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Published online by Cambridge University Press: 02 September 2013
From the historical point of view no more interesting case was decided last term than that of Missouri v. Holland, in which a bill in equity brought by the state of Missouri to prevent a game warden of the United States from attempting to enforce the Migratory Bird Treaty Act of July 3, 1918, and the regulations made by the secretary of agriculture in pursuance of this act was finally dismissed, Justices Van Devanter and Pitney dissenting without opinion.
The objectors to the statute and the underlying treaty based their argument upon the Tenth Amendment, supplemented by the proposition that the control of migratory birds within their respective limits is a power reserved to the states, and from these premises they proceeded to draw the conclusion that “what an act of Congress could not do unaided, in derogation of the powers reserved to the states, a treaty cannot do.” But, Justice Holmes answers in his opinion for the court, the treaty-making power is expressly delegated to the United States, treaties made under the authority of the United States are the supreme law of the land, and by article 1, section 8, Congress may pass all laws necessary and proper to carry valid treaties into effect.
43 252 U. S. 416.
44 The act gives effect to the Treaty of August 16, 1916, between the United States and Great Britain, which pledges this government and the Canadian government reciprocally to protect certain game birds making seasonal migrations from the United States into Canada and vice versa. Earlier than this Congress had, by the Act of March 4, 1913, attempted to extend the protection of the national government over migratory game birds, but the act had been held void by a state and one or two federal courts, passing muster, however, in another. It was before the Supreme Court in Cary v. So. Dak., 250 U. S. 118, but for construction only. See the present writer 14 Michigan Law Review, 613 ff.
45 “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.”
46 Citing Geer v. Conn., 161 U. S. 519.
47 Article 2, section 2, which reads: “He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.”
48 See note 28, supra.
49 “The Congress shall have power … to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.”
50 Citing Andrews v. Andrews, 188 U. S. 14.
51 Among the parts omitted in the above quotation from the opinion is the following striking passage: “We may add that when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago.” Among the cases cited by Justice Holmes to demonstrate that treaties otherwise valid may override state power are Baldwin v. Franks, 120 U. S. 678; Hopkirk v. Bell, 3 Cranch 454; Ware v. Hylton, 3 Dall. 199; Chirac v. Chirac, 2 Wheat. 259; Hauenstein v. Lynham, 100 U. S. 483; Geofroy v. Riggs, 133 U. S. 258; Blythe v. Hinckley, 180 U. S. 333; Wildenhus's Case, 120 U. S. 1.
52 The case has another interesting aspect. “The ground of the bill is that the statute is an unconstitutional interference with the rights reserved to the states by the Tenth Amendment, and that the acts of the defendant, done and threatened under that authority, invade the sovereign right of the state and contravene its will manifested in statutes. The state also alleges a pecuniary interest, as owner of the wild birds within its borders and otherwise, admitted by the government to be sufficient, but it is enough that the bill is a reasonable and proper means to assert the alleged quasi sovereign rights of a state. Kansas v. Colorado, 185 U. S. 125; Georgia v. Tennessee Copper Co. 206 U. S. 230; Marshall Dental Mfg. Co. v. Iowa 226 U. S. 460.” All of which seems to leave very little of the doctrine of “political questions” as applied in Georgia v. Stanton, 6 Wall. 50.
53 253 U. S. 149, decided May 17. The act under review was passed to remedy the effect of Southern P. Co. v. Jensen, 244 U. S. 205. See ProfessorPowell's, review of the latter case in 12 American Political Science Review, 43.Google Scholar
54 Citing the Lottawanna, 21 Wall. 558. All that the Constitution says is that “the judicial power shall extend … to all cases of admiralty and maritime jurisdiction,” article 3, section 2. See also note 49, supra.
55 Justice McReynolds evidently recognizes the force of this presumption and endeavors to meet it in the following words: “Neither branch of Congress devoted much debate to the act under consideration—altogether, less than two pages of the Record (65th Cong., pp. 7605, 7843). The Judiciary Committee of the House made no report; but a brief one by the Senate Judiciary Committee, copied below, probably indicates the general legislative purpose. And with this and accompanying circumstances, the words must be read.” This is a novel type of argument for this kind of case, though, in view of the flexibility of the modera test of “delegation of legislative power,” it may be necessary and valid.
56 242 U. S. 311. See also ProfessorPowell's, review of the case in 12 American Political Science Review, 19 ff.Google Scholar
57 The leading case is United States v. Grimaud, 220 U. S. 506. None of the sweeping delegations of power by Congress to the President during the war have been disturbed by judicial decision. Cf. Fairlie, on “Administrative Legislation,” in Michigan Law Review, January, 1920.CrossRefGoogle Scholar
58 Justice Holmes makes the point in his dissenting opinion, that the act might have been easily construed so as to avoid the argument against delegation of legislative power, by confining the words “rights and remedies under the Workmen's Compensation Law of any state” to refer solely to laws existing at the time of the passage of the act of Congress. The origin of the argument which Justice Holmes thus endeavors to meet is to be found in Justice Curtis's opinion in Cooley v. Board of Wardens, 12 How. 299. It may be suggested that, as Congress's legislative powers develop, it will be increasingly necessary for it to take account of local differences and necessities.
59 The Fourth, Fifth and Sixth Amendments are the ones involved. The first reads thus: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”
Amendment Five reads thus: “No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”
The words of the Sixth Amendment are as follows: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
60 United States v. Thompson, 251 U. S. 407.
61 Stilson v. United States, 250 U. S. 583.
62 Stroud v. United States, 251 U. S. 15.
63 Ibid.
64 251 U. S. 385.
65 Said Justice Holmes, of the Government's endeavor to avail itself of knowledge obtained by illegal means: “The proposition could not be presented more nakedly‥‥ It reduces the Fourth Amendment to a form of words.” The case should be collated with Adams v. New York, 192 U. S. 585 and Weeks v. United States, 232 U. S. 383. See also Flagg v. United States, 147 C. C. A. 367, 233 Fed. 481, which is cited by Justice Holmes with approval. In the instant case the Chief Justice and Justice Pitney dissented.
66 The Seventh Amendment, which is here involved, reads: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no trial by a jury, shall be otherwise reëxamined in any court of the United States, than according to the rules of the common law.”
67 Re Walter Peterson, 253 U. S. 300. There were three dissents.
68 Fidelity Title and Trust Co. v. Dubois Electric Co., 253 U. S. 212. The decision is principally interesting as showing that Slocum v. N. Y. Life Ins. Co., 228 U. S. 364, now has the approval of the entire court.
69 Kwock Jan Fat v. White, 253 U. S. 454, decided June 7. A closing paragraph of Justice Clarke's opinion for the unanimous court deserves quotation: “The Acts of Congress give great power to the Secretary of Labor over Chinese immigrants and persons of Chinese descent. It is a power to be administered, not arbitrarily and secretly, but fairly and openly, under the restraints of the tradition and principles of free government applicable where the fundamental rights of men are involved, regardless of their origin or race. It is the province of the courts, in proceedings for review, within the limits amply defined in the cases cited, to prevent abuse of this extraordinary power, and this is possible only when a full record is preserved of the essentials on which the executive officers proceed to judgment. For failure to preserve such a record for the information, not less of the commissioner of immigration and of the Secretary of Labor than for the courts, the judgment in this case must be reversed. It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country.” The practice indicated in Chin Yow v. United States, 208 U. S. 8, is specifically “approved and adopted.”
70 White v. Chin Fong, 253 U. S. 90. On the rights of resident aliens see further United States v. Wong Kim Ark, 169 U. S. 649.
71 252 U. S. 376.
72 Houston v. Ormes, 252 U. S. 469, decided April 19, in which it was held that a suit against treasury officials to establish an equitable lien upon a fund appropriated by Congress for payment to a specified person is not a suit against the United States, being one to compel the performance of a ministerial duty; and United States ex rel. Alaska Smokeless Coal Co. v. Lane, 250 U. S. 549, in which the court refused a mandamus to the secretary of the interior to compel him to approve and pass applications for certain Alaska coal claims.
73 United States v. Osage County, 251 U. S. 128. See in the same connection Heckman v. United States, 224 U. S. 413.
74 Burnap v. United States, 252 U. S. 512, citing ex parte Hennen, 13 Pet. 230, and other familiar precedents.
75 253 U. S. 330.
76 253 U. S. 170.
77 Public Utility Comrs. v. Yuchausti and Co., 251 U. S. 401.
78 253 U. S. 421.
79 Justice Brandeis cites the power vested in the Interstate Commerce Commission to determine whether a preference granted by a railroad to a shipper or locality falls within the prohibition of “undue preferences.” See Pennsylvania Co. v. United States, 236 U. S. 361.
80 U. S. v. U. S. Steel Corporation, 251 U. S. 417, and U. S. v. Reading Co., 253 U. S. 26. The decision in the earlier case was rendered by only four justices, Justices McReynolds and Brandeis not participating and Justices Day, Pitney and Clarke dissenting. In the Reading case the Chief Justice and Justices Holmes and Van Devanter dissented. Justice McKenna, who wrote the opinion in the Steel Corporation case, has thus the distinction of being the only member of the court to approve of both decisions. A third case arising under the act was U. S. v. Shrader's Sons, 252 U. S. 85, in which it was held that agreements to control resale prices violate the act, but that a manufacturer may nevertheless, refuse to deal with one who has failed to follow resale prices specified by him. The decision thus embraces in one holding Miles Medical Co. v. Park and Sons, 220 U. S. 373, and U. S. v. Colgate Co., 250 U. S. 300.
81 Strathearn S. S. Co. v. Dillon, 252 U. S. 348.
82 Fort Smith and W. R. Co. v. Mills, 253 U. S. 206. The agreement in question was between the receiver of an insolvent road and employees.
83 The passage is as follows: “In Wilson v. New, 243 U. S. 332, 61 L. ed. 755, L.R.A. 1917E, 938, 37 Sup. Ct. Rep. 298, Ann. Cas. 1918A, 1024, it was decided that the act was within the constitutional power of Congress to regulate commerce among the states; that since, by virtue of the organic interdependence of different parts of the Union, not only comfort but life would be endangered on a large scale if interstate railroad traffic suddenly stopped, Congress could meet the danger of such a stoppage by legislation, and that, in view of the public interest, the mere fact that it required an expenditure to tide the country over the trouble would not, of itself alone, show a taking of property without due process of law. It was held that these principles applied no less when the emergency was caused by the combined action of men than when it was due to a catastrophe of nature; and that the expenditure required was not necessarily unconstitutional because it took the form of requiring the railroads to pay more, as it might have required the men to take less, during the short time necessary for an investigation ordered by the law.”
84 The cases are as follows: Southern P. Co. v. Industrial Accident Commission, 251 U. S. 259: The work of an electric lineman in wiping insulators on one of the main electric cables of an interstate railway carrier was so directly connected with interstate commerce as to render the state law inapplicable. Philadelphia and Reading Railway Company v. Hancock, 253 U. S.: A member of a train crew operating a train of loaded coal cars from colliery to freight yard, both within the state was engaged in interstate commerce within the meaning of the federal act, although his duties never took him outside the state, it being shown that the ultimate destination of some of the cars was a point outside the state. Erie Railroad Company v. Collins, 253 U. S. 77: An employee of an interstate railway was engaged in interstate commerce within the meaning of the federal act, while starting the gasoline engine at a pumping station, which engine was used to pump water to be supplied to locomotives in whatever commerce engaged. Erie Railroad Company v. Szary, 253 U. S. 86: An employee of an interstate railway was engaged in interstate commerce within the meaning of the federal act when, having sanded the last of a series of locomotives and carried the ashes from the drying stove to the ashpit across the tracks, he was struck by a passing locomotive while on the way to get a drink of water.
85 Ash Sheep Co. v. United States, 252 U. S. 159.
86 253 U. S. 233.
87 The doctrine of “public purpose” was introduced into the jurisprudence of the Supreme Court by Justice Miller, who brought it from Iowa, and was originally based on “general principles.” See Loan Asso. v. Topeka, 20 Wall. 665. Later it was based on the “due process” clause of the Fourteenth Amendment: Fallbrook Irrig. Dist. v. Bradley, 164 U. S. 155. The instant case was preceded by Jones v. Portland, 245 U. S. 217, where the court sustained an act of the state of Maine authorizing the establishment of municipal fuel yards.
88 Article 4, section 2, says: “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”
89 250 U. S. 525.
90 251 U. S. 552.
91 Amendment Fourteen, section 1, reads, in part, as follows: “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.” These clauses were also invoked in the cases just reviewed in connection with article 4, section 2.
92 252 U. S. 60.
93 Ft. Smith and W. R. Co. v. Ark., 251 U. S. 532. Four justices dissented, without opinion.
94 Cream of Wheat Co. v. Grand Forks County (No. Dak.), 253 U. S. 325. The decision should be compared with Union Refrigerator Transit Co. v. Ky., 199 U. S. 194.
95 Maguire v. Trefrey, 253 U. S. 12.
96 Royster Guano Co. v. Va., 253 U. S. 412.
97 253 U. S. 66. The headnote of the case furnishes us the important details: “A state may not, consistently with the commerce and due process of law clauses of the Federal Constitution, fix the value of the property of foreign interstate railway companies for the purpose of levying a special excise tax upon the doing of business in the state by taking the total value of the stock and bonds of each railway company and assessing the proportion of this value that the main track mileage bears to the main track of the whole line, where, by reason of topographical conditions, the cost of the lines in that state was much less than in other states, and the great and very valuable terminals of the railways are in other states, and where the valuations as made include such items as bonds secured by mortgage of lands in other states, a land grant in another state, and other property that adds to the riches of the corporation, but does not affect that part of the railway in the state.”
98 For other cases dealing with the taxing power of the states, see (v), just below.
99 Ohio Valley Water Co. v. Ben Avon Borough et al. 253 U. S. 287. The principal cases cited for the decision were Missouri P. R. Co. v. Tucker, 230 U. S. 340, and Wadley So. R. Co. v. Ga., 235 U. S. 651. The dissenting opinion of Justice Brandeis, for himself and Justices Holmes and Clarke, is based on the different rule which obtains for the findings of the interstate commerce commission. See Interstate Com. Comsn. v. Union P. R. Co., 222 U. S. 531. In Oklahoma Operating Co. v. Love, 252 U. S. 331, decided March 22, a rate enforcing penalty clause was set aside, on the basis of Ex parte Young, 209 U. S. 123. The decision was unanimous.
100 Groesbeck v. Duluth, S. S. and A. R. Co., 250 U. S. 607.
101 Great Northern R. Co. v. Cahill, 253 U. S. 71, decided on the basis of Great Northern R. Co. v. Minn., 238 U. S. 340.
102 Brooks Scanlon Co. v. R. R. Comsn., 251 U. S. 560, citing particularly Northern P. R. Co. v. No. Dak., 236 U. S. 585.
103 Hays v. Seattle, 251 U. S. 233.
104 Los Angeles v. Los Angeles Gas and E. Corp., 251 U. S. 32. The case should be compared with Hardin-Wyandot Lighting Co. v. Upper Sandusky, ibid., 173. For the origin of the distinction here made between different branches. of the police power, see New Orleans Gas Co. v. La. Light Co., 115 U. S. 650.
105 Chicago, R. I., and P. R. Co. v. Cole, 251 U. S. 54.
106 New York C. R. Co. v. Bianc, 250 U. S. 596.
107 MoCloskey v. Tobin, Sheriff (Texas), 252 U. S. 107. As Justice Brandeis remarks in his opinion, “The evil against which the regulation is directed is one from which English law has long sought to protect the community through proceedings for barratry and champerty.”
108 Bragg v. Meaner, 251 U. S. 57.
109 Branson v. Bush, 251 U. S. 182; Farncomb v. Denver, 252 U. S. 7; Goldsmith v. Prendergast Construction Co., ibid., 12.—In Sullivan v. Shreveport, 251 U. S. 169, a municipal ordinance requiring street cars to be operated by both motorman and conductor during certain hours of the day was sustained. In Dunbar v. New York, ibid., 516, a provision of the municipal charters imposing a lien on landlord's premises for water supplied by city to tenant was upheld.
110 Wagner v. Covington, 251 U. S. 95, citing Brown v. Houston, 114 U. S. 622.
111 Askren v. Continental Oil Co., and accompanying cases, 252 U. S. 444. The decision cites Standard Oil Co. v. Graves, 249 U. S. 389, where an act of California was set aside as not an inspection law.
112 South Covington and C. Street R. Co. v. Ky., 252 U. S. 399.
113 Pennsylvania Gas Co. v. Public Serv. Comsn., 252 U. S. 23.
114 Pennsylvania R. Co. v. Public Serv. Comsn., 250 U. S. 566 (State cannot regulate the use of caboose cars and mail cars, as end cars, the interstate commerce commission having done so); Postal-Teleg. Cable Co. v. Warren-Goodwin Lumber Co., 251 U. S. 27 (State cannot invalidate contract limiting liability of telegraph company for error in sending unrepeated interstate message, Congress having occupied the field by the Act of June 18, 1910). See also note 84, supra.
115 Bank of Oxford v. Love, 250 U. S. 605: The state has the right to provide for reasonable bank examination by state officers of a bank which has the power under its charter to make rules not in conflict with the Constitution of the United States or of the state. Oklahoma R. Co. v. Severns Paving Co., 251 U. S. 104: A company which is obliged by its charter to pay for the paving of certain portions of the streets occupied by it may also be assessed by the municipality for other paving costs for benefits received. Pacific Gas and Electric Co. v. Sacramento, 251 U. S. 22: A street railway company may be required to sprinkle the surface of the streets occupied by its lines between the rails and tracks and for a sufficient distance beyond to keep the dust from being raised by the operation of its cars. Hardin-Wyahdot Lighting Co. v. Upper Sandusky, 251 U. S. 773: The state may require chartered electric companies to obtain the consent of municipalities before erecting poles and wires in the streets thereof. Milwaukee Electric R. & Light Co. v. Wisconsin, 252 U. S. 100: A street railway company may be compelled to pave in asphalt upon a concrete foundation, though its charter required, in the absence of agreement with the city, only the same material as that last used, which in this instance was macadam. C. B. Munday, Trustee v. Wisconsin Trust Co., 252 U. S. 499: The obligation of con tracts clause applies only to legislation subsequent in time to the contract alleged to be impaired. Producers Transportation Co. v. R. R. Commission, 251 U. S. 228: A common carrier cannot, by making contracts for future transportation, etc., prevent the state from exercising its power to regulate such carrier's rates. Hays v. Seattle, 251 U. S. 233: A statute which has the effect of repudiating an unfulfilled contract previously made with the state does not impair the obligation of the contract, since the obligation still remains and forms the measure of the contractor's right to recover damages from the state. Central of Georgia R. Co. v. Wright, 250 U. S. 519, sustained a tax exemption of a leased road on facts peculiar to the case. There were four dissents. Travis v. Yale and Towne Mfg. Co., supra, was also argued to some extent under the “obligation of con tracts” clause.
116 The clause reads: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”
117 Kenney v. Loyal Order of Moose, 252 U. S. 411, decided April 19. The same day was also decided Canadian Northern Ry. Co. v. Eggen, 252 U. S. 553 in which it was held that a provision of the Minnesota statutes denying jurisdiction over causes of action arising outside the state which have lapsed under the laws of the place of action, did not infringe the “privileges, and immunities” clause of article 4, provided the foreign limitation, though shorter than that of Minnesota, was not unduly short.
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