woodland that bettered it to the extent of $25. The noise and APPENDIX 403 nuisance of the passage of the trains near the lot on the west side damaged it $200. How much may be recovered from the railroad? § 225. Suppose the railroad in the last case had begun to grade their right of way through the woodland before they had secured the title thereto. What remedy would the owner have had? Would he be entitled under the Constitution, in the event of condemnation proceedings, to have the value of the land determined by the verdict of a jury? § 227. A state supreme court decided that by the law of the state, interest up to 10% was not illegal under the usury statute. On the strength of that decision, Smith loaned Jones money at 10% interest. Later Smith sued Jones on the contract. The supreme court said that the old decision was wrong and that the state law properly interpreted forbade over 7% interest. Smith claimed that the decision was unconstitutional because it violated the obligation of his contract made on the strength of the old decision. Is his contention right? § 228. Herbert Smith and Alice Hall were mamed in 1880. At that time the law of the state allowed divorce only for adialtery and desertion. In 1890 the law was changed by allowing divorce for in- compatibility of temperament and Herbert attempted to get a di- vorce from Alice on that ground. She contended that so far as the statute related to marriage contracts made before 1890 it was uncon- stutional as impairing the obligation of a contract. Is she right? § 230. Could the state constitutionally revoke the charter of a street railway company Avhich contained no clause authorizing the state so to revoke? § 231. Could a state constitutionally pass a bankruptcy act in 1890 providing that an insolvent debtor could surrender all his property to a trustee for his creditors and thereby discharge the debts and make the statute cover a debt contracted in 1887? §233. The city of Salt Springs issued $1,000,000 of bonds to build a sewer system. At that time the law of the state provided that all real and personal property in the city could be taxed and that the tax rate might be as high as 5% of the assessed valuation. Just before the bonds matured, the law was changed allowing tax- ation only on personal property and limiting it to 1-2% of the assessed valuation. Is this law constitutional as to the bondholders? §234. Suppose in an attempt to evade the payment of the bonds in the last case, the city of Salt Springs had been abolished 404 CONSTITUTIONAL LAW by the legislature and its temtory annexed to three adjacent cities. What relief, if any, would the bondholders have had? § 235. Suppose in the last mentioned bond case, at the time the bonds wei'e issued an action to enforce them could be brought at any time within seven years after they matured, but that when the bonds matured the time had been cut to five years, would this change be unconstitutional? § 236. May special pri\'ileges given to a corporation in its char- ter, such as fixing the rate of taxation, freedom from supervision, etc., be afterward revoked by the legislature? § 239. The Bayside corporation had a clause in its charter that it should never be taxed at over 1% of its assessed valuation. The Riverview corporation had a clause in its charter exempting it from all taxation. A special act of the legislature authorized the two cor- porations to convey all their "property, franchises and rights" to a new corporation, the Bayview Co. They did so. The general rate of taxation in the state is 2%. At what rate may the property of the Bayview Co. be taxed? § 241. The charter of the P. L. & T. R. R. Co. provided that the kinds of passengers it should carry should not be subject to control by the state. Later during an epidemic of smallpox the state for- bade all railroads to carry smallpox patients or corpses on their trains. Was this statute operative as to the P. L. & T. R. R.? § 243. Koch, the owner of a distillery in Kansas, made a con- tract with Hill whereby Hill agreed to act, and Koch to hire him, as selling agent for Koch for five years in the state. The following year Kansas passed a law forbidding the sale of liquor in the state. Hill contended that the law was unconstitutional as impairing his contract with Koch, Is his contention sound? Would the result be the same if the state had, subsequent to the contract, provided that all contracts for more than two years em- plojnnent should be void unless attested and this contract was not attested? § 246. Jones, a citizen of Illinois, while in New York executed his promissory note to Peters, a citizen of New York. The note was payable in New York. Jones returned to Illinois before the note was due, and went through bankruptcy under the Illinois bank- ruptcy law which was in force when he made the note and obtained his discharge in bankruptcy. Would this discharge bar Peters' claim on the note? APPENDIX 405 Would it make any difference if the note had been made and was payable in Illinois'? §248. Hill gave his note to Lynch for ''$10,000 with interest'* but the rate was not specified. The legal rate was at that time 6%. Subsequently the legislature increased the rate to 8% and made it applicable to all then existing notes. Is the law void as to Hill as impairing the obligation of the contract? §252. Which of the following acts (1) may be done by the states only if Congress has not acted (2) even though Congress has acted (3) not done by the states even though Congress has not acted? (1) Provide for the coinage of money, (2) Make treaties with foreign powers, (3) Provide for the naturalization of foreigners. (4) Regulate the speed at which interstate trains may run in towns. (6) Provide for discharges in bankruptcy. (7) Provide for quai-antining against infectious diseases. § 255. May Congress pass a statute forbidding the sale or stor- ing of gunpowder in large cities? § 257. Under what clause of the constitution did Congress have the right to acquire the Philippines? Suppose the President and Senate execute a treaty with Nicara- gua declaring it to be United States teiTitory, could it be shown in an action at law involving this question that in fact it was not United States territory? § 261. Into what classes may the territoiy over which the United States government may exercise authority be divided? § 262. Could a person be constitutionally convicted of a crime by less than a unanimous jury in the territory of Alaska? Could federal judges be appointed for less than life in that ter- ritory ? § 2'64. Could Congress in the Philippines : (1) Establish a state religion and prohibit any other? (2) Provide for trials by a jury of less than 12 men? (3) Levy import duties different from those prevailing in the United States? (4) Provide for punishment of crimes by burning at the stake? § 265. If the United States should go to war with Mexico and temporarily occupy part of its ten'itory, which of the acts men- 406 CONSTITUTIONAL LAW tioncd in the last question could be constitutionally provided for by Congress? § 276. Suppose that the United States government levied an ex- cise tax upon liquor of a certain description and the only liquor of that kind in the country was made for the purpose of exportation, would this be unconstitutional as a tax on exports'? § 277. Could the state of Texas constitutionally provide for a tax of ten cents a head on all cattle driven in from Mexico in order to provide a fund to pay for the examination of such cattle to see that they were not diseased? § 280. Could Congress, under the power to regulate interstate commerce, forbid the employment of women in faetoiies where arti- cles were manufactured for interstate trade? § 281. A manufacturer in Chicago hired a local expressman to take a load of machinery to a Chicago freight station to be carried to St. Louis. Was the expressman engaged in interstate commerce? § 282. Were the employees in the manufacturer's factory in the last case who brought the goods from the different parts of the factory to the shipping room engaged in interstate commerce? § 282. Suppose the goods above mentioned had been put on the train and started for St. Louis, and had then been stopped by the consignor and the car side-tracked. Would the car while so side- tracked be engaged in interstate commerce? § 286. May a state impose a tax of one cent a messag'e upon all telegraph messages sent in the state? § 290. May a state impose a tax per pole upon all telegraph and telephone poles placed on public highways? § 293. How far may a state regulate freight and passenger rates ? § 295. May a state require that interstate trains be heated to a certain fixed temperature while in the state? § § 297, 298. To what extent may a state forbid the importation ajid sale of intoxicating liquor? § 300. Would an act of Congress providing for the condemna- tion and nationalization of all the existing railroad and telegraph lines be constitutional? § 301. How far may Congress permit a state to determine for itself what articles of interstate commerce it will allow to be brought in the state? § 302. A power company built a dam on the Wisconsin river, making a long lake above the dam : the Wisconsin river flows into the Mississippi and is navigable below the dam. Would a steamer APPENDIX 407 navigating above 'the dam be within the maritime jurisdiction of tha United States? § 303. Would it make any difCerenee if in the last ease there was a canal around the dam? § 307. Could a state constitutionally issue bonds whose coupons were payable to bearer and receivable at their face value for all state taxes'? § 309. Could a state constitutionally pass a law making void contracts that called for payment in gold? § 315. Would a Federal income tax that increased as the in- comes taxed grew lai'ger be in violation of the provision that all taxes "shall be uniform?" § 321. Could Congress constitutionally provide as a part of its postal system for the carrying of all articles weighing not over 2,000 pounds ? § § 326, 327. Suppose that the United States made a treaty with Great Britain by which it was provided (1) that the eastern half of Maine should be regarded as British territory, (2) that citizens of Great Britain might acquire land in any of the United States, and that the state of Maine had statutes (1) that defined the boundaries of the state (2) that forbade foreigners to acquire land. Would either of these be affected by the treaty? § 330. Could Congress in time of war constitutionally declare confiscated all property found within the territory of the enemy even though the property belonged to citizens of the United States? § 332. Can the President in time of war constitutionally suspend the writ of habeas corpus in a part of the country where the reg- ular courts are still open? § 337. A state bankruptcy statute provided that the property of an insolvent debtor should be used first in the payment of the claims of local creditors and only the balance, if any, should be devoted to the payment of creditors from other states. Is the statute consti- tutional ? § 339. Suppose the statute last mentioned also provided that if a non-resident creditor wished to present his claim he must file a bond to pay costs in case the claim was rejected, no such require- ment being made as to local creditors. Would such a provision be constitutional? §343. The states of New York and Connecticut having a dis- pute as to their boundaries made an agreement as to where they should be fixed. By this agreement the land of Jones, who had al- 408 CONSTITUTIONAL LAW Avays claimed to be a resident of Connecticut was allotted to New Ycnk. lie claimed that New York had no jurisdiction over him be- cause Confrress had not consented to the agreement and the Consti- tution provides that **no state sliall, without consent of Congress . . . enter into any agreement with another state." Is his con- tention sound? § 347. Maj' a state levy an income tax which would cover the salary of a Federal officer? § 348. May it collect an inheritance tax upon the property of a deceased Federal officer? § 351. Into what two classes maj- the judicial powers of the Federal Constitution be divided? § 354. How are the various Federal courts at present organized ? § 357. If a laAvsuit between two citizens of the same state involves several questions, only one of which is a Federal question, how much of the case will be decided by the Federal court? § 358. Suppose the case has already been decided in the state Supreme court and it is then removed to the Federal court, what questions may be reviewed by the latter court? § § 365, 366, 367. In what cases will the Federal courts follow the decisions of the state courts as to what the local law is and in what cases will they refuse so to do? § 378. A state passed a law requiring its insurance commission- ers to exclude from the state certain insurance companies that had not complied with the state statute as to rates of premiums. The insurance companies alleged that the state rates were unconstitu- tional and asked a Federal court to enjoin the insurance commis- sioners from taking steps to exclude them from the state. Should the injunction be refused on the ground that it is a suit against the state and so forbidden by the constitution? TABLE OF CASES. Aclnirv. United States. 208 U. S. IGl 147,;J0'] lAaams V. New York, 192 U. S, 585 157 Adams Express Co, v. Ohio, IGG U. S. 185 1G2, 109 Addyston Pipe Co. v. United States, 175 U. S. 211 303 lAikens v. Wisconsin, 195 U. S 194 14S iAllgeyer v. Louisiana, 1G5 U. S. 578 135 American Insurance Co. v. Can- ter, 1 Pet. 511, .542 2G0, 261, 267 lAmerican Refrigerator Co. v. j Hall, 174 U. S. 70 160 JAmerican Sugar Co. v. Louisi- ! ana, 179 U. S. 89 195 Applicants for License, In re, ' 143 N. C. 1 21 jArndt v. Griggs, 134 U. S. 316.113 ! Ashley V. Ryan, 153 U. S. 436.. 298 i Attorney-General v. Williams, ! 174 Mass. 476 205 j Auditor v. Railroad, 6 Kan. 500 22 [ Austin V. Tennessee, 179 U. S. ! 343 280 I i Bacon v. Tax Commissioners, 126 Mich, 22 167 Bailey v. Alabama, 219 U, S. 219 90 Baldwin v, Franks, 120 U, S. 678 327 V.Hale, 1 Wall, 223 247 Ballard v. Thomas, 19 Gratt (Va.) 14 22 Bank of Commerce v. Tennes- see, 163 U. S. 416 242 Bank of United States v. Don- nally, 8 Pet. 361 218 Barbier v. Connolly, 113 U. S. 27 136 Barron v. Baltimore, 7 Pet. 243 54 Bauman v. Ross, 167 U. S. 548 ' 216, 218 Beers v. Arkansas, 20 How, 527.. .367 Bell V. Bell, 181 U,. S. 175 113 Bell's Gap Railroad Co. v. Pennsylvania, 134 U. S. 232 193 Benner v. Porter, 9 How. 235.267 Bertholf v. O'Reilly, 74 N. Y. 509 2.3, 44 Beseman v. Pennsylvania Rail- road, 50 N. J. L. 235... 210 Besette v. People, 193 111. 334, 144 Billings V. Illinois, 188 U, S, 97 197 Binghamton Bridge, The, 3 Wall, 51 234 Birdsoug, In re, 39 Fed, 599. . .108 Black V. State, 113 Wis, 205.. 197 Blackburn v. Portland Mining Co., 175 U. S. 571 357 409 410 TABLE OF CASES Blackstone v. INIiller, 1S8 U. S. ISO 172 Blair v. Chicago. 201 U. S. 400.237 I'.lake V. McCluiig. 172 U. S. 239 33S, 341 Board of Educatlou v. Blodgett, 155 111. 441 155 Board of Excise v. Merchant, 103 N. Y. 143 157 Bohm V. MetroiX)litan Railway Co., 129 N. Y. 57G 213 Eolin V. Nebraska, 176 U.S. 83.273 Boom Company v. Patterson, 98 U. S. 403 215 Booth V. Illinois, 184 U. S. 425 112 Bowman v. C. & N. Railway Co., 125 U. S. 465 200 Boyd V. Thayer, 143 U. S. 135. 75 V. United States, 116 U. S. 616 100, 102 Brewer Brick Co. v. Brewer, 62 Me. 62 181 Brimmer v. Rebman, 138 U. S. 78 2S2 Briscoe v. Bank of Kentucky, II Pet. 257 309 Bronson, Matter of, 150 N. Y. 1 172-3 Bronson v. Kinzie. 1 How. 311..229 V. Rodes. 7 Wall. 229 313 Brown v. Houston, 114 U. S. 522 292 V. Maryland, 12 Wheat. 419 276 Buck V. Beach. 206 U. S. 392.. 164 Buffalo East Side R. R. Co. v. Buffalo Street R. R. Co., III N. Y. 132 243 Burlington v. Beasley, 94 U. S. 310 1"8 Burrus, In re. 136 U. S. 586... 358 Butchers Union Co. v. Crescent City Co., Ill U. S. 746. .241 Buttfield V. Stranahan, 192 U. S. 470 122 ('alder v. Bull, 3 Dallas 386... 94 Caliloruia v . Central Pacific Railroad Co., 127 U. S. I 294, 321, 346 Callau V. Wilson, 127 U. S. 540 266 Campbell v, Sherman, 35 Wis. 103 47 Canada Southern Railway Co. V. Gebhard, 109 U. S. 527 248 Capital Traction Co. v. Hof, 174 U. S. 1 105 Carter's Case, 96 Va. 791 20 Carter v, Texas, 177 U. S. 442.130 Central Land Co. v. Laidley, 159 U. S. 103 125 Charles River Bridge v. War- ren Bridge, 11 Peters 420 235 Charlotte, C. & A. R. R. Co. v. Gibbes, 142 U. S. 386... 152 Chicago, B. & Q. Railway v. Babcock. 204 U. S. 585.. 126 V. Chicago, 166 U. S. 226.. 200 Chicago, etc., Railway v. Min- nesota, 1.34 U. S. 418.. 127 V. Sturm, 174 U. S. 710... 113 Chicago, R. I. & P. Ry. v. Zer- necke, 183 U. S. 582 152' Chicago T. Taylor, 125 U. S. 161 217 Chirac v. Chirac. 2 Wheat. 259. .74 Chisholm v. Georgia, 2 Dall. 419 366 Civil Rights Cases, 109 U. S. 3, II 57, 62 Clark V. Miller, 54 N. Y. 528. . 47 V. Nash, 198 U. S. 361.... 20i Cleveland, C. C. & St. Louis Railway v. Illinois, 177 U. S. 514 297 Clinton v. Englebrecht, 13 Wall. 434 261 Clyatt V. United States, 197 U. S. 207 57, 88 CONSTITUTIONAL LAW 411 Coe V. Errol, 116 U. S. 517.287, 292 Collector v. Day, 11 Wallace 113 348 Commonwealth v. Boston Ad- vertising Co., 188 Mass. 348 144 V. King, 150 Mass. 221 306 V. Sisson, 189 Mass. 247.. 119 V. Smith, 4 Binn, (Pa.) 117 38 V. Wyman, 12 Cush. 237.. 95 Connolly v. Union Sewer Pipe Co., 184 U. S. 540 .... 137, 192, 196 Converse, In re, 137 U. S. 624.125 Cooley V. Board of Wardens, 12 How. 299 288 Cooper, Matter of, 22 N. Y. 67... 21 Corfield v. Coryell, 4 Wash. C. C. 371 337, 339 Cornell v. Coyne, 192 U. S. 419 281 Covington Bridge Co. v. Ken- tucky, 154 U. S. 204 284 Craig V. Missouri, 4 Pet. 410.. 309 Crutcher v. Ky., 141 U. S. 47.. 298 Cummings v. Missouri, 4 Wall. 277 92, 99 Cunnius v. Reading School Dist., 198 U. S. 455 113 Daniel Ball, The, 10 Wall. 557. 286, 305 Dartmouth College v. Wood- ward, 4 Wheat. 518 .224 Davidson v. New Orleans, 96 U. S. 97 120, 133 Day, In re, 181 111. 73 21 Debs, In re, 158 U. S. 564 20 Delameter v. South Dakota, 205 U. S. 93 300 Delaware, L. & W. R. R. Co. v. Pennsylvania, 198 tJ. S. 341 159 De Lima v. Bidwell, 182 U. S. 1 264 S— 28 Detroit v. Street Railway Co., 184 U. S. 368 234 Dickey v. Maysfield Turnpike Co., 7 Dana 113 321 Dooley v. United States, 183 U. S. 151 280 Dorr V. United States, 195 U. S. 138 261, 270 Douglass V. Pike County, 101 U. S. 677 ,364 Downes v. Bidwell, 182 U. S. 244 205, 266, 270 Drayton, Ex parte, 153 Fed. 986. .90 Dred Scott v. Sandford, 19 How. 393 68, 75, 87 Eaton V. Boston, etc., Railroad, 51 N. H. 504 210 Eilenbecker v. Plymouth County, 134 U. S. 31 115 Elk V, Wilkins, 112 U. S. 94... 73 Enston, Matter of, 113 N. Y. 174 167 Fairbanks v. United States, 181 U. S. 283 281, 318 Fairchild v. St. Paul, 46 Minn. 540 206 Fall Brook Irrigation District V. Bradley, 164 U. S. 112 123, 126, 204 Fargo V. Hart, 193 U. S. 490 .163 Farist Steel Co. v. Bridgeport, 60 Conn. 278 205 Farris v. Vannier, 6 Dakota, 186 188 Fletcher v. Peck, 6 Cranch. 87.223 Florida Central Ry. Co. v. Rey- nolds, 183 U. S. 471.... 181 Fong Yue Ting v. United States, 149 U. S. 698 325 Forsyth v. Hammond, 166 U. S. 506 123, 184 Forsythe v. Hammond, 142 Ind. 505 19 4V2 TABLE OF CASES Fort Leavenworth Railroad Co. V. Lowe, 114 U. S. 525.. 329 Fox V. MeDouald, 101 Ala. 51.. 21 Franklin Needle Co. v. Frank- lin, 65 N. H. 177 181 French v. Barber Asphalt Co., 181 U. S. 324 190 Galway v. Elevated Railway, 128 N. Y. 132 218 Garnett, In re, 141 U. S. 1.306,307 Garrett v. Elevated Ry., 79 Md. 277 214 Geer v. Connecticut, 161 U. S. 519 151, 301 General Oil Co. v. Grain, 209 U. S. 211 287 Geofroy v. Riggs, 133 U. S. 258 327 Georgia v. Stanton, 6 Wall. 50. 41 Gibbons v. Ogden, 9 Wheat 1 251, 283 Giles V. Harris, 189 U. S. 475 40, 80 V. Walker, 24 Q. B. D. 656 153 Gilman v. Philadelphia, 3 Wall. 713 254 Gonzales v. Williams, 192 U. S. 1 73 Gordon v. Comes, 47 N. Y. 608 187 Goshen v. Stonington, 4 Conn. 209 155 Grand Rapids, etc., R. R. Co. V. Osborne, 193 U. S. 17. .151 Green, In re, 134 U. S. 377. . . . 78 Green v. Commonwealth, 12 Al- len, 155 49 Greene v. Biddle, 8 WTieat. 1..344 Greenwood v. Marginal Freight Co., 105 U. S. 13 245 Gulf, etc., Railroad Co. v. Ellis, 165 U. S. 150 138 Hagar v. Reclamation District, 111 U. S. 701 121 Hale V. Henkel, 201 U. S. 43 100, 101 Hanley v. Kansas City South- ern Railway Co., 187 U. S. 617 296 Hans V. Louisiana, 134 U. S. 1 370 Harris v. People, 128 111. 585.. 105 Hawaii v. Mankichi, 190 U. S. 197 270 Hawker v. New York, 170 U. S. 189 98 Head V. Amoskeag Co., 113 U. S. 9 151 Heff, Matter of, 197 U. S. 488. .324 Heine v. Levee Commissioners, 19 Wall. 655 231 Hepburn v. Griswold, 8 Wall. 603 312,314 Hilton V. Merritt, 110 U. S. 97 123 Hodges, Ex parte, 87 Cal. 162. .153 Holden v. Hardy, 169 U. S. 366 141 Home Ins. Co. v. Morse, 20 Wall. 445 150 Home Telephone Co. v. Los An- geles, 211 U. S. 265 242 Hooper v. Emery, 14 Me. 375 . . 176 Houston & Texas Railroad Co. V. Texas 177 U. S. 66... 310 Howard v. Illinois Central Rail- road Co., 207 U. S. 463 258, 303 Howes V. Maxwell, 157 Mass. 333 152 Hudson Water Co. v. McCarter, 209 U. S. 349 151 Hurtado v. California, 110 U. S. 516 115, 133 Huse V. Glover. 119 U. S. 543 283, 293 Hyde v. Continental Trust Co., 158 U. S. 601 319 CONSTITUTIONAL LAW 413 Illinois Central Railway Co. v. Illinois, 146 U. S. 387... 242 Interstate Commerce Commis- sion V. Brimson, 154 U. S. 447 18 Iowa Central Railway v. Iowa, 160 U. S. 389 115 Jackson, Ex parte, 96 U. S. 727 103 James, Matter of, 144 N. Y, 6 167 James v. Bowman, 190 U. S. 127 66 Jones V. United States, 137 U. S. 202 260 Juilliard v. Greenman, 110 U. S. 421 316 Kadderly v. Portland, 44 Ore. 118 83 Kansas v. Colorado, 185 U. S. 125 359 V. United States, 204 U. S. 331 360 Keller v. United States, 213 U. S. 138 258 Kelly V. Pittsburg, 104 U. S. 78 185 Kemmler, In re, 136 U. S. 436 108 Kemmler v. Durston, 119 N. Y. 569 108 Kidd V. Pearson, 128 U. S. 1 . .299 Kingman v. Brockton, 153 Mass. 255 204 Kirtland v. Hotchkiss, 100 U. S. 491 164 Kneedler v. Lane, 45 Pa. 238 . .332 Knowlton v. Moore, 178 U. S. 41 197, 318 Knoxville Iron Co. v. Harbi- son, 183 U. S. 13 147 Kohl V. United States, 91 U. S. 367 253 L'Hote V. New Orleans, 177 U. S. 587 143 Lane County v. Oregon, 7 Wall. 71 313 Lawton v. Steele, 152 U. S. 133 118 Leffingwell v. WaiTen, 2 Black 599 364 Legal Tender Cases, 12 Wall. 457 254,315 Lehew v. Brummell, 103 Mo. 546 143 Leisy v. Hardin, 135 U. S. 100 299 License Tax Cases, 5 Wall. 462 318 Lincoln Co. v. Luning, 133 U. S. 529 369 Lindsay v. Montana Fed. of La- bor, 37 Mont. 264 84 Litchfield v. Vernon, 41 N. Y. 123 187 Loan Association v. Topeka, 20 Wall. 655 175,178,180 Lochner v. New York, 198 U. S. 45 141,147 Loewe V. Lawlor, 208 U. S. 274 .303 Logan V. United States, 144 U. S. 263 254 Loney, In re, 134 U. S. 372... 347 Long Island Water Co. v. Brook- lyn, 166 U. S. 685 206, 207, 219 Los Angeles v. Los Angeles Wa- ter Co., 177 U. S. 558.. 234 Lottery Case, 188 U. S. 321. . . .256 Loughborough y. Blake, 5 Wheat. 317 264 Louisiana v. Jumel, 107 U. S. 711 372 Louisville & Jeffersonville Fer- ry Co. V. Kentucky, 188 U. S. 385 159 414 TABLE OF CASES Louisville & Nashville R. R. Co. V. Keutueky, 161 U. S. 677 242 V. Kentucky, 183 U. S. 503 126 Lowell V. City of Boston, 111 Mass. 454 177 Luther V. Borden, 7 How. 1. .40,83 McCall V. California, 136 U. S. 104 291 McCardle, Ex parte, 7 Wall. 506 353 McCray v. United States, 195 U. S. 27 198,256 McCrea v. Roberts, 89 Md. 238 19 McCulloch V. Maryland, 4 Wheat. 316 251,311 McFaddin v. Evans-Snider-Buel Co., 185 U. S. 505 154 McGahey v. Virginia, 135 U. S. 662 233 McPherson, Matter of, 104 N. Y. 306 193 Magoun v. Illinois Trust & Sav- ings Bank, 170 U. S. 283 197 Maine v. Grand Trunk Rail- road Co., 142 U. S. 217.. 294 Manigault v. Springs, 199 U. S. 473 243 Marbury v. Madison, 1 Cranch (U. S.) 137 34 Marx Co. v. Watson, 168 Mo. 133 84 Maxwell v. Dow, 176 U. S. 581 115 May v. New Orleans, 178 U. S. 496 278 Maynard v. Hill, 125 U. S. 190 145, 222 Mechanics' Savings Bank v. Al- Kfn, 28 Conn. 97 154 Meriwether v. Garrett, 102 U. 5. 472 232 Merriam's Estate, In re, 141 N. Y. 479 171 Merrill v. Sherburne, 1 N. H. 199 16 Merryman, Ex parte, Taney 246 333 Metropolitan Ins. Co. v. New Orleans, 295 U. S. 395, 166 Michigan Central Railway v. Powers, 201 U. S. 245 ..123 Mighell V. Sultan of Johore, (1894) 1 Q. B. 149 366 Miller v. United States, 11 Wal- lace 268 331 Milligan, Ex parte, 4 Wall. 2 332, 334 Minor v. Happersett, 21 Wall. 162 82 Minot V. Winthrop, 162 Mass. 113 198 Mississippi v. Johnson, 4 Wall. 475 43 Missouri v. Illinois, 180 U. S. 208 359 Missouri Pacific Ry. Co. v. Ne- braska, 164 U. S. 403 200, 201 Mitchell v. Clark, 110 U. S. 633 154 Mobile V. Watson, 116 U. S. 289 232 Monongahela Co. v. United States, 148 U. S. 312 207, 304 Morley v. Lake Shore Railway Co., 146 U. S. 162 222 Mormon Church v. United States, 136 U. S. 1 261 Mugler V. Kansas, 123 U. S. 623 142 Muller V. Oregon, 208 U. S. 412 141, 156 Munday v. Rahway, 43 N. J. L. 338 22 CONSTITUTIONAL LAW 415 Murray v. Hoboken Land Oo., 18 How. 272 102, 117 National Council v. State Coun- cil, 203 U. S. 151 139 National Mutual Building, etc., Ass'n V. Brahan, 193 U. S. 635 220 Neely V. Henkel, 180 U. S. 109. .271 New Hampshire v. Louisiana, 108 U. S. 76 368 New Orleans v. Clark, 95 U. S. 644 154, 182 V. Houston, 119 U. S. 265.. 167 New Orleans Gas Co, v. Louisi- . ana Light Co., 115 U. S. 650, 672 234, 241 New Orleans Waterworks Co. v. Louisiana Sugar Co., 125 U. S. 18 220 V. Rivers, 115 U. S. 674 234 New York, etc., Ry. v. Bristol, 151 U. S. 556 152 V.Miller, 202 U. S. 584 160 Newton v. Commissioners, 100 U. S. 548 241 Nickerson v. Boston, 131 Mass. 306 153 Nishimura Ekiu v. United States, 142 U. S. 651 325 North Dakota v. Nelson County, 1 N. D. 88 183 Northern Securities Co. v. United States, 193 U. S. 197 302 Norwalk Street Railroad's Ap- peal, 69 Conn. 576 18 Norwood V. Baker, 172 U. S. 269 121, 189, 190 Oceanic Nav. Co. v. Stranahan, 214 U. S. 320 122 Ogden V. Saunders, 12 Wheat. 213 247 Ohio & Mississippi Railroad Co. V. Wheeler, 1 Black 28G..361 Ohio Oil Co. T. Indiana, 177 U. S. 190 151 Opinion of Justices, 14 Gray, 614 26 Opinion of Justices, 175 Mass. 599 183 Opinion of Justices, 103 Me. 506 151 Osborne v. United States Bank, 9 Wheat, 738 371 Otis V. Parker, 187 U. S. 606.. 137 Pacific Railroad Removal Cases, 115 U. S. 1 358 Patapsco Guano Co. v. North Carolina, 171 U. S. 345,. 282 Paul V, Virginia, 8 Wall. 168 74, 287 Pearcy v. Stranahan, 205 U. S. 257 260 Pembina Oo. v. Pennsylvania, 125 U. S. 181 138, 298 Pennoyer v. McConnaughy, 140 U. S. 1 372 V. Neff, 95 U. S. 714 112 Pensacola Telegraph Oo. v. Western Union Tele- graph Co., 96 U. S. 1 284, 321 People V. Assessors, 156 N. Y. 417 346 V. Comp. Gen. Transatlan- tique, 107 U. S. 59 281 V. Draper, 15 N. Y. 532... 44 V. Gillson, 109 N. Y, 389.. 146 V, Hayes, 140 N. Y. 484... 95 V. Keeler, 99 N. Y. 463... 21 V.Marx, 99 N. Y. 377 141, 146 V. Mensching, 187 N. Y. 8. . 195 V.Morton, 156 N. Y. 136., 43 V. O'Brien, 111 N. Y. 1 246 V. Reardon, 184 N. Y. 431 193, 196 V.Rice, 135 N. Y. 473.. 39, 42 416 TABLE OF CASES People V. Rlnge, 125 App. Div. (N. T.) 592 144 V.Roberts, 159 N. Y. 75.. 322 Perry v. Keene, 56 New Ilamp- shire. 514 179 Philadelphia Fire Association v. New York, 119 U. S. 110 139 Picard v. East Tennessee Rail- way Co., 130 U. S. 637 238 Pierce v. Carskadon, 16 Wall. 234 92 Plessy V. Ferguson, 163 U. S. 537 143, 145 Plumley v. Massachusetts, 155 U. S. 461 156,300 Plummet v. Coler, 178 U. S. 115 347 V. Northern Pacific Ry., 152 Fed. 206 155 Poindexter v. Greenhow, 114 U. S. 270 309 Pollard V. Hagan, 3 How. 212. .273 Pollock V. Farmers' Loan & Trust Co., 157 U. S. 429 46, 319 V. Farmers' Loan and Trust Co., 158 U. S. 601 48, 319 Powell V. Pennsylvania, 127 U. S. 678 141 Prize Cases, The, 2 Black, 635 331 Protector, The, 12 Wallace, 700 332 Public Clearing House v. Coyne, 194 U. S. 497 123, 321 Pumpelly v. Green Bay Co., 13 Wall. 166 209 Quarles, In re, 158 U. S. 532 347, 357 Rahrer. In re, 140 U. S. 545.. 304 Railroad Co. r. Maryland, 21 Wall. 456 2i)5 V.Otoe, 16 Wall. 667 175 V. Peniston, 18 Wall. 5 .347 V.Rock, 4 Wall. 177 220 Rapier, In re, 143 U. S. 110... 256 Rassmussen v. United States, 197 U. S. 516 266 Rauenstein v. Railroad, 136 N. Y. 528 213 Rawlins v. Georgia, 201 U. S. 6.38 130 Reining v. Railroad, 128 N. Y. 157 213 Reynolds v. United States, 98 U. S. 145 90 Rhode Island v. Massachusetts, 12 Pet. 657 .359 Rhodes v. Iowa, 170 U. S. 412 300, 304 Rigney v. Chicago, 102 111. 64 217 Robbins v. Shelby County Tax- ing District, 120 U. S. 489 287, 291 Robert W. Parsons, The, 191 U. S. 17 306 Roberts v. Harrison, 101 Ga. 773 153 Robertson v. Baldwin, 165 U. S. 275 84,87 Roby v. Smith, 131 Ind. 342 338 Rogers v. Peck, 199 U. S. 425. .359 Rogers Park Water Co. v. Fer- gus, 180 U. S. 624 236 Roller V. Holly, 176 U. S. 398. .125 Ross, In re, 140 U. S. 453 271 St. John V. New York, 201 U. S. 633 156 St. Louis, etc., Ry, v. Mathews, 165 U. S. 1 152 San Diego Co. v. Neale, 78 Cal. 63 215 Sanborn, In re, 148 U. S. 222. . 19 CONSTITUTIONAL LAIW Satterlee v. Mathewson, 2 Pet. 417 380 248 Sauer v. New York, 206 U. S. 536 213 Savings & Loan Society v. Multnomah County, 169 U. S. 421 159 Sawyer v. Davis, 136 Mass. 239 210 Schick V. United States, 195 U. S. 65 105 Scott V. Donald, 165 U. S. 58.. 290 Scranton v. Wheeler, 179 U. S. 141 210 Security Ins. Co. v. Prewitt, 202 U. S. 246 150 Selliger v. Kentucky, 213 U. S. 200 165 Sharpless v. Philadelphia, 21 Pa. 147 175 Sheffield, In re, 64 Fed. 833. .>.322 Shepherd v. People, 25 N. Y. 406 95 Silz V. Hesterberg, 211 U. S. 31 156, 301 Singer v. Maryland, 72 Md. 464 144 Sinking Fund Cases, 99 U. S. 700 39 Sinnot v. Davenport, 22 How. 227 298 Slaughter House Cases, 16 Wall. 36 65, 336, 141 Smith v. St. Louis & S. W. Ry., 181 U. S. 248 301 Smyth V. Ames, 169 U. S. 466 149, 297 Soon Hing v. Crowley, 113 U. S. 703 137 South Carolina v. United States, 199 U. S. 437 320 South Dakota v. North Caro- lina, 192 U. S. 286. .359, 368 Southern Ry. v. Green, 216 U. S. 400 139 Spinney, Ex parte, 10 Nev. 323 342 Splane, In re, 123 Pa. 527 21 Springville v. Thomas, 166 U. S. 707 104 Sproule V. Fredericks, 69 Miss. 898 273 Stanford's Estate, In re, 126 Cal. 112 338 State V. Davidson, 114 Wis. 563 183 V. Gazley, 5 Ohio 14 22 V. Nash, 66 Ohio 612 43 V. Newark, 37 N. J. L. 415. .191 V. O'Neil, 58 Vt. 140 109 V. Osawkee, 14 Kan. 418.. 183 V. Patterson, 42 N. J. L. 615 190 V. Whittaker, 48 La. Ann. 527 109 V. Workman, 35 West Va. 367 85 State Bank of Ohio r. Knoop, 16 How. 369 234 State Freight Tax, 15 Wall. 232 290 State Railway Tax Cases, 92 U. S. 575 161 State Tax on Foreign-held Bonds, 15 Wall. 300. .159, 164 State Tonnage Tax Cases, 12 Wall. 204 283 Steams v. Minnesota, 179 U. S. 223 273 Steger v. Traveling Men's Bldg. Assn., 208 111. 236 154 Stokes V. State, 5 Baxt. (Tenn.) 619 100 Stone V. Mississippi, 101 U. S. 814 240 Strauder v. West Virginia, 100 U. S. 303 129 Strouse, In re, 1 Sawyer 605.. 102 Sturges V. Crowninshleld, 4 Wheat. 117 227, 255 41S TABLE OF CASES Suydam v. Williamson, 24 How. 427 363 Swift, Matter of. 137 N. Y. 77. .170 Swift V. Tyson. 16 Pet. 1 363 Talbot V. Hudson, 16 Gray (Mass.) 417 203 Tappan v. Mercliants' National Bank, 19 Wall. 400 167 Templar v. State Board of Ex- aminers, 131 Micii. 254 144, 342 Tennessee v. Davis, 100 U. S. 257 323, 356 Texas v. White, 7 Wall, 700 ~ 272, 345 Thompson v. Missouri, 171 U. S. 380 96 V. Utah, 170 U. S. 343. .94, 104 Trade Mark Cases, 100 U. S. 25 258 Turner v. Maryland, 107 U. S. 38 282 Twining v. New Jersey, 211 U. S. 78 112, 128 United States v. Arjona, 120 U. S. 479 323 V. Bromley, 12 How, 88 320 V. DeWitt, 9 Wall. 41 258 V. Hall, 98 U. S. 343 183 V. Hudson, 7 Cranch 32 362 V. Ju Toy, 198 U. S. 253 124, 325 V. Kagama, 118 U. S. 375.. 324 V. Knight Co.. 156 U. S. 1. .285 V. Lav^Tence, 4 Cranch 518 107 V. Railroad Co., 17 Wallace 322 348 V. Realty Co., 163 U. S. 427 47, 182 V. Texas, 143 U. S. 621... 360 V. Williams, 194 U. S. 279. .325 V, Wong Kim Ark, 169 U. S. 649 67, 68, 76 Van Brocklin v. Tennessee, 117 U. S. 151 346 Vance v. Vandercook Co., 170 U. S. 438 142 Veazie Bank v. Fenno, 8 Wall. 533 311 Vicksburg Railroad Co. v. Den- nis, 116 U. S. 665 236 Virginia, Ex parte, 100 U. S. 339 62, 130 Virginia v. Rives, 100 U. S. 313. . 130 V. Tennessee, 148 U. S. 503. .344 V. West Virginia, 206 U. S. 290 360 Virginia Coupon Cases, 114 U. S. 269 369 Von Hoffman v. Quincy, 4 Wall. 535 227, 229, 230, 244 Wabash Railway Company, The, 118 U. S. 557 296 Walker v. Cincinnati, 21 Ohio 14 188 Ward V. Maryland, 12 Wall. 418 338 Webb V. Outrim, (1907) A. C. 81 31 Webber v. Virginia, 103 U. S. 334 322 Weeks V. Milwaukee, 10 Wis. 242 178 Welch V. Swasey, 214 U. S. 91 . . 144 Welsh V. State, 126 Ind. 71... 342 W^elton V. Missouri, 91 U. S. 275 290 West V. Cabell, 153 U. S. 78.. 103 V. Louisiana, 194 U. S. 258 129 Western v. Charleston, 2 Pet. 449 346 Western Turf Association v. Greenberg, 204 U. S. 359 139 Western Union Co. v. Call Pub- lishing Co., 181 U. S. 92 ..,„ 36J CONSTITUTIONAL LAW 419 Western Union Telegraph Co. v. Kansas, 216 U. S. 1 139 V. Massachusetts, 125 U. S. 530 293 V.Missouri, 190 U. S. 412.. 169 V. Myatt, 98 Fed. 335 18 Weston V. Charleston, 2 Pet. 449 346 Wheeling Bridge & T. Ry. Co. V. Paull, 39 W. Va. 142.. 22 White V. Elevated Railway, 154 111. 620 216 Whiting, Matter of, 150 N. Y. 27 173 Willamette Bridge Co. v. Hatch, 125 U. S. 1 301 Williams v. Bruffy, 96 U. S. 176 221 V. Fears, 179 U. S. 270 295 V. Mississippi, 170 U. S. 213 81 Wilson, Ex parte, 114 U. S. 417 106 Wilson V. Shaw, 204 U. S. 24. . .260 Wong Wing V. United States, 163 U. S. 228 326 Woodruff V. Mississippi, 162 U. S. 291 312 V. Parham, 8 Wall. 123.276, 291 Worcester v. Georgia, 6 Pet. 515 323 Wurts V. Hoagland, 114 U. S. 606 152 Wyman, Petitioner, 191 Mass. 276 327 Yarbrough, Ex parte, 110 U. S. 651 77 Yazoo & Mississippi R. R. Co. V. Adams, 180 U. S. 1 238 Yick Wo V. Hopkins, 118 U. S. 356 138 Young, Ex parte, 209 U. S. 123 128, 374 INDEX ABOLITION— of indebted municipality to avoid payment of debts, 231-2. ABSOLUTE RIGHTS (See Right). ACT OF SETTLEMENT (See Settlement). ADMINISTRATIVE— bodies cannot exercise judicial powers, 16-8. interests, whether superior to obligation of contract, 241-2. officers, power to settle administrative questions, 123, questions, settlement of, 123. ADMISSION (See States and New States). ADMISSION TO THE BAR— control of, by courts, 20-1. ADVISORY OPINIONS— nature and effect of, 48-9. ALIEN— federal power over, 324-6. ALIEN PROSTITUTES (See Prostitutes). AMENDMENT— of constitution, 12-4. of federal constitution (See Federal Constitution). AMENDMENT OF CONSTITUTIONS— (See Constitution). (See Federal Constitution). AMERICAN CONSTITUTIONAL HISTORY (-Sfee Constitutional History). ANTI-TRUST— manufacture not within scope of, 284-5. APPELLATE JURISDICTION— of federal courts (See Federal Courts). APPOINTMENT OF OFFICERS— in whom vested, 21-2, 421 422 INDEX ARTICLES OF CONFEDERATION— adoption of, 8. prohibitions upon states In, 24. provisions of, 10. ARTIFICIAL WATER— may be subject to federal jurisdiction, 306. ASSESSMENTS (See Local Assessments). ATMOSPHERE— pollution of, not taking of property, 210-11. ATTAINDER {See Bill of Attaindee). ATTORNEY— excluded from jury service, 130. state requirements for practice by. 341. BAIL— how determined, 107. BAKERIES— limitation of day's labor in, 141. BANK NOTES— power to issue, in states and United States, 310-11. prohibitive tax imposed upon issue by states, 311. where taxable, 164. BANKRUPTCY-. discharge in, as affecting obligation of contract, 246-7. power to legislate concerning, concurrent in nations and states. 255 whether impairing obligation of contract, 226-7. BANKS, BANKING AND TRUST COMPANIES— subject to stringent regulation, 149-50. BAR {See Admission to the Bab). BARBER— may not be required to be a citizen, 144. requirement of citizenship for license, invalid, 342. BENEFIT— compensation in, for exercise of eminent domain, 215-6. in local assessment must equal assessment, 189-90. "BETTERMENT LAWS"— whether valid, 155. BILL BOARDS— right to forbid, 143-4. CONSTITUTIONAL LAW 428 BILL OF ATTAINDER— what constitutes, 92. BILL OF RIGHTS— in state and federal constitutions, 53-4. subject discussed, 4. BILLS OF CREDIT— issuance of, by states, prohibited, 309. issuance of, by United States, 308-9. what constitute, within prohibition upon states, 309-10. BLACKLISTING— may be forbidden, 147. BOARDS— exercise of legislative power by, 118-9. BOND DEBTS— suits between states upon, 367-8. BONDS {See Municipal Bonds). hampering use of coupons of, 233. where taxable, 164-5. "BORN WITHIN THE UNITED STATES"— meaning of, 69-70. BOUNTY-^ provision for payment of, on sugar after repeal of act, 182. to sugar producers, 46-7. BUSINESS— may be charged with expense of avoiding peculiar dangers, 152. subject to regulation where affected with a public interest, 148-50. BUTCHERS— rights of, to pursuit of occupation, 63. CATTLE— slaughtering of, subject to regulation, 141. when diseased, may be destroyed, 201. CHANGE OF GOVERNMENT (See Government). CHARITY— taxation for public, valid, 183. CHARTER PRIVILEGES— as contracts protected against impairment. 233-4. construed as non-transferable, 237-8. within prohibition of Impairment, strictly construed, 235-7. CHATTELS— location of, for purposes of taxation, 159-60. 484 INDEX CHILDREN— born abroad of American parents, bow made citizens, 76. bom on foreign public vessels, status of, 71. born to diplomatic representatives, status of, 70-1. born to public enemies in hostile occupation, status of, 71-2. compulsory education of, 145. CHINESE— cannot be naturalized, 75. citizens if born in the United States, 68. determination of right of, to enter United States, 124. CHISHOLM V. GEORIGA— case cited, 366. CHURCHES— may be exempted from taxation, 181. CIGARETTES— attempted evasion of law against, by importation in small pack- ages, 279-80. classification of dealers in, for purposes of taxation, 194. CITIZENS (-See Citizenship). interstate privileges of, 335-6. occupational qualifications as affected by domicile of, 341-2. of states may have benefit of proprietary interest, 338-9. of states, privileges and immunities of, 336-7. of United States, privileges and immunities of, 62-5. procedural rights of, as affected by domicile. 340-1. state discrimination against those of other states forbidden, 338. CITIZENSHIP {See Diveese Citizenship). British, 67. does not include right of suffrage, 81-2. exclusion from, of person not subject to federal jurisdiction, 70-3. federal, meaning of, 67-8. how far enjoyed by cori)orations, 74. limitations upon, 68-73. state, as affected by the fourteenth amendment, 75-6. state, power to confer, 75-6. under Fourteenth Amendment, 68. CIVIL RIGHTS ACT— subject discussed, 59-61. CLEARING HOUSE (See Banks, Banking and Tbust Compaky). CLERGYMEN (See Ministebs). COLLECTIVE NATURALIZATION (See Natttbalization). < CONSTITUTIONAL LAW, COLLUSIVE LITIGATION— not considered by courts, 45. COMBINATIONS IN RESTRAINT OF TRADE— may be forbidden by statute, 147-8. COMMERCE— defined, 283-5. distinguished from manufacturing, 284-5. interstate, defined, 285-6. interstate, signifies passing of state line, 287. COMMISSION— Interstate Commerce {See Interstate Commeece Commission). COMMON LAW— decisions of state courts on, followed by federal courts, 362-3. non-existent in federal system, 361-2. COMPENSATION— measure of, in eminent domain, 214-5. payment of, essential to exercise of eminent domain, 199-200. COMPETITION— regulation of, to prevent fraud, 146. CONCURRENT JURISDICTION— of federal courts (See Fedebal Courts). CONCURRENT POWERS (See Federal Powers). CONDEMNATION (See Eminent Domain). CONFEDERATE STATES— status of, during Civil War, 344-5. CONFEDERATION— (See Articles of Confederation). failure of, 11. CONFLAGRATION— destruction of property to prevent spread of, 201. CONGRESS— (See Federal Powers). cannot be compelled by courts to act, 43. control of election of presidential electors by, 77-8. may regulate congressional elections, 77. power of, to regulate commerce (See Regulation of Commerce). vested with maritime power, 307. CONGRESSIONAL REPRESENTATION— as affected by limitations of suffrage, 82. CONSTITUTION— (See Federal Constitution). (See State Constitutions). amending, methods of, 5, 12-5. in England and the United States, 5. 426 INDEX CONSTITUTION— Continued. peaceful revolution, 14-5. where constitutions contain no express provision, 13. where exclusive methods are provided by constitutions, 14. where non-exclusive methods are provided by constitutions, 14. defined, 3. earliest American state, S-9. English (See English Constitution). ! Federal (See Federal Constitution). I of Massachusetts, 9-10. ' prohibitive features of, 6. I provisions of, 50-3. j establishing frame of government, 50. i guaranteeing private rights, 50-1. 1 regulating government in detail, 52-3. j regulating intergovernmental relations under federal system, 52. ' unwritten, 3-5. distinguished from written, 5. written, in America, 5-6. CONSTITUTIONAL CONVENTION— how called, 11-2. .' CONSTITUTIONAL GUARANTIES— in early state constitutions and federal constitution, 53. ; scope and history of, 50-66. ;l CONSTITUTIONAL HISTORY— | American, before 1789, 7-8. 'i CONSTITUTIONAL LAW— I; (See Constitutional Guaranties). American, nature of, 1-3. article on subject, 1-375. M due process and equal protection of law, 111-248 (See Due Peocess OF Law), eminent domain, 199-218 (See Eminent Domain). federal government, 249-375. federal powers, 249-58 (See Federal Powers). impairment of obligation of contracts, 219-48 (See Impaibment of Obligations of Contracts). intergovernmental relations, 335-48. limits of separation of governmental powers, 21. money and banking, 308-16 (See Money and Banking). object of, 2-3. personal and religious liberty, 86-90. police power, 139-57 (See Police Power). political rights, 67-85. CONSTITUTIONAL LAW 427 CONSTITUTIONAL LAW— Continued. power to declare laws unconstitutional, 28-49 {See Power to De- clare Laws Unconstitutional), protection to persons accused of crime, 91-110. historical reasons for, 91. regulation of conuuerce, 274-307 (See Regulation of Commebce). separation of departments of government, 16-28. American doctrine, 16. territories, dependencies and new states, 259-73. CONSTITUTIONAL PROHIBITIONS— applicable in states and incorporated territories, 266. application of, in territories, 261-2. in general not applicable to unincorporated territory, 267-70. functions of, 62. CONSTRUCTION— of federal powers (See Federal Powers). CONSULS— constitution not applicable to trial by, in foreign territory, 271. CONTEMPT OF COURT— imprisonment for, 374. inherent power of court to punish, 20. CONTRACTS— foreign, enforcement of, 248. impairment of obligations of (See Impairment of Obligations of Contracts ) . increasing obligation of, by law, 248. private, affecting public interest, subject to regulation, 243. taken under eminent domain, 206. under what conditions discharged by bankruptcy, 240-7. within prohibition of impairment of obligations of, 221-2. CONVENTION, CONSTITUTIONAL (See Constitutional Convention). COPYRIGHT— federal jurisdiction of, 321-2. CORPORATE FRANCHISES— where taxable, 168-9. CORPORATION— citizen of state of creation, 361. control of, by states, 138-9. federal, may sue or be sued in federal courts, 357-8. franchise of, taxable by state, 293-5. how far under equal protection of the laws, 138-9. in what sense citizens, 74. interstate business of, not subject to state limitations, 297-8. S— 29 428 INDEX CORPORATION— Continued. not protected by immunity of agents, 100. place of business as afifecting situs of stock, 167. property of. where taxable, 160-3. regulation of, 150. sale of stock on margin, 137. CORPORATION CHARTER— as contract protected against impairment, 224-5. COUPONS (See Bonds). COURT— control of admission to the bar, 20-1. inherent power to punish contempt of, 19-20. COURT OF VISITATION— regulation of public service companies by, 17-8. COURTS— (See Fedebal Courts). access to, requisite upon question of due process of law, 126-8 cannot be vested with non-judicial powers, 18-9. cannot compel action by legislature or executive, 42-3. decisions of, not impairment of obligations of contracts, 220. of territories, 266-7. power of, 21-2, 32-6. to appoint officers, 21-2. to assess taxes, 22. to declare laws unconstitutional, 32-6. CREDIT (See Bills of Cbedit). CREDITOR— debts taxable at residence of, 164. CREDITS— employed in business, where taxable, 165-6. CRIME— (See Infamous Ceime). protection to persons accused of (See Constitutional Law). CRIMINAL PROCEDURE (See Habeas Corpus). CRIMINAL PROSECUTION— privilege against unreasonable searches and seizures applicable to, 102. protection against, in case of self-incrimination, 100-1. CRUEL AND UNUSUAL PUNISHMENT— forbidden by constitutions, 107-9. CUBA— federal constitution not applicable during American occupation of, 270-1. CONSTITUTIONAL LAW 429 DAMAGES— by statute, recoverable in emineut domain proceedings, 217. DARTMOUTH COLLEGE CASE— principle illustrated, 224-5. DEBT (See Bond Debts). documentary evidence of, where taxable, 164, taxable by state of debtor on death of creditor, 171-2. where taxable, 163-4. DECLARATION OF INDEPENDENCE— adoption of, 8. DEPARTMENTS OF GOVERNMENT— (/See Constitutional Law). inherent powers of, 19-21. separation of, 29. DEPRIVATION OF PROPERTY— forbidden by due process of law, 135. DESTRUCTION— of personal property, 117-8. DIPLOMATIC REPRESENTATIVES— children of, born in the United States, not citizens, 70-1, DIRECT TAXES— within language of constitution, defined, 318-9. DISCHARGE {See Bankbtjptcy). DISCRETION (See Legislative Discbetion). DISCRIMINATION— arbitrary, forbidden, 137-8. DISTRIBUTION— to public, of public funds, invalid, 176-7. DISTRICT— taxing (See Taxing District) . DISTRICT OF COLUMBIA— status of, 266. DIVERSE CITIZENSHIP— as ground of federal jurisdiction, 360-1. DIVORCE— within control of state, 222. DOCTORS— (See Physician). excluded from jury service, 130. 480 INDEX DOCUMENTARY EVIDENCE— of debts or property, where taxable, 164-5. DOMESTIC RELATIONS AND PERSONS— (See Marbiage; Divorce), control of, under police power, lM-5. DOMESTIC VIOLENCE— states protected against, 83. DOMICILE— as affecting occupational qualifications of citizens, 341-2. of citizens, as affecting procedural rights, 339-41. DRED SCOTT CASE— case cited, 87. DRUMMER— not subject to state taxation on orders for interstate commerce, 292. DUE PROCESS OF LAW— access to courts essential upon question of, 126-8, applies to all departments of government, 132-3. applies to rights as well as procedure, 131. as affecting delegation of legislative power to boards, 118-9. as affecting procedure for taxation and eminent domain, 119-21. as affecting summary destruction of personal property, 117-8. as affecting taxation, 158-98. deprivation of property forbidden by, 135. does not forbid self-incrimination, 128. does not require confronting witnesses, 128-9. does not require notice of legislative acts, 118, equal protection of laws applicable to corporations, 138-9. forbids taxation for private purposes, 175. general requisites of, 111-2. guarantees equal protection of laws, 136-8. impaired by exclusion from jury service, 129-30, impaired by fraudulent decision, 125-6, indictment by grand jury not essential to, 113-4, in matters over which government has absolute control, 121-2. judicial tribunal not necessary for, 122-4. jurisdiction as affecting, 112-3. liberty as protected by, 133-5. not inconsistent with erroneous decision, 125, notice, kind of, requisite for, 124-5, procedure according to settled usage, valid, 115-7. procedure giving notice and fair hearing, valid, 113-5. retroactive laws, when inconsistent with, 153-5. service of process as affecting, 112-3. .^' CONSTITUTIONAL LAW 431 DUTIES (See Tonnage Duties), on exports, forbidden, 280. on imports, forbidden to states, 274-5. ECONOMIC INTERESTS— whether superior to obligation of contract, 242. EDUCATION— compulsory, 145. EIGHT-HOUR DAY, 37. EIGHTH AMENDMENT (See Federal Constitution). ELECTIONS— to Congress may be regulated by Congress, 77. ELECTORS (See Presidential Electors). ELECTRIC LIGHT COMPANY— (See Public Service Corporations). subject to regulation, 148-50. ELEVATED RAILROAD— abutting owners entitled to compensation for damages by, 212-3. ELEVATION (See Track Elevation). ELEVATOR (See Grain Elevator). ELEVENTH AMENDMENT (See Federal Constitution), EMINENT DOMAIN— casting material on other's property under, 209-10. compensation determined by fair market value, 214-5. compensation for exercise of, in benefits, 215-6. distinguished from various interferences with property, 200-1. exercise in aid of irrigation ditches, 203-4. improvement of navigation does not require exercise of, 211. kinds of property taken under, 206-7. legislative discretion in deciding necessity and scope of, 205-6. meaning of public use in connection with, 201-5. noise does not require exercise of, 210. physical occupation of property under, 208-9. pollution of atmosphere does not require exercise of, 210-11, power of and guaranties respecting, 199-200. preliminary surveys before compensation, 216-7. procedure for, required by due process of law, 121. procedure of, determined by statute, 218. requires payment of compensation, 199-200. statutory liability for damaging property under, 217. what amounts to a taking of property under, 207-8. whether exercise of requisite for changes in public streets, 211-4. 482 INDEX EMPLOYERS LIABILITY Ad- as applied to interstate commerce, 303. GMPLOYMENT AGENCY— tax ou business of, 295. ENEMIES {See PuBUC Enemies). ENGINEER— excluded from jury service, 130. ENGLISH CONSTITUTION— what is, 3-4. EQUAL PROTECTION OF LAWS— how far applicable to corporations, 138-9. meaning of, 136-8. EQUALITY— of states (See States). ERIE CANAI^- subject to federal jurisdiction, 306. ESTHETIC PURPOSES— exercise of eminent domain for, valid, 205. exercise of police power in aid of, invalid, 143-4. EVIDENCE- documentary (See Documentaey Evidence). prima facie rules of, 157. EXCESSIVE BAIL AND FINES— forbidden by constitution, 107. EXCISE TAXES— independent of value of articles taxed, 196. EXCLUSIVE JURISDICTION— of federal courts (See Federal Coubts), EXCLUSIVE POWERS (See Fedebal Powers). EXECUTIVE— action of, cannot be compelled by courts. 42-3. EXEMPTIONS— from taxation (See Taxation). EXPATRIATED PERSONS— not citizens, 72. EXPATRIATION (See Expatriated Persons). EXPORT TAXES— within constitutional prohibition, interpreted, 318. EXPORTS— duties on, forbidden, 280. prohibition of tax on, consistent with reasonable state inspection, 281-2. CONSTITUTIONAL LAW 433 EXPORTS— Continued. what constitutes a tax upon, 280-1. within proliibitiou of duty upon, signify foreign, 280. EX POST FACTO LAWS— changes in procedure not within prohibition against, 95-6. early definition of, 92-4. later definition of, 94. mitigating statutes not open to constitutional objection, 94-5. retroactive qualifications for profession, not prohibited unless un- reasonable, 96-9. EXPRESS COMPANIES— imposition of conditions by state on interstate business of, 298. property of, where taxable, 161-2. FAIR HEARING— essential to due process, 113-5. FARMER— appropriation from taxes to purchase grain for, in adversity, 183. FEDERAL CONSTITUTION— adoption of, 11-12. amendment of, 15. amendments I to X, 53-4. bill of rights in, 53-4. changes effected in suffrage by Fourteenth and Fifteenth amend- ments, 7S-9. divides governmental jwwers between states and nation, 6. division of powers between state and nation, 25-6. Eighth Amendment, 107. Eleventh Amendment, 366. Fifteenth Amendment, 66. Fifth Amendment. 99-100, 106. Fourteenth Amendment, 57-65, 68-70. adoption of, 57-8. analysis of, 58-9. effect of, upon citzenship, 68-70. enforcement of, 43. forbids state action only, 59-61. purpose of, 57-8. what amounts to state action, 61-2. what are privileges and immunities of citizens of the United States, 62-5. judiciary article of, applicable to states only, 266-7. 434 INDEX FEDERAL CONSTITUTION— Continued. not applicable to foreign territory temporarily occupied, 270-1. not applicable to trials by consuls in foreign territory, 271. original provisions of, concerning suffrage, 76-8. prohibitions upon states before 1865, 54-6. provisions of, for naturalization, 74-6. text of, 392-408. Thirteenth Amendment, 56-7. FEDERAL COURTS— agreements not to remove suits into, unenforceable, 150. Circuit Courts, 352. Circuit Courts of Appeal, 352. District Courts, 352. '., exclusive and concuiTent jurisdiction of, 354. : jurisdiction of suits between states, 359-60. jurisdiction of suits between states and United States, 360. law applied by, 361-5. maritime power of, 305-6. organization of, 352-3. «, original and appellate jurisdiction of, 353-4, suits against states not cognizable in, 365-8. .f. Supreme Court, 352-3. .'i transfer of cases to, from state courts, 354-7. -. after trial, 356-7. before trial, 354-6. what constitute federal questions within jurisdiction of, 357-8. FEDERAL FUNCTIONS— interference of states with, 345-7. FEDERAL GOVERNMENT— a government of limited powers, 26-7. laws of, superior to state laws, 27-8. nature of, 26-7. participation of states in, 345. r>ower over naturalization, 74-5. FEDERAL POWERS— j as affected by reserved powers of states, 257-8. ;v exclusive and concurrent, 354-5, 254-5. '; implied, 251-4. '/ from groups of other powers, 253-4. * may be exercised for what purposes, 255-7. '^ military power, 329-34. v- of taxation, 317-20. '-Y over aliens, 324-6. }■ over bankruptcy, 320. i CONSTITUTIONAL LAW 435 FEDERAL POWERS— Continued. over copyright and patent, 321-2. over federal districts within states, 328-9. over Indians, 323-4. over maritime offenses and offenses against the law of nations, 322-3. over money and banking, 308-16. over weights and measures, 320. postal power, 320-1. prohibitions upon exercise of, 257. strict V. liberal construction of, 249-51. to make treaties, 326-8. FEDERAL QUESTIONS— meaning of, as warranting consideration by federal courts, 357-8. FEDERAL SYSTEM— provisions regulating intergovernmental relations under, in consti- tutions, 52. FELONY— person accused of, may not waive jury trial, 105. FIFTEENTH AMENDMENT (See Federal Constitution). FIFTH AMENDMENT (See Federal Constitution). FIREMEN— taxation for pensions of, 183. FIREWORKS— keeping of, may be forbidden, 201. FLETCHER v. PECK— case cited, 222-4. FOREIGN COMMERCE— power of Congress over, paramount, 302-4. FOREIGN PUBLIC VESSELS— children born on, not citizens, 71. FORESTS— conservation of, 151. FORM OF GOVERNMENT (See Government). FOURTEENTH AMENDMENT (See Federal Constitution). FRAME OF GOVERNMENT— provisions for, in constitutions, 50. FRANCHISE— of corporation engaged in interstate commerce, taxable by state, 293-5. taken under eminent domain, 206-7. where taxable, 167-9. FRAUD— in decision, impairs due process of law. 125-6. protection against, 146. 486 INDEX FREEDOM OF SPEECH AND PRESS— Congress may not abridge, 83-4. "FRONT-FOOT RULE"— in local assessments, 189-90. FUGITIVE SLAVES— provision for return of, 343. FUNCTIONS (Sec Govebnmental Functions). FUTURE DELIVERY— sale of stock for, 137. GAME— state statute forbidding possession of dead, during season, held valid, 300-1. GARNISHMENTS— service of process in, 113. GAS COMPANY (See Public Service Cobpobations). subject to regulation, 148-50. GIBBONS V. OGDEN— cited and explained, 249-51, 283. "GOLD CONTRACTS"— constitutionality of state statutes forbidding, 312. GOVERNMENT— (See CoNSTiTUTioNAi, Law). (See Depabtments of Government). (See Federal Government), (See Frame of Government). (See Republican Form of Government). form of. prescribed by constitutions, 6. GOVERNMENT NOTES— as legal tender, 312-6. GOVERNMENTAL FUNCTIONS— support of, by taxation, 173-5. GOVERNMENTAL POWERS— cannot be impaired by contract, 242-3. "GRANDFATHER CLAUSE"— explained, 80. GRAIN ELEVATOR^ site for, cannot be acquired by eminent domain, 201. GRAND JURIES— not required in Hawaii or Philippines, 270. provided for in Fifth Amendment of federal constitution, 106. CONSTITUTIONAL LAW 437 GRIST MILLS— taxation for establishmeat of, 178-9. GUARANTIES (See Constitutional Guaranties). HABEAS CORPUS— jurisdiction of Federal courts in matters of, 358-9. power to suspend, under martial law, 333. HAWAII— no constitutional right to grand jury in, 270. no constitutional right to trial by jury in, 270. whether birth in, confers federal citizenship, 69. HEALTH (See Public Health). HEARING— (See Fair Hearing). how far requisite in eminent domain, 121. HORSE-SHOEING— requirement of license for, held invalid, 144. HOUSE— quartering soldiers in, 334. IMMIGRANTS— law exacting state inspection fees held unconstitutional, 281. IMMUNITIES (See Citizens). IMPAIRMENT OF OBLIGATIONS OF CONTRACTS— certain legislative powers unrestrainable by contract, 238-43. administrative and economic interests, 241-3. public health and safety, 240-1. public morals, 238-40. constitutional prohibitions against, 219-20. contracts within prohibition of impairment, defined, 221-2. curtailment of funds for payment of municipal bonds as, 230. disappearance of taxing oflScers not preventable, 230-1. impairment of remedies for breach of contract as, 227-9. in case of foreign contracts, 248. in case of foreign suits, 247-8. laws increasing obligation of contract not within prohibition, 248. obligation of contract defined, 225-7. special charter privileges as contracts protected against impair- ment, 233-4. special privileges protected by rule against, strictly construed, 235-7. valid changes in remedies do not constitute, 232-3. what acts of impairment forbidden, 220-1. whether accomplished by abolition of indebted municipality, 231-2. f 438 INDEX IMrORTER— action by, for destruction of Imported goods, 122. state license fee from, invalid, 276-7. IMPORTS— witliin prohibition of states to tax, signify foreign, 276. INCOME TAX— case cited and explained, 47-8. whether a direct tax, 319. whether constitutional if progressive, 197. "INDESTRUCTIBLE UNION OF INDESTRUCTIBLE STATES"— doctrine of, 272. INDIANS— federal jurisdiction of, 323-4. may become citizens, 73. tribal, not citizens, 72-3. INDUSTRY— whether may be exempted from taxation, 181. INFAMOUS CRIME— meaning of, 106. INHERITANCE TAXES— may be progressive, 197. not direct taxes, 319. situs of property for, 169-73. in case of domestic property of non-resident decedent, 171-3. in case of domestic property of resident decedent, 170. in case of foreign property of non-resident decedent, 173. in case of foreign property of resident decedent, 170-1. INJUNCTION— applicable to taking of property without condemnation, 218. right of, to restrain suit on behalf of state, 373-5. INSANE PERSONS— care of, by state, 145. INSPECTION— by states, of imports, not unconstitutional, 281-2. INSURANCE— whether interstate commerce, 287. INSURANCE COMPANIES— subject to stringent regulation, 149-50. INSURANCE POLICIES— held as securities, where taxable, 165-6. INSURRECTION— treatment of, as war, 331. CONSTITUTIONAL LAW. 489 INTERSTATE COMMERCE— {8ee Commerce). (See Reguiation of Commerce). INTERSTATE COMMERCE COMMISSION— power to enforce orders, 18. INTERSTATE RELATIONS— agreements between states, 343-4. extradition and rendition, 343. recognition of public acts, records, and judicial proceedings, 342-3. INVASION— states protected against, 83. IRRIGATION— determination of lands benefited by, 123. exercise of eminent domain in aid of, 203-4. IRRIGATION DISTRICTS— creation of, held valid. 186. JOINT ACTION— to improve property may be compelled, 151-2. JUDGE— function of, in jury trial, 104-5. liability of, for excluding negro from jury, 61-2. of federal courts, tenure of, 351-2. JUDGMENT— interest on, may be reduced by law, 222. JUDICIAL POWERS— cannot be exercised by legislative and administrative bodies, 16-8. JUDICIAL TRIBUNAL— not necessary for due process of law, 122-4. JURIES (See Grand Juries). JURISDICTION— (See Military Jurisdiction). as affecting due process of law, 112-3. of courts of subject matter (See Courts). of courts over parties (See Courts). JURY TRIAL— constitutional right of, not applicable to misdemeanors, 105. definition of, 104. diversities of, in various states, 105-6, function of judge in, 104-5. may be abolished, 115. not essential in Hawaii or Philippines, 270. not essential to condemnation proceedings, 218. 440 INDEX JURY TRIAL— ConUnued. right of, in territories, 266. unanimous verdict as feature of, 104, KINGS— divine right of, 2. LABOR LEGISLATION— validity of, 147. LAND OWNER— may be required to remedy nuisances due to natural conditions, 152-3. LANDS {Sec Public Lands). LAUNDRIES— limit of day's labor in, 141. regulation of, 138. LAW (See Constitdtional Law). LAW OP NATIONS— power of Ck)ngress to prescribe punishment of offences against, 322-3. LAWS— (See Power to Declare Laws Unconstitutional). equal protection of, 136-8. LAWYERS (See Attorney). LEGAL TENDER— government notes as, 312-6. power to make, 311-2. LEGAL TENDER CASES— cases cited and discussed, 314-6. LEGISLATIVE ACT— notice of, not required, 118. LEGISLATIVE DISCRETION— in deciding necessity of exercise of eminent domain, 205-6. in selecting objects of taxation, 191-6. limitations upon, 193-5. LEGISLATURE— action of, cannot be compelled by courts, 42-3. cannot exercise judicial powers, 16-8. discretion of, in selecting objects of taxation, 191-6, limitations upon, 193-5. power of, 20-2. over admission to the bar, 20-1. to appoint officers, 21-2. CONSTITUTIONAL LAW 441 LIBERAL CONSTRUCTION (See Federal Powebs). LIBERTY— (See Religious Libebtt). meaning of, 133-5. LIFE INSURANCE (See Insurance). LIMITATIONS— (See Statute of Limitations). upon legislative discretion in selecting objects of taxation, 193-5. LIQUOR— contracts for sale of, subject to state prohibition, 243. prohibition of, as affected by interstate commerce character of busi- ness, 298-300. under the "Wilson Act," 300. Liquor Dealers — liability for damages caused by intoxication, 152. LITIGATION (See Collusive Litigation). LOCAL ASSESSMENTS— whether property benefited but not assessed is objection, 190. LOCOMOTIVE— liability of, for fire caused by (See Railroad). LOCOMOTIVE ENGINEERS— compulsory examination of for color blindness, 297. LOTTERY— matter of, may be excluded from mails, 255-6. not protected by charter, 238-40. power to forbid the carriage of tickets of, between states, 256. transportation of tickets of, between states, forbidden, 302. LOTTERY ADVERTISEMENTS— circulation of, in mails may be forbidden, 84. MAGNA CHARTA— what is, 132-3. MAIL— may be closed to lotteries, 255-6. may be closed to obscene matter and lottery advertisements, 84. protected against opening, 103. system, administration of, 123. MANDAMUS (See Public Officer). MANUFACTURING- distinguished from commerce, 284* 442 INDEX MARBURY V. MADISON— doctrine of, 34. MARGIN— sale of stock on, 137. MARITIME INSURANCE (See Insubance). MARINERS (See Sailoes). MARITIME JURISDICTION— (See Jurisdiction). admiralty jurisdiction in federal judiciary, 305-6. distinguished from commercial power, 306. ' extent of grant of, to Congress, 306-7. i legislative as well as judicial, 306-7. | MARITIME OFFENSES— | federal jurisdiction of, 322-3. j MARRIAGE— ,1 within control of state, 222. 1 MARSHAL— ;j not accountable to state courts for homicide In course of duty, 358-ft J MARTIAL LAW— j when declared, 333. i MASSACHUSETTS— | constitution of, 9-10. 5 McCULLOCH V. MARYLAND— J doctrine of, 311. 4 cited, 311. I MEASURES (See Weights and Measuees). MEAT INSPECTION LAWS— validity of, 303. METRIC SYSTEM— use of, permitted by act of Congress, 320. MILITARY JURISDICTION— defined, 332-4. MILITARY POWER— exercise of, during actual hostilities, 330-2. vested in federal government, 329-30. MILITIA— liability of, for federal service, 331. MILK— of less than legal standard, liability for sale of, 156. MINE— limitation of hours of labor in, 37. regulation of labor in, 141. CONSTITUTIONAL LAW 443 MINISTERS— excluded from jury service, 130. MISDEMEANOR— triable without a jury, 105. MONEY— present exclusive federal control of, 316. MONEY AND BANKING— constitutional provisions concerning, 308. MORAL OBLIGATION— taxation to discharge, 181-2. MORALS (See Public Morals). MORTGAGE— legislation concerning, as impairing obligation of contract, 228-9. where subject to taxation, 159-60. MUNICIPAL BONDS— not subject to federal taxation, 319. protected against impairment of obligation of contract, 229-30, MUNICIPAL CORPORATIONS— suits against, 368-9. MUNICIPAL PURPOSES— taxation for, by state, 184-5. MUNICIPAL TAXING DISTRICT (See Taxing Distbict). MUNICIPALITY— abolition of, to avoid payment of debts, 231-2. NATIONAL BANK- power of Congress to charter, 251-3. "NATIONALS"— term for inhabitants of ceded Spanish colonies, 73-4. NATIONS (-Sfee Law of Nations). NATURALIZATION— collective, 75. exclusive power of federal government over, 74-5. to what persons permitted, 74-5. NAVIGABLE WATERS— jurisdiction of, in federal courts, 305-6. NAVIGATION— improvement of, not taking of property, 211. NECESSARY— signification of, in connection with implied federal powers, 252-3. S— 30 444 INDEX NEGRO— accused not entitled to have negro on jury, 130. methods of excluding from suffrage in some states, 79-80. NEUTRAL STATES {Sec States). NEW STATES— additional limitation upon powers of, whether valid, 272-3. admission of, into Union, 271-2. NON-JUDICIAL POWERS— cannot be conferred on courts, 18-9. NOTES— {See Bank Notes). {See Government Notes). where taxable, 164. NOTICE— by publication, 125. essential to due process, 113-5. how far essential to taxation, 120-1. kind of, required by due process of law, 124-5. OBJECTS— of taxation, in general, 184. OBLIGATIONS— {See Impairment of Obuqations of Contracts). {See Moral Obligation). OBSCENE MATTER— circulation of, in mails, may be forbidden, 84. OCCUPATION— power to license, 144. OFFICER— (See Administrative). (See Appointment of Officers). (See Public Officer). remedy for violation of Fourteenth Amendment by, 61-2. state, basis of liability of, for illegal acts, 373. state, suits against, 370-2. whether protected by unconstitutional act, 46-7. OFFICIAL ACTS— illegal, suits to prevent, 371-2. personal liability of officers for, when illegal, 370-1. suits to compel, 372. OLEOMARGARINE— prohibition of sale of, in imitation of butter, constitutional, 300. prohibitive taxes upon artificially colored, 256. CONSTITUTIONAL LAW 445 OLEOMARGARINE— Continued. whether sale of may be forbidden, 141, 156. OPPRESSION— protection against, 146-8. ORDER, PUBLIC— protected by police power, 143. ORDINANCE OF 1787— history of, 8. ORIGINAL JURISDICTION— of federal courts (See Fedebal Courts). "ORIGINAL PACKAGE"— doctrine of, 277-80. refers to packages used in wholesale trade, 278-80. PARCEL BUSINESS— power of Congress to assume, 321. PARLIAMENT— absolute power of, 31. double function of, 4. power of, 3. PARSON (See Ministebs). PARTY WALLS— contribution to expense of, 152. PEACEFUL REVOLUTION— amendment of constitutions by, 14-5. PEDDLER— subject to state taxation on sale of interstate goods, 292. PENSIONS— supported by taxation, 183. PEONAGE— constitutes slavery, 89. PHILIPPINE ISLANDS— no constitutional right to grand jury in, 270. no constitutional right to trial by jury in, 270. status of, 264. whether birth in, confers federal citizenship, 69. PHYSICIAN— requirement of residence for license, 342. PIRACY- power of Congress over, 322. POLICE POWER— applicable to business affected with a public interest, 148-50. 446 INDEX rOLlCF: POWER— Oontiiuied. as aCFecting; etouomic interests, 145-55. control of domestic relations under, 144-5. exercise of, for protei-tiou of public health, 140-1, exercise of, for protection of public safety, 143. exercise of, for public order and comfort, 143-4. exercise of, to protect public morals, 141-3. licensing occupations under, 144. may comi)el joint action to improve property, 151-2. may not be used for esthetic purposes, 143-4. subjects of, 140. POLITICAL ACTS— power to declare laws unconstitutional does not extend to, 40-2. POLL TAX— not dependent on income of person taxed, 106. POLLUTION OF ATMOSPHERE (See Atmosphebe). PORTO RICO— status of, 264, whether birth in, confers federal citizenship, 69. POSTAL po^\t:rs— scope of, 320-1. POWER— (See Fedeeal Powees). (See Judicial Powebs). (See NoN- Judicial Powees). (See Police Power). of federal government, limited, 26-7. to annex territory, 259-60. POWER TO DECLARE LAWS UNCONSTITUTIONAL— administrative regulations of, 44-6. cannot be exercised where laws merely un'nase, 43-4. colonial practice, 32-3. early American decisions, 33-4. not applicable to political acts, 40-2. reason for vesting in courts, 35-6, should be exercised only in actual litigation, 39-40. strictly judicial in nature, 36. to be exercised only where unconstitutionality clear, 36-9. where vested, 29-36. American doctrine, 32-6. English doctrine, 31. European doctrine, 29-31. PREMIUMS— laws against, invalid, 146. CONSTITUTIONAL LA^ 447 PRESIDENTIAL ELECTORS— regulation of election of, 77-8. PRIEST (See Ministees). PRIVATE ENTERPRISE— supplemented by taxation, 177-80. PRIVATE RIGHTS— provisions guaranteeing, in constitutions, 50-1. PRIVILEGES (See Chaktee Peivileges). PRIVILEGES AND IMMUNITIES (See Citizens). PROCEDURE— (See Due Peocess of Law). changes in, valid though ex post facto, 95-6. requisites of due process in, 111-2. PROCESS- (See Due Peocess of Law). service of, how effected, 112-3. PROFESSION— validity of retroactive qualifications for, when ex i>ost facto, 96-9. PROGRESSIVE TAXATION— (See iNHEBiTANCE TAXES; Income Tax; Taxation). PROHIBITION— (See Constitutional Peohibitions). of manufacture or sale of liquor, constitutional, 142. PROPERTY— (See Depeivation of Peopeety). documentary evidence of, where taxable, 164-5, joint action to improve, may be compelled, 151-2. kinds of, taken under eminent domain, 206-7. regulation of ownership of, 150-1. special liabilities due to natural condition of, 153. taking of (See Taking of Peopeety). what is a taking of, under eminent domain, 207-8. PROPERTY QUALIFICATIONS— for suffrage, abolished, 78-9. PROSTITUTES— alien, power to forbid harboring, 258. PROTECTION— against fraud, 146. against oppression, 146-8. PROTECTION OF LAWS (See Equal Protection of Laws). 448 INDEX PROTECTION TO PERSONS ACCUSED OF CRIME (See OoNSTiTiT- TioNAL Law). PROTECTIVE TARIFF— not rendered Invalid by benefits to private business, 181. PUBLIC— Interest in private contracts as authorizing legislation concerning, 243-4. PUBLICATION— notice by, 125. PUBLIC ENEMIES— children of, born in United States, not citizens, 71-2. PUBLIC HEALTH— protection of. under police power, 140-1. regulation of, not restrainable by contract, 240-1. PUBLIC LANDS— administration of, 123. PUBLIC MORALS— protected by police power, 141-3. regulation of, not restrainable by contract, 238-40. PUBLIC OFFICER— taxation for pensions of, 183. PUBLIC SAFETY— protected by police power, 143. regulation of, not restrainable by contract, 241. PUBLIC SERVICE CORPORATION? basis of fixing rates of, 149. subject to regulation, 148-50. PUBLIC USE— as affecting right of eminent domain, 201-5. PUBLIC VESSELS (See Foreign Public Vessels). PUNISHMENT— (See Cbuel and Unusual Punishment). mitigation of, valid, though ex post facto, 93, 94-5. PURE FOOD LAWS— legislation concerning, 303. QUARTERING SOLDIERS {See Soldiebs). RAILROAD— (See Public Service Corporations). {See Street Railroad). CONSTITUTIONAL LAW 449 RAILROAD— Continued. how far subject to state regulation in service and other matters, 297. liability for fire from locomotives, 152. rates of, how far subject to state regulation, 295-7. whether construction of, justifiable under postal powers, 321. RAILROAD EMPLOYEES— liability of, for accident in internal commerce of states, 258. RAILWAY COMMISSION— cannot prevent appeal to courts on reasonableness of rates, 126-8. REFRIGERATOR COMPANY— cars of, where subject to taxation, 160. REGULATION— of corporations, 150. of ownership of property, 150-1. of public service corporations {See Public Sebvice Corporations). REGULATION OF COMMERCE— distinguished from maritime power, 306. historical outline of, 274. interstate commerce defined, 285-6. limitation on interstate commerce by states, invalid, 297-8. period of commercial transit, subject to, 286-7. power of Congress over interstate and foreign commerce paramount, 302-4. power of Congress to enlarge field of state action, 304. reasonable toll for use of improvements, valid, 293. state discrimination against interstate or foreign commerce, invalid, 289-90. state duties on imports prohibited, 274-5. state regulations affecting interstate commerce indirectly, valid, 301. state taxation as condition of engaging in interstate commerce, in- valid, 292-3. state taxes indirectly affecting interstate commerce, valid, 295. state taxes upon interstate transportation, invalid, 290-1. state taxes upon property engaged in interstate commerce, constitu- tional, 292. state taxes upon sales in state, constitutional, 291-2. taxation of franchise by states, not prohibited, 293-5. transit across state line, essential to interstate commerce, 287. transportation how far subject to regulation by states, 295-7. REGULATION OF COMMERCE— Continued. regulation not hampering interstate commerce, 297. whether federal power of, exclusive, 287-9. 450 IXDEX RELIGIOUS LIBERTY— scope of term, 90. REPUBLICAN FORM OF GOVERNMENT— guaranteed to states, 83. REPUDIATION— of state debts, 3G6-7, RESERVED POWERS OF STATES (See States). RESTRAINT OF TRADE— {Sec Combinations in Restraint of Tbade). RETROACTIVE LAWS— when inconsistent with due process of law, 153-5. REVENUE COLLECTOR— property of, subject to seizure for debt to government, 116. REVOCATION— of corporate charters authorized by constitutions, 244-5. RIGHT— (See Bill of Rights). of assemblage and petition guaranteed by Congress, 84. RULES OP EVIDENCE— prima facie, 157. SAILORS— compulsory i)erformance of contract of service not slavery, 87-8. taxation for pensions of, 183. SAVINGS BANKS (See Banks). SEARCHES (See Uneeasonable Seabches and Seizubes). SEGREGATION— of vice, 142-3. SEIZURES (-Sfee Uneeasonable Seabches and Seizubes). SELF-INCRIMINATION— extent of privilege against, 99-100. not forbidden by due process of law, 128. privilege against, gives immunity only in immediate jurisdiction, 101. privilege against, purely personal, 100. protects only against criminal prosecution, 100-1. SEPARATION OF DEPARTMENTS OF GOVERNMENT— (See Constitutional Law). not requisite for due process of law, 122-3. SET-OFF— available as defense to suit brought by state, 369. CONSTITUTIONAL LAW 451 SETTLEMENT— act of, 4. SIDEWALK— abutting owner liable for expense of, 190-1. SITUS— of property, for inheritance taxes, 169-73. (See Inheritance Taxes). of property for purpose of taxation, 158-9. SLAUGHTER-HOUSE CASES— limiting and explaining Fourteenth Amendment, 63-5. SLAUGHTERING— (See Cattle). regulation of, not restrainable by contract, 240-1. SLAVERY— (See Fugitive Siaves). history of, in United States, 86-7. what constitntes, 87-90. compulsory service to discharge debt, 88-9. imprisonment for breach of labor contract, 89-90. SOLDIERS— quartering, In private houses, 334. taxation for pensions of, 183. SOVEREIGNTY— of federal government in territories, 260-1. political, not accountable to individuals, 365-6. SPANISH CESSIONS— status of, 264. SPANISH COLONIES OF UNITED STATES— status of native inhabitants of, 73-4. SPECIAL ASSESSMENTS (See Local Assessments). STATE BONDS— not subject to federal taxation, 319. STATE CONSTITUTIONS— (See Constitution). bill of rights in, 53. STATE LAWS— inferior to laws of federal government, 27-8. STATES— (See New States). (See State Constitutions). action of, subject to limitation of Fourteenth Amendment, 61-5. 452 INDEX STATES — Continued. construction of statutes of, by courts of, followed by federal courts, 364-5. control of corporations by. 138-9. discrimiuation by, against citizens of other states, forbidden, 338. discrimination by, against interstate or foreign commerce, invalid, 2S9-90. diversities of jury trial in, 105-0. effect upon, of Fourteenth Amendment, 58-9. enjoining suit on behalf of, 373-5. federal power over federal districts within, 328-9. federal prohibitions upon, before 1865, 54-6. forbidden to levy tonnage duties, 282-3. general theory of powers of, 22-3. governmental functions of, not subject to federal taxation, 319. guaranteed republican form of government, 83. interference by, with exercise of federal rights, unconstitutional, 347. interference of, with federal functions, 345-6. interpretation of common law by, followed by federal courts, 362-3. legislation of, affecting federal functions remotely, not invalid, 347. legislation of, affecting interstate commerce (See Regulation of Commebce). limitations of, upon suffrage, 79-81. may give own citizens benefit of proprietary interest, 338-9. participation of, in federal government, 345. power in reference to legal tender, 311-2. powers of governments of, before 1789, 23-5. powers of, under federal constitution, 25-6. privileges of citizens of, in other states, 335-6. prohibited from levying duties on imports, 274-5. protected against invasion and domestic violence, 83. relations between, 335-44. relation of, to United States, 344-8. reserved powers of, 257-8. stand to each other in relation of foreign countries, 335. suffrage in (See Suffeaqe). suits against, by own citizens, forbidden, 369-70. suits against, not cognizable in federal courts, 365-6. suits between, 359-60. suits between states and United States, 360. suits between, upon bond debts, 367-8. taxation by, of federal agencies or property, 346. STATUTE— Interpretation of, by courts of enacting states, followed by federal courts, 364-5. •i CONSTITUTIONAL LAW 453 STATUTE OF LIMITATIONS— action barred by, cannot be revived by statute, 154-5. STAY LAWS— unconstitutional as impairing obligation of contracts, 228. STOCK— sale of, on margin, 137. shares of, where taxable, 166-7. where taxable on death of owner, 172. STORE ORDERS— payment in, may be forbidden, 147. payment of wages in, 37. STREET— changes in, whether taking of property, 211-3. proper use of, 213-4. STREET RAILROAD— (See Public Service Corporations). franchise from city not affected by extension of corporate life of, 237. franchise of, surviving corporate charter, 245-6. regulation by court, 18. STRICT CONSTRUCTION (See Federal Powers). SUFFRAGE— constitutional changes concerning, before Fifteenth Amendment, 78-9. early qualifications for, in the states, 76. not necessary incident of citizenship, 81-2. original provisions of federal constitution concerning, 76-8. relation of limitations of, to congressional representation, 82. requirements for, within control of states, 341. state limitations upon, since Fifteenth Amendment, 79-81. SUGAR GROWERS— may be exempted from taxation upon methods of refining, 195. SUIT— foreign, on contract, 247-8. SURVEYS— before compensation, for exercise of eminent domain, 216-7. TAKING OF PROPERTY— creation of noise does not constitute, 210-11. improvement of navigation does not constitute, 211. under eminent domain, what constitutes, 207-8. whether changes in public streets constitute, 211-4. TAXATION— (See Local Assessments). assessment of, by courts, 22. 454 INDEX TAXATION— Continued. avoidance of, for non-payment of creditors, 230-1. by state, for municipal purposes, 1S4-5. by states of federal agencies or property, unconstitutional, 346. classification of objects of, in general, 184. confiscatory, wbetlier constitutional, 197-8. creation of municipal taxing districts for, 185-8. different liinds of, 191. exemptions from, 180-1. exemption from, contract protected against impairment, 234. federal powers of, 317-8. for demoralizing public benefits, invalid, 175-7. for private purposes, invalid, 175. for public charity, valid, 183. for support of governmental functions, 173-5. inheritance taxes, 169-73. (See Inheritance Taxes). jurisdiction for purpose of, 158-73. legislative discretion in selecting objects of, 191-6. meaning of uniformity, within constitutional requirements, 318. objects of, influenced by historical considerations, 180. of corporate assets affected by location, 160-3. where assests in several states, 161-3. of credits employed in business, 165-6. of debts, 163-4. of documentary evidence of debts or property, as affected by loca- tion, 164-5. of franchises, 167-9, of real estate and chattels, as influenced by location, 159-60. of shares of stock, 166-7. of state governmental functions, 311. procedure for, required by due process of law, 119-21. progressive, whether constitutional, 196-7. situs of property taxed, 158-9. to defray moral obligations, 181-2. to supply needs for which private enterprise is inadequate, 177-80. to support pensions, 183. TAXES— (See Taxation). on imports, what constitutes, 276-7. on exports, what constitutes, 280-1. TAXING DISTRICT— creation of, for special purposes, 185-8. TEACHER— excluded from jury service, 130. i CONSTITUTIOMaL law 455 TELEGRAPH— ageucy of commerce, 284. whether acquisition of, is justifiable under postal powers, 321, TELEGRAPH COMPANY— (See Public Sebvice Cobpoeations). subject to regulation, 148-50. TELEPHONE COMPANY— {See Public Sebvice Cobpoeations). subject to regulation, 148-50. TENDER (See Legal Tendee). TEN-HOUR DAY— for women, valid, 156. TERRITORIES— application in, of constitutional prohibitions, 261-2. constitutional provisions in general, not applicable to unincorporated, 267-70. courts of, 266-7. federal sovereignty in, 260-1. foreign, temporarily occupied, status of, 270-1. implied powers to annex, 259-60. of United States, classification of, 265-6. power to acquire unincorporated, 263-5. western, cession of, to United States, 259. whether birth in, confers federal citizenship, 69. "THE KING CAN DO NO WRONG"— meaning of term, 365. THIRTEENTH AMENDMENT (See Fedebal Constitution). TOLL— for use of improvements in Interstate commerce, valid, 293. TOLL BRIDGE— charter to build, not exclusive, 235-6. TONNAGE DUTIES— by states, forbidden, 282-3. TRACK ELEVATION— may be required, 152. TRADERS— state requirement of licenses for foreign traders, unconstitutional, 338. TRADING STAMPS— law against, invalid, 146. TRANSFER— of cases from state to federal courts, 354-7. 456 INDEX TRANSPORTATION— interstate, state taxes upon, invalid, 290-1. TRANSPORTATION COMPANIES— subject to regulation. 148-50. TREATIES— power to make, 326-8. TRIBAL INDIANS (See Indians). TRIBUNAL {See Judicial Tbibunal). UNCONSTITUTIONAL— (Sec Power to Declare Laws Unconstitutional). act, efifect of, 46-8. where only partially unconstitutional, 47-8. UNDERTAKING— requirement of license for, held invalid, 144. UNIFORMITY— of taxation construed, 318. UNINCORPORATED TERRITORIES {See Tebbitobies ) . UNION (See United States). UNITED STATES— citizens of {See Citizens). different meanings of, 69-70. nature of union of, 344-5. relation of, to states, 344-8. UNITED STATES CONSTITUTION {See Fedebal Constitution). UNIT RULE— in taxation of corporations, 162-9. UNREASONABLE SEARCHES AND SEIZURES— privilege against, applicable to criminal proceedings only, 101-2. privilege against, extends to mails, 102-3. prohibition of, forbids general warrants, 103-4. UNWRITTEN CONSTITUTIONS (-Sfee Constitution). UNWRITTEN LAW {See Law). USAGE— as affecting due process of law, 115-7. as affecting objects of taxation, 180. VERDICT— unanimous, as element of jury trial, 104. VESSELS {See Foreign Public Vessels). VIADUCT— erection of, in street, not actionable, 213. CONSTITUTIONAL LAW 457 VICE— segregation of, 142-3, VISITATION, COURT OF (See Court of Visitation). WAREHOUSE RECEIPTS— where taxable, 165. WARRANT— general, constitutes unreasonable search and seizure, 103-4. WATER COMPANIES— (See Public Service Corporations). subject to regulation, 148-50. WEIGHTS AND MEASURES— power of Congress over, 320. WILSON ACT— constitutionality of, 304. in regard to power of states over imported liquor, 300. WITNESS— confronting, not required by due process of law, 128-d. w. B. c. UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. OCT 2 4 1960 MAY 20 •:i "^^ MAY 3 Form L9-17»t-8.'55 (B333984)444 :^ ■jS-ANGElij. rjA ^^^^^^^^^Bl i5i 1158 00664 9353 F AA 001 182 582 5