which the authority was exerted and by which completeness its exercise is to be tested suffices, we think, to dispose of the many other objections urged as to the want of power in Congress to confer upon the President the authority which it gave him."

To the contention that the President exceeded the power given "because there was nothing in the conditions at the time the power was exercised which justified the calling into play of the authority," the answer is made that "as the contention at best concerns not a want of power, but a mere excess or abuse of discretion in exerting a power given, it is clear that it involves considerations which are beyond the reach of judicial power." What this means is open to debate. It may mean that whatever Congress calls an exercise of the war power is an exercise of the war power. It may mean that if there are any conceivable circumstances under which a statute or proclamation would be an exercise of the war power, it is an exercise of the war power whatever the circumstances may be. Or it may mean only that the complete control of railroads and telegraphs is plainly an exercise of the war power quite apart from any other circumstances than the existence of a state of war. In the telephone case Mr. Justice Brandeis dissented, without opinion. In the railroad case he confined his concurrence to the result. Of both cases it may be said that the result is more satisfying than the opinions.

The war power was found sufficient in McKinley v. United States13 to sustain the order of the secretary of war forbidding houses of ill fame within five miles of an army post. The authority of Congress to regulate for the health and welfare of the army was said to be "too well settled to require more than the statement of the proposition" and the regulation in question was found obviously related to the health and efficiency of the troops.

Three cases" sustaining convictions under the Espionage Act plainly sanction the proposition that Congress under the war power may forbid the making of remarks which tend to interfere with the raising of the army either by enlistment or the draft. The issue in the cases was the degree of the relation between the remarks and the danger of the interference sought to be prevented by the statute. The questions considered in the opinions will be dealt with in a later section dealing with immunities of persons charged with crime.

43 (1919) 219 U. S. 397, 39 Sup. Ct. 324.

"Schenck v. United States, (1919) 249 U. S. 47, 39 Sup. Ct. 247, Frohwerk v. United States, (1919) 249 U. S. 204, 39 Sup. Ct. 249, Debs v. United States, (1919)

III. MISCELLANEOUS FEDERAL POWERS

Though the question in Alaska Pacific Fisheries v. United States seemed to be the construction of the words "the body of lands known as the Annette Islands" in an Act of Congress creating a reservation for Indians, Mr. Justice Van Devanter observed that in reaching the construction it is important to have in mind the power of Congress in the premises and declared that Congress had the "power to make the reservation inclusive of the adjacent waters and submerged land," since "all were the property of the United States and within a district where the entire dominion and sovereignty rested in the United States and over which Congress had complete legislative authority."

In Ruddi v. Rossi the power of Congress to dispose of public lands was held to carry with it authority to exempt such lands after conveyance in fee simple to private owners from any attachment for debts contracted prior to the issue of the patent. Mr. Justice Holmes dissented because he was unable to see how Congress could extend its control beyond the time when its ownership was at an end. He insisted that "the statute must operate, if at all, purely by way of legislation, not as the qualification of the grant," and thought that a previous law could not affect the land in any way that a subsequent one could not. But he added with combined resignation and regret: "I am aware that my doubts are contrary to manifest destiny and to a number of decisions in the State Courts. I know also that when common understanding and practice have established a way it is a waste of time to wander in bypaths of logic."

Another instance in which Congress was allowed to prolong its control beyond the time when the major incidence of the control had ended appears in Capital Trust Co. v. Calhoun47 in which a restriction in an appropriation as to the amount which attorneys for the beneficiaries might receive from the proceeds was applied to defeat a claim of such attorneys against the estate of the deceased beneficiary which was being administered in a state court. It chanced that the estate consisted entirely of the funds received from the government, so that the decision did not involve the power of Congress over funds received from other sources.

45 (1919) 248 U. S. 78, 39 Sup. Ct. 40.

45 (1918) 248 U. S. 104, 39 Sup. Ct. 46. See 19 Columbia Law Review 159, 4 Cornell Law Quarterly 50, 32 Harvard Law Review 721, and 28 Yale Law Journal 283.

47 (1919) 250 U. S. 208, 39 Sup. Ct. 486. For a note on an earlier case in the District of Columbia on the same question, see 17 Columbia Law Review 483.

An important question of legislative procedure was settled in Missouri Pacific Ry. Co. v. Kansas48 which held that the word "House" in the clause requiring a two-thirds vote in each house for passing a bill over the President's veto means not the entire membership but the quorum which is sufficient to entitle the house to proceed to the original passage of the bill by a majority vote. If a majority of all the members is present, a bill may be passed over a veto by two-thirds of those present. In reaching the decision the court attached great weight to legislative practice in submitting constitutional amendments by a vote of two-thirds of a quorum but not two-thirds of the entire membership and referred to "the identity between the provision giving the power by a two-thirds vote to submit amend

ments, and the requirements as to the two-thirds vote necessary to override a veto" which "makes the practice es to the one applicable to the other." The practice of submitting amendments by a vote of less than two-thirds of the entire membership was fourd to have been approved by the first Congress in the submission of the first ten amendments. In emphasizing the importance of this early legislative construction, the Chief Justice observed: "When it is considered that the chairman of the committee in charge of the amendments was Mr. Madison, and that both branches of Congress contained many members who had participated in the deliberations of the convention or in the proceedings which led to the ratification of the Constitution, and that the whole subject was necessarily vividly present in the minds of those who dealt with it, the convincing effect of the action cannot. be overstated."

IV. GOVERNMENTAL RELATIONS BETWEEN THE STATES AND THE UNITED STATES

It is surprising that the question decided in Bank of California v. Richardson" had not been raised and settled previously. The stockholders of a national bank claimed that the assessment of their shares for state taxation should exclude such part of their value as was contributed by the shares of state and national banks owned by the bank of which they were stockholders. The Supreme Court agreed that no

See 28 Yale Law Journal 415.

48 (1919) 248 U. S. 276, 39 Sup. Ct. 93. (1919) 248 U. S. 476, 39 Sup. Ct. 165. See also Bank of California v. Roberts, (1919) 248 U. S. 497, 39 Sup. Ct. 171. See 19 Columbia Law Review 59, 32 Harvard

deduction should be made on account of the shares in a state bank, but the majority held that the value of the shares of the national bank should be deducted. The reason given was that the power of the state to tax national bank stock was wholly dependent upon congressional permission, that the permission was confined to a single tax on the interest of the stockholder, and that the shares were in effect taxed twice if they were taxed to the national bank which owned them and then entered again into the assessment of the shares in the owner bank. The minority, consisting of Justices Pitney, Brandeis and Clarke, insisted that it was well established that the interest of a stockholder in a national bank was taxable without regard to the character of the investments held by the bank, and saw no reason why investments in other national banks should be deducted in making the assessment when investments in United States bonds can be included. It found nothing in the congressional statute which required the deduction and brought to bear the conventional distinction between the property of the shareholder and the property of the bank.

Chesapeake & Delaware Canal Co. v. United States50 applied the established rule that the United States when asserting sovereign or governmental rights is not subject to state statutes of limitations.51

V. POLICE POWER

The modern development of the police power renders it difficult to classify present day cases under the familiar categories of health, safety and morals. The same statute often has several purposes and protects different interests. Restrictions on the sale of food products, for example, pass beyond the prevention of disease and aim to satisfy the curiosity of the consumer and to protect the farmer from unwelcome competition from synthetic products. Control of the relations. between employer and employee transcends the primary requirements of health and safety and has something to do with conceptions of fair

* (1919) 250 U. S. 123, 39 Sup. Ct. 407.

51 Cavanaugh v. Looney, (1919) 248 U. S. 453, 39 Sup. Ct. 142, recognized the familiar rule that a federal court may enjoin proceedings by state officials in violation of the federal Constitution, but, in applying the subsidiary rule that this should not be done except in a case reasonably free from doubt and when necessary to prevent great and irreparable injury, denied relief.

In Barrett v. Virginian Ry. Co., (1919) 250 U. S. 473, 39 Sup. Ct. 540, Mr. Justice McReynolds remarked obiter that the rule of the federal courts as to directing verdicts is not subject to modification by state statutes and constitutions.

dealing. Regulation of commercial intercourse is no longer confined to prevention of the types of fraud known at common law. Public convenience is a well-recognized justification for impositions on those engaged in enterprises known as public utilities. Most of the current decisions on the police power may be conveniently put under one of the three heads of commercial intercourse, industrial relations, and public utilities. A few which could not be put under commercial relations without undue squeezing have in common the control of physical conditions. Obviously these classifications are not mutually exclusive and will not bear rigid scientific scrutiny. Such merit as they have, if any, is mainly that of convenience.

PHYSICAL CONDITIONS

Both safety and health lay behind the statute sustained in Perley v. North Carolina52 which required any one cutting timber within four hundred feet of a watershed owned by a municipality to remove waste parts so as to prevent the spread of fire and consequent danger to the watershed. The fact that similar neglects on the part of the municipality did not constitute a violation of the statute was held not to constitute an illegal discrimination under the equal-protection clause.

Safety was the obvious justification for the ordinance approved in Pierce Oil Corporation v. Hopes which forbade "the storing of petroleum, gasoline, etc. within three hundred feet of any dwelling, beyond certain small quantities specified." The court refused to regard the complainant's praise of the safety of its tanks as confessed by the city's demurrer and added that "if it were true that the necessarily general form of the law embraced some innocent object, that of itself would not be enough to invalidate it or to remove such an object from its grasp." It was hinted, however, that special circumstances might induce the court to make an exception, but none were found in the case at bar.

Aesthetic considerations as a justification for restrictions on the use of property made some slight progress towards recognition in St. Louis Poster Advertising Co. v. St. Louis, which sustained an ordinance limiting the area of billboards to 400 square feet, their height

** (1919) 249 U. S. 510, 39 Sup. Ct. 357.

(1919) 248 U. S. 498, 39 Sup. Ct. 172.