 |
[62] 325 U.S. 279 (1945).
[63] Ibid. 281-283.
[64] 334 U.S. 541 (1948). See also the companion case of Kreiger v. Kreiger, 334 U.S. 555 (1948).
[65] Esenwein v. Commonwealth, 325 U.S. 279, 280 (1945).
[66] Because the record, in his opinion, did not make it clear whether New York "law" held that no "ex parte" divorce decree could terminate a prior New York separate maintenance decree, or merely that no "ex parte" decree of divorce of another State could, Justice Frankfurter dissented and recommended that the case be remanded for clarification. Justice Jackson dissented on the ground that under New York law, a New York divorce would terminate the wife's right to alimony; and if the Nevada decree is good, it is entitled to no less effect in New York than a local decree. However, for reasons stated in his dissent in the First Williams Case, 317 U.S. 287, he would prefer not to give standing to constructive service divorces obtained on short residence. 334 U.S. 541, 549-554 (1948). These two Justices filed similar dissents in the companion case of Kreiger v. Kreiger, 334 U.S. 555, 557 (1948).
[67] 334 U.S. 343 (1948).
[68] 334 U.S. 378 (1948).—In a dissenting opinion filed in the case of Sherrer v. Sherrer, but applicable also to the case of Coe v. Coe, Justice Frankfurter, with Justice Murphy concurring, asserted his inability to accept the proposition advanced by the majority that "regardless of how overwhelming the evidence may have been that the asserted domicile in the State offering bargain-counter divorces was a sham, the home State of the parties is not permitted to question the matter if the form of a controversy had been gone through."—334 U.S. 343, 377 (1948).
[69] 336 U.S. 674 (1949).—Of four Justices dissenting (Black, Douglas, Rutledge, Jackson), Justice Jackson alone filed a written opinion. To him the decision is "an example of the manner in which, in the law of domestic relations, 'confusion now hath made his masterpiece,'" but for the first Williams case and its progeny, the judgment of the Connecticut court might properly have held that the Rice divorce decree was void for every purpose because it was rendered by a State court which never obtained jurisdiction of the nonresident defendant. "But if we adhere to the holdings that the Nevada court had power over her for the purpose of blasting her marriage and opening the way to a successor, I do not see the justice of inventing a compensating confusion in the device of divisible divorce by which the parties are half-bound and half-free and which permits Rice to have a wife who cannot become his widow and to leave a widow who was no longer his wife." Ibid. 676, 679, 680.
[70] Vermont violated the clause in sustaining a collateral attack on a Florida divorce decree, the presumption of Florida's jurisdiction over the cause and the parties not having been overcome by extrinsic evidence or the record of the case. Cook v. Cook, 342 U.S. 126 (1951). The Sherrer and Coe cases were relied upon. There seems, therefore, to be no doubt of their continued vitality.
[71] Barber v. Barber, 323 U.S. 77, 84 (1944).
[72] Sistare v. Sistare, 218 U.S. 1, 11 (1910). See also Barber v. Barber, 21 How. 582 (1859); Lynde v. Lynde, 181 U.S. 183, 186-187 (1901); Bates v. Bodie, 245 U.S. 520 (1918); Audubon v. Shufeldt, 181 U.S. 575, 577 (1901); Yarbrough v. Yarbrough, 290 U.S. 202 (1933); Loughran v. Loughran, 292 U.S. 216 (1934).
[73] Griffin v. Griffin, 327 U.S. 220 (1946).
[74] Ibid. 228. An alimony case of a quite extraordinary pattern was that of Sutton v. Leib. On account of the diverse citizenship of the parties, who had once been husband and wife, the case was brought by the latter in a federal court in Illinois. Her suit was to recover unpaid alimony which was to continue until her remarriage. To be sure, she had, as she confessed, remarried in Nevada, but the marriage had been annulled in New York on the ground that the man was already married, inasmuch as his divorce from his previous wife was null and void, she having neither entered a personal appearance nor been personally served. The Court, speaking by Justice Reed, held that the New York annulment of the Nevada marriage must be given full faith and credit in Illinois, but left Illinois to decide for itself the effect of the annulment upon the obligations of petitioner's first husband. Sutton v. Leib, 342 U.S. 402 (1952).
[75] Halvey v. Halvey, 330 U.S. 610, 615 (1947).
[76] Johnson v. Muelberger, 341 U.S. 581 (1951).
[77] Tilt v. Kelsey, 207 U.S. 43 (1907); Burbank v. Ernst, 232 U.S. 162 (1914).
[78] Riley v. New York Trust Company, 315 U.S. 343 (1942).
[79] Brown v. Fletcher, 210 U.S. 82, 90 (1908). See also Stacy v. Thrasher, Use of Sellers, 6 How. 44, 58 (1848); McLean v. Meek, 18 How. 16, 18, (1856).
[80] Tilt v. Kelsey, 207 U.S. 43 (1907). In the case of Borer v. Chapman, 119 U.S. 587, 599 (1887) involving a complicated set of facts, it was held, in 1887, that a judgment in a probate proceeding, which was merely ancillary to proceedings in another State and which ordered the residue of the estate to be assigned to the legatee and discharged the executor from further liability, did not prevent a creditor, who was not a resident of the State in which the ancillary judgment was rendered, from setting up his claim in the State probate court which had the primary administration of the estate.
[81] Blodgett v. Silberman, 277 U.S. 1 (1928).
[82] Kerr v. Devisees of Moon, 9 Wheat. 565 (1824); McCormick v. Sullivant, 10 Wheat. 192 (1825); Clarke v. Clarke, 178 U.S. 186 (1900). The controlling principle of these cases is not confined to proceedings in probate. A court of equity "not having jurisdiction of the res cannot affect it by its decree nor by a deed made by a master in accordance with the decree." See Fall v. Eastin, 215 U.S. 1, 11 (1909).
[83] Robertson v. Pickrell, 109 U.S. 608, 611 (1883). See also Darby v. Mayer, 10 Wheat. 465 (1825); Gasquet v. Fenner, 247 U.S. 16 (1918).
[84] Olmsted v. Olmsted, 216 U.S. 386 (1910).
[85] Hood v. McGehee, 237 U.S. 611 (1915).
[86] Harris v. Balk, 198 U.S. 215 (1905). See also Chicago, R.I. & Pac. Ry v. Sturm, 174 U.S. 710 (1899); King v. Cross, 175 U.S. 396, 399 (1899); Louisville & N.R. Co. v. Deer, 200 U.S. 176 (1906); Baltimore & O.R. Co. v. Hostetter, 240 U.S. 620 (1916).
[87] Christmas v. Russell, 5 Wall. 290 (1866); Maxwell v. Stewart, 21 Wall. 71 (1875); Hanley v. Donoghue, 116 U.S. 1 (1885); Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888); Simmons v. Saul, 138 U.S. 439 (1891); American Express Co. v. Mullins, 212 U.S. 311 (1909).
[88] Fauntleroy v. Lum, 210 U.S. 230 (1908).
[89] Anglo-American Provision Co. v. Davis Provision Co., 191 U.S. 373 (1903).
[90] 133 U.S. 107 (1890).
[91] The Antelope, 10 Wheat. 66, 123 (1825). See also Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).
[92] 146 U.S. 657 (1892). See also Dennick v. R.R. 103 U.S. 11 (1881).
[93] Milwaukee County v. White (N.E.) Co., 296 U.S. 268 (1935). See also Moore v. Mitchell, 281 U.S. 18 (1930).
[94] Bank of Augusta v. Earle, 13 Pet. 519, 589-596 (1839). See Kryger v. Wilson, 242 U.S. 171 (1916); Bond v. Hume, 243 U.S. 15 (1917).
[95] 19 How. 393, 460 (1857); Bonaparte v. Tax Court, 104 U.S. 592 (1882), where it was held that a law exempting from taxation certain bonds of the enacting State did not operate extraterritorially by virtue of the full faith and credit clause.
[96] Chicago & Alton R. Co. v. Wiggins Ferry, 119 U.S. 615, 622 (1887).
[97] Smithsonian Institution v. St. John, 214 U.S. 19 (1909). When, in a State court, the validity of an act of the legislature of another State is not in question, and the controversy turns merely upon its interpretation or construction, no question arises under the full faith and credit clause. See also Western Life Indemnity Co. v. Rupp, 235 U.S. 261 (1914), citing Glenn v. Garth, 147 U.S. 360 (1893); Lloyd v. Matthews, 155 U.S. 222, 227 (1894); Banholzer v. New York L. Ins. Co., 178 U.S. 402 (1900); Allen v. Alleghany Co., 196 U.S. 458, 465 (1905); Texas & N.O.R. Co. v. Miller, 221 U.S. 408 (1911). See also National Mut. Bldg. & Loan Asso. v. Brahan, 193 U.S. 635 (1904); Johnson v. New York Life Ins. Co., 187 U.S. 491, 495 (1903); Pennsylvania F. Ins. Co. v. Gold Issue Min. & Mill. Co., 243 U.S. 93 (1917).
[98] Alaska Packers Asso. v. Industrial Acci. Commission, 294 U.S. 532 (1935); Bradford Electric Light Co. v. Clapper, 286 U.S. 145 (1932).
[99] Dennick v. R.R., 103 U.S. 11 (1881) was the first of the so-called "Death Act" cases to reach the Supreme Court. See also Stewart v. B.& O.R. Co., 168 U.S. 445 (1897). Even today the obligation of a State to furnish a forum for the determination of death claims arising in another State under the laws thereof appears to rest on a rather precarious basis. In Hughes v. Fetter, 341 U.S. 609 (1951), the Court, by a narrow majority, held invalid under the full faith and credit clause a statute of Wisconsin which, as locally interpreted, forbade its courts to entertain suits of this nature; and in First National Bank v. United Air Lines, 342 U.S. 396 (1952), a like result was reached as to an Illinois statute. In both cases the same four Justices dissented.
[100] 119 U.S. 615 (1887).
[101] Northern Pac. R.R. v. Babcock, 154 U.S. 190 (1894); Atchison, T. & S.F.R. Co. v. Sowers, 213 U.S. 55, 67 (1909).
[102] Glenn v. Garth, 147 U.S. 360 (1893).
[103] Tennessee Coal Co. v. George, 233 U.S. 354 (1914).
[104] Klaxon Co. v. Stentor, 313 U.S. 487 (1941); John Hancock Mut. Life Ins. Co. v. Yates, 299 U.S. 178 (1936) distinguished.
[105] Modern Woodmen of Am. v. Mixer, 267 U.S. 544 (1925).
[106] Converse v. Hamilton, 224 U.S. 243 (1912); Selig v. Hamilton, 234 U.S. 652 (1914); Marin v. Augedahl, 247 U.S. 142 (1918).
[107] Broderick v. Rosner, 294 U.S. 629 (1935). See also Thormann v. Frame, 176 U.S. 350, 356 (1900); Reynolds v. Stockton, 140 U.S. 254, 264 (1891).
[108] Hancock Nat. Bank. v. Farnum, 176 U.S. 640 (1900).
[109] 237 U.S. 531 (1916); followed in Modern Woodmen of Am. v. Mixer, 267 U.S. 544 (1925).
[110] 305 U.S. 66, 75, 79 (1938).
[111] 331 U.S. 586, 588-589, 637 (1947).
[112] New York Life Ins. Co. v. Head, 234 U.S. 149 (1914); Aetna Life Ins. Co. v. Dunken, 266 U.S. 389 (1924).
[113] 193 U.S. 635 (1904).
[114] National Mutual B. & L. Asso. v. Brahan, 193 U.S. 635 (1904).
[115] New York Life Ins. Co. v. Cravens, 178 U.S. 389 (1900). See also American Fire Ins. Co. v. King Lumber Co., 250 U.S. 2 (1919).
[116] Griffin v. McCoach, 313 U.S. 498 (1941).
[117] 314 U.S. 201, 206-208 (1941). However, a decree of a Montana Supreme Court, insofar as it permitted judgment creditors of a dissolved Iowa surety company to levy execution against local assets to satisfy judgment, as against title to such assets of the Iowa insurance commissioner as statutory liquidator and successor to the dissolved company, was held to deny full faith and credit to the statutes of Iowa.—Clark v. Willard, 292 U.S. 112 (1934).
[118] 324 U.S. 154, 159-160 (1945).
[119] Bradford Electric Co. v. Clapper, 286 U.S. 145, 158 (1932).
[120] The Court had earlier remarked that "workmen's compensation legislation rests upon the idea of status, not upon that of implied contract." Cudahy Packing Co. v. Parramore, 263 U.S. 418, 423 (1923). In contrast to the above cases, see Kryger v. Wilson, 242 U.S. 171 (1916), where it was held that the question whether the cancellation of a land contract was governed by the lex rei sitae or the lex loci contractus was purely a question of local common law; also Bond v. Hume, 243 U.S. 15 (1917).
[121] Pacific Ins. Co. v. Comm'n., 306 U.S. 493, 497, 503-504 (1939).
[122] 320 U.S. 430 (1943).
[123] Industrial Comm'n. v. McCartin, 330 U.S. 622 (1947).
[124] Cardillo v. Liberty Mutual Co., 330 U.S. 469 (1947).
[125] Reviewing some of the cases treated in this section, a writer in 1925 said: "It appears, then, that the Supreme Court has quite definitely committed itself to a program of making itself, to some extent, a tribunal for bringing about uniformity in the field of conflicts * * * although the precise circumstances under which it will regard itself as having jurisdiction for this purpose are far from clear." E.M. Dodd, The Power of the Supreme Court to Review State Decisions in the Field of Conflict of Laws (1926), 39 Harv. L. Rev. 533-562. It can hardly be said that the law has been subsequently clarified on this point.
[126] Walter W. Cook, The Power of Congress Under the Full Faith and Credit Clause (1919), 28 Yale L.J. 430.
[127] Cooper v. Newell, 173 U.S. 555, 567 (1899). See also Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291 (1888); Swift v. McPherson, 232 U.S. 51 (1914); Pennington v. Gibson, 16 How. 65, 81 (1854); Cheever v. Wilson, 9 Wall. 108, 123 (1870); Baldwin v. Iowa State Traveling Men's Asso., 283 U.S. 522 (1931); American Surety Co. v. Baldwin, 287 U.S. 156 (1932); Sanders v. Armour Fertilizer Works, 292 U.S. 190 (1934).
[128] Milwaukee County v. White (M.E.) Co., 296 U.S. 268 (1935).
[129] Equitable L. Assur. Soc. v. Brown, 187 U.S. 308 (1902). See also Gibson v. Lyon, 115 U.S. 439 (1885).
[130] Embry v. Palmer, 107 U.S. 3, 9 (1883). See also Northern Assur. Co. v. Grand View Bldg. Asso., 203 U.S. 106 (1906); Atchison, T. & S.F.R. Co. v. Sowers, 213 U.S. 55 (1909); Knights of Pythias v. Meyer, 265 U.S. 30, 33 (1924); Louisville & N.R. Co. v. Central Stockyards Co., 212 U.S. 132 (1909); West Side Belt R. Co. v. Pittsburgh Constr. Co., 219 U.S. 92 (1911).
[131] No right, privilege, or immunity is conferred by the Constitution in respect to judgments of foreign states and nations.—Aetna Life Ins. Co. v. Tremblay, 223 U.S. 185 (1912). In Hilton v. Guyot, 159 U.S. 113, 234 (1895) where a French judgment offered in defense was held not a bar to the suit. Four Justices dissented on the ground that "the application of the doctrine of res judicata does not rest in discretion; and it is for the Government, and not for its courts, to adopt the principle of retorsion, if deemed under any circumstances desirable or necessary." At the same sitting of the Court, an action in a United States circuit court on a Canadian judgment was sustained on the same ground of reciprocity. Ritchie v. McMullen, 159 U.S. 235 (1895). See also Ingenohl v. Olsen, 273 U.S. 541 (1927), where a decision of the Supreme Court of the Philippine Islands was reversed for refusal to enforce a judgment of the Supreme Court of the British colony of Hongkong, which was rendered "after a fair trial by a court having jurisdiction of the parties." In 1897 Foreign Relations of the United States 7-8, will be found a three-cornered correspondence between the State Department, the Austro-Hungarian Legation, and the Governor of Pennsylvania, in which the last named asserts that "under the laws of Pennsylvania the judgment of a court of competent jurisdiction in Croatia would be respected to the extent of permitting such judgment to be sued upon in the courts of Pennsylvania." Stowell, op. cit. supra note I, at 254-255. Another instance of international cooperation in the judicial field is furnished by letters rogatory. "When letters rogatory are addressed from any court of a foreign country to any district court of the United States, a commissioner of such district court designated by said court to make the examination of the witnesses mentioned in said letters, shall have power to compel the witnesses to appear and depose in the same manner as witnesses may be compelled to appear and testify in courts," 28 U.S.C.A., supra note II, Sec. 653. Some of the States have similar laws. See 2 Moore, Digest of International Law (1906) 108-109.
[132] David K. Watson, The Constitution of the United States, vol. II, 1206 (1910).
[133] The Federalist No. 42.
[134] 16 Wall. 36 (1873).
[135] Ibid. 75.
[136] Scott v. Sandford, 19 How. 393 (1857).
[137] Ibid. 518, 527-529.
[138] 153 U.S. 684, 687 (1894).
[139] 135 U.S. 492 (1890).
[140] Slaughter-House Case, 15 Fed. Cas. No. 8408 (1870); Chambers v. Baltimore & O.R. Co., 207 U.S. 142 (1907); Whitfield v. Ohio, 297 U.S. 431 (1936).
[141] 16 Wall. 36 (1873).
[142] Ibid. 77.
[143] Bradwell v. Illinois, 16 Wall. 130, 138 (1873). See also Cole v. Cunningham, 133 U.S. 107 (1890).
[144] Blake v. McClung, 172 U.S. 239, 246 (1898); Travis v. Yale & Towne Mfg. Co., 252 U.S. 60 (1920).
[145] La Tourette v. McMaster, 248 U.S. 465 (1919); Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377 (1929); cf. Maxwell v. Bugbee, 250 U.S. 525 (1919).
[146] United States v. Harris, 106 U.S. 629, 643 (1883). See also Baldwin v. Franks, 120 U.S. 678 (1887).
[147] United States v. Wheeler, 254 U.S. 281 (1920).
[148] Scott v. Sandford, 19 How. 393 (1857)
[149] Ibid. 403-411.
[150] Ibid. 572-590.
[151] 13 Pet. 519 (1939).
[152] Ibid. 586.
[153] 8 Wall. 168 (1869).
[154] Ibid. 181.
[155] Crutcher v. Kentucky, 141 U.S. 47 (1891). See also pp. 193-198, 1049-1056.
[156] Hemphill v. Orloff, 277 U.S. 537 (1928).
[157] 6 Fed. Cas. No. 3,230, 546, 550 (1823).
[158] Ibid. 551-522.
[159] Ibid. 552.
[160] Corfield v. Coryell, 6 Fed. Cas. No. 3230, 546, 552 (1823).
[161] Ibid. 552.
[162] 94 U.S. 391 (1877).
[163] 161 U.S. 519 (1896).
[164] 209 U.S. 349 (1908).
[165] 334 U.S. 385 (1948).
[166] Ibid. 403. In Mullaney v. Anderson, 342 U.S. 415 (1952) an Alaska statute providing for the licensing of commercial fishermen in territorial waters and levying a license fee of $50.00 on nonresident and only $5.00 on resident fishermen was held void under Art. IV, Sec. 2 on the authority of Toomer v. Witsell, cited above.
[167] 172 U.S. 239 (1898).
[168] Ibid. 256.
[169] La Tourette v. McMaster, 248 U.S. 465 (1919).
[170] Doherty and Co. v. Goodman, 294 U.S. 623 (1935).
[171] Hess v. Pawloski, 274 U.S. 352, 356 (1927).
[172] Ferry v. Spokane P. & S.R. Co., 258 U.S. 314 (1922), followed in Ferry v. Corbett, 258 U.S. 609 (1922).
[173] Conner v. Elliott, 18 How. 591, 593 (1856).
[174] Blake v. McClung, 172 U.S. 230, 248 (1898).
[175] Williams v. Bruffy, 96 U.S. 176, 184 (1878).
[176] Chambers v. Baltimore & O.R. Co., 207 U.S. 142, 148 (1907); McKnett v. St. Louis & S.F.R. Co., 292 U.S. 230, 233 (1934); Miles v. Illinois C.R. Co., 315 U.S. 698, 704 (1942).
[177] Canadian N.R. Co. v. Eggen, 252 U.S. 553 (1920).
[178] Ibid. 563.
[179] Chemung Canal Bank v. Lowery, 93 U.S. 72, 76 (1876).
[180] Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377 (1929).
[181] Chambers v. Baltimore & O.R. Co., 207 U.S. 142 (1907).
[182] 12 Wall. 418, 424 (1871). See also Downham v. Alexandria, 10 Wall. 173, 175 (1870).
[183] Chalker v. Birmingham & M.W.R. Co., 249 U.S. 522 (1919).
[184] 252 U.S. 60 (1920).
[185] Ibid. 62-64. See also Shaffer v. Carter, 252 U.S. 37 (1920).
[186] 252 U.S. 60, 79-80 (1920).
[187] Williams v. Fears, 179 U.S. 270, 274 (1900).
[188] Haavik v. Alaska Packers' Asso., 263 U.S. 510 (1924).
[189] Travelers' Ins. Co. v. Connecticut, 185 U.S. 364, 371 (1902).
[190] Maxwell v. Bugbee, 250 U.S. 525 (1919).
[191] Kirtland v. Hotchkiss, 100 U.S. 491, 499 (1879). Cf. Colgate v. Harvey, 296 U.S. 404 (1935) in which discriminatory taxation of bank deposits outside the State owned by a citizen of the State was held to infringe a privilege of national citizenship, in contravention of the Fourteenth Amendment. The decision in Colgate v. Harvey was overruled in Madden v. Kentucky, 309 U.S. 83, 93 (1940).
[192] 1 Stat. 302 (1793).
[193] Roberts v. Reilly, 116 U.S. 80, 94 (1885). See also Innes v. Tobin, 240 U.S. 127 (1916). Said Justice Story: "... the natural, if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution"; [and again] "... it has, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly given, and duties expressly enjoined thereby." Prigg v. Pennsylvania, 16 Pet. 539, 616, 618-619 (1842).
[194] Taylor v. Taintor, 16 Wall. 366, 371 (1873).
[195] 24 How. 66 (1861); Cf. Prigg v. Pennsylvania, 16 Pet. 539, 612 (1842).
[196] 24 How. 66, 107 (1861).
[197] 48 Stat. 782 (1934).
[198] Roberts v. Reilly, 116 U.S. 80 (1885). See also Strassheim v. Daily, 221 U.S. 280 (1911); Appleyard v. Massachusetts, 203 U.S. 222 (1906); Ex parte Reggel, 114 U.S. 642, 650 (1885).
[199] Drew v. Thaw, 235 U.S. 432, 439 (1914).
[200] Innes v. Tobin, 240 U.S. 127 (1916).
[201] Bassing v. Cady, 208 U.S. 386 (1908).
[202] Hyatt v. New York ex rel. Corkran, 188 U.S. 691 (1903).
[203] Kentucky v. Dennison, 24 How. 66, 103 (1861).
[204] Taylor v. Taintor, 16 Wall. 366, 375 (1873).
[205] Kentucky v. Dennison, 24 How. 66, 104 (1861); Pierce v. Creecy, 210 U.S. 387 (1908). See also Marbles v. Creecy, 215 U.S. 63 (1909); Strassheim v. Daily, 221 U.S. 280 (1911); Re Strauss, 197 U.S. 324, 325 (1905).
[206] Munsey v. Clough, 196 U.S. 364 (1905); Pettibone v. Nichols, 203 U.S. 192 (1906).
[207] Drew v. Thaw, 235 U.S. 432 (1914).
[208] Pettibone v. Nichols, 203 U.S. 192, 216 (1906).
[209] Biddinger v. Police Comr., 245 U.S. 128 (1917). See also Rodman v. Pothier, 264 U.S. 399 (1924).
[210] Hyatt v. New York ex rel. Corkran, 188 U.S. 691 (1903). See also South Carolina v. Bailey, 289 U.S. 412 (1933).
[211] Munsey v. Clough, 196 U.S. 364, 375 (1905).
[212] Ker v. Illinois, 119 U.S. 436, 444 (1886); Mahon v. Justice, 127 U.S. 700, 707, 712, 714 (1888).
[213] Cook v. Hart, 146 U.S. 183, 193 (1892); Pettibone v. Nichols, 203 U.S. 192, 215 (1906).
[214] Lascelles v. Georgia, 148 U.S. 537, 543 (1893).
[215] United States v. Rauscher, 119 U.S. 407, 430 (1886).
[216] Prigg v. Pennsylvania, 16 Pet. 539, 612 (1842).
[217] 1 Stat. 302 (1793).
[218] Jones v. Van Zandt, 5 How. 215, 229 (1847); Ableman v. Booth, 21 How. 506 (1859).
[219] Prigg v. Pennsylvania, 16 Pet. 539, 625 (1842).
[220] Moore v. Illinois, 14 How. 13, 17 (1853).
[221] Escanaba & L.M. Transp. Co. v. Chicago, 107 U.S. 678, 689 (1883).
[222] Madison, Journal of the Debates in the Convention which Framed the Constitution, 89 (Hunt's ed., 1908).
[223] Ibid. 274.
[224] Ibid. 275.
[225] Pollard v. Hagan, 3 How. 212, 221 (1845).
[226] 2 Stat. 701, 703 (1812).
[227] Justice Harlan, speaking for the Court in United States v. Texas, 143 U.S. 621, 634 (1892); 9 Stat. 108.
[228] Permoli v. New Orleans, 3 How. 589, 609 (1845); McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151 (1914); Illinois Central R. Co. v. Illinois, 146 U.S. 387, 434 (1892); Knight v. United Land Asso., 142 U.S. 161, 183 (1891); Weber v. State Harbor Comrs., 18 Wall. 57, 65 (1873).
[229] Coyle v. Smith, 221 U.S. 559 (1911).
[230] Ibid. 567.
[231] United States v. Texas, 339 U.S. 707, 716 (1950); Stearns v. Minnesota, 179 U.S. 223, 245 (1900).
[232] Pollard v. Hagan, 3 How. 212, 223 (1845); McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151 (1914).
[233] Van Brocklin v. Tennessee, 117 U.S. 151, 167 (1886).
[234] Wilson v. Cook, 327 U.S. 474 (1946).
[235] Permoli v. New Orleans, 3 How. 589, 609 (1845); Sands v. Manistee River Imp. Co., 123 U.S. 288, 296 (1887); see also Withers v. Buckley, 20 How. 84, 92 (1858); Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 9 (1888); Cincinnati v. Louisville & N.R. Co., 223 U.S. 390 (1912); Huse v. Glover, 119 U.S. 543,(1886).
[236] Draper v. United States, 164 U.S. 240 (1896) following United States v. McBratney, 104 U.S. 621 (1882).
[237] Dick v. United States, 208 U.S. 340 (1908); Ex parte Webb, 225 U.S. 663 (1912).
[238] United States v. Sandoval, 231 U.S. 28 (1914).
[239] Boyd v. Nebraska, 143 U.S. 135, 170 (1892).
[240] Baker v. Morton, 12 Wall. 150, 153 (1871).
[241] Freeborn v. Smith, 2 Wall. 160 (1865).
[242] John v. Paullin, 231 U.S. 583 (1913).
[243] Hunt v. Palao, 4 How. 589 (1846). Cf. Benner v. Porter, 9 How. 235, 246 (1850).
[244] 179 U.S. 223, 245 (1900).
[245] How. 212, 223 (1845). See also Martin v. Waddell, 16 Pet. 367, 410 (1842).
[246] United States v. California, 332 U.S. 19, 38 (1947); United States v. Louisiana, 339 U.S. 699 (1950).
[247] 339 U.S. 707, 716 (1950).
[248] Brown v. Grant, 116 U.S. 207, 212 (1886).
[249] Shively v. Bowlby, 152 U.S. 1, 47 (1894). See also Joy v. St. Louis, 201 U.S. 332 (1906).
[250] United States v. Winans, 198 U.S. 371, 378 (1905); Seufert Bros. Co. v. United States, 249 U.S. 194 (1919). A fishing right granted by treaty to Indians does not necessarily preclude the application to Indians of State game laws regulating the time and manner of taking fish. Kennedy v. Becker, 241 U.S. 556 (1916). But it has been held to be violated by the exaction of a license fee which is both regulatory and revenue-producing. Tulee v. Washington, 315 U.S. 681 (1942).
[251] Ward v. Race Horse, 163 U.S. 504, 510, 514 (1896).
[252] 14 Pet. 526 (1840).
[253] Ibid. 533, 538.
[254] Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 335-340 (1936). See also Alabama Power Co. v. Ickes, 302 U.S. 464 (1938).
[255] United States v. Fitzgerald, 15 Pet. 407, 521 (1841). See also California v. Deseret Water, Oil & Irrig. Co., 243 U.S. 415 (1917); Utah Power & Light Co. v. United States, 243 U.S. 389 (1917).
[256] Sioux Tribe v. United States, 316 U.S. 317 (1942); United States v. Midwest Oil Co., 236 U.S. 459, 469 (1915).
[257] Gibson v. Chouteau, 13 Wall. 92, 99 (1872); see also Irvine v. Marshall, 20 How. 558 (1858); Emblem v. Lincoln Land Co., 184 U.S. 660, 664 (1902).
[258] Bagnell v. Broderick, 13 Pet. 436, 450 (1839). See also Field v. Seabury, 19 How. 323, 332 (1857).
[259] Tameling v. United States Freehold & Emigration Co., 93 U.S. 644, 663 (1877). See also United States v. Maxwell Land-Grant and R. Co., 121 U.S. 325, 366 (1887).
[260] Ruddy v. Rossi, 248 U.S. 104 (1918).
[261] Light v. United States, 220 U.S. 523 (1911). See also Hutchings v. Low, 15 Wall. 77 (1873).
[262] Camfield v. United States, 167 U.S. 518, 525 (1897). See also Jourdan v. Barrett, 4 How. 169 (1846); United States v. Waddell, 112 U.S. 76 (1884).
[263] United States v. McGowan, 302 U.S. 535 (1938).
[264] United States v. San Francisco, 310 U.S. 16 (1940).
[265] Van Brocklin v. Tennessee, 117 U.S. 151 (1886); cf. Wilson v. Cook, 327 U.S. 474 (1946).
[266] Gibson v. Chouteau, 13 Wall 92, 99 (1872). See also Irvine v. Marshall, 20 How. 558 (1858); Emblem v. Lincoln Land Co., 184 U.S. 660, 664 (1902).
[267] Wilcox v. Jackson ex dem. M'Connel, 13 Pet. 498, 517 (1839).
[268] Oklahoma v. Texas, 258 U.S. 574, 595 (1922).
[269] United States v. Oregon, 295 U.S. 1, 28 (1935).
[270] Simms v. Simms, 175 U.S. 162, 168 (1899). See also United States v. McMillan, 165 U.S. 504, 510 (1897); El Paso & N.E.R. Co. v. Gutierrez, 215 U.S. 87 (1909); First Nat. Bank v. Yankton County, 101 U.S. 129, 133 (1880).
[271] Binns v. United States, 194 U.S. 486, 491 (1904). See also Sere v. Pitot, 6 Cr. 332, 336 (1810); Murphy v. Ramsey, 114 U.S. 15, 44 (1885).
[272] Walker v. New Mexico & S.P.R. Co., 165 U.S. 593, 604 (1897); Simms v. Simms, 175 U.S. 162, 163 (1899); Wagoner v. Evans, 170 U.S. 588, 591 (1898).
[273] 24 Stat. 170 (1886).
[274] Downes v. Bidwell, 182 U.S. 244, 271 (1901). See also Interstate Commerce Commission v. United States ex rel. Humboldt S.S. Co., 224 U.S. 474 (1912); Church of Jesus Christ of L.D.S. v. United States, 136 U.S. 1, 44 (1890).
[275] Dorr v. United States, 195 U.S. 138, 149 (1904). See also Balzac v. Porto Rico, 258 U.S. 298 (1922).
[276] Rassmussen v. United States, 197 U.S. 516 (1905).
[277] Hawaii v. Mankichi, 190 U.S. 197 (1903); R.M.C. Littler, The Governance of Hawaii, Chap. III (1929).
[278] American Ins. Co. v. Canter, 1 Pet. 511, 546 (1828). See also Romeu v. Todd, 206 U.S. 358, 368 (1907); United States v. McMillan, 165 U.S. 504, 510 (1897); McAllister v. United States, 141 U.S. 174, 180 (1891); The "City of Panama" v. Phelps, 101 U.S. 453, 460 (1880); Reynolds v. United States, 98 U.S. 145, 154 (1879); Hornbuckle v. Toombs, 18 Wall. 648, 655 (1874); Clinton v. Englebrecht, 13 Wall. 434, 447 (1872).
[279] American Ins. Co. v. Canter, 1 Pet. 511, 545 (1828).
[280] 7 How. 1 (1849).
[281] Ibid. 42. See also Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74, 80 (1930); Mountain Timber Co. v. Washington, 243 U.S. 219, 234 (1917).
[282] 7 Wall. 700, 729 (1869).
[283] Pacific States Teleph. & Teleg. Co. v. Oregon, 223 U.S. 118 (1912); Kiernan v. Portland, 223 U.S. 151 (1912); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916).
[284] Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74, 80 (1930); O'Neill v. Leamer, 239 U.S. 244 (1915); Highland Farms Dairy Inc. v. Agnew, 300 U.S. 608, 612 (1937); Forsyth v. Hammond, 166 U.S. 506, 519 (1897).
[285] Taylor v. Beckham, 178 U.S. 548 (1900). See also Marshall v. Dye, 231 U.S. 250 (1914).
[286] Minor v. Happersett, 21 Wall. 162, 175 (1875).
[287] 7 How. 1 (1849).
[288] 1 Stat. 424 (1795).
[289] 7 How. 1, 43 (1849).
[290] 158 U.S. 564 (1895).
[291] Ibid. 582.
[292] On the decline in observance of the formalities required by the provision both before and during World War I, see Corwin, The President, Office and Powers (3d ed., 1948), 164-166.
ARTICLE V
MODE OF AMENDMENT
Page Amendment of the Constitution 711 Scope of the amending power 711 Procedure of adoption 712 Submission of amendment 712 Ratification 712 Authentication and proclamation 713 Judicial review under article V 714
MODE OF AMENDMENT
Article V
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Amendment of the Constitution
SCOPE OF AMENDING POWER
When this Article was before the Constitutional Convention, a motion to insert a provision that "no State shall without its consent be affected in its internal policy" was made and rejected.[1] A further attempt to impose a substantive limitation on the amending power was made in 1861, when Congress submitted to the States a proposal to bar any future amendments which would authorize Congress to "interfere, within any State, with the domestic institutions thereof, * * *."[2] Three States ratified this article before the outbreak of the Civil War made it academic.[3] Many years later the validity of both the Eighteenth and Nineteenth Amendments was challenged because of their content. The arguments against the former took a wide range. Counsel urged that the power of amendment is limited to the correction of errors in the framing of the Constitution; that it does not comprehend the adoption of additional or supplementary provisions. They contended further that ordinary legislation cannot be embodied in a constitutional amendment and that Congress cannot constitutionally propose any amendment which involves the exercise or relinquishment of the sovereign powers of a State.[4] The Nineteenth Amendment was attacked on the narrower ground that a State which had not ratified the amendment would be deprived of its equal suffrage in the Senate because its representatives in that body would be persons not of its choosing, i.e., persons chosen by voters whom the State itself had not authorized to vote for Senators.[5] Brushing aside these arguments as unworthy of serious attention, the Supreme Court held both amendments valid.
PROCEDURE OF ADOPTION
Submission of Amendment
When Madison submitted to the House of Representatives the proposals from which the Bill of Rights evolved, he contemplated that they should be incorporated in the text of the original instrument.[6] Instead the House decided to propose them as supplementary.[7] It ignored a suggestion that the two Houses should first resolve that amendments are necessary before considering specific proposals.[8] In the National Prohibition Cases[9] the Supreme Court ruled that in proposing an amendment the two Houses of Congress thereby indicated that they deemed it necessary. That same case also established the proposition that the vote required to propose an amendment was a vote of two thirds of the members present—assuming the presence of a quorum—and not a vote of two thirds of the entire membership present and absent.[10] The approval of the President is not necessary for a proposed amendment.[11]
Ratification
Congress may, in proposing an amendment, set a reasonable time limit for its ratification. Two amendments proposed in 1789, one submitted in 1810 and one in 1861, were never ratified. In Dillon v. Gloss[12] the Court intimated that proposals which were clearly out of date were no longer open for ratification. However, in Coleman v. Miller,[13] it refused to pass upon the question whether the proposed child labor amendment, submitted to the States in 1924, was open to ratification thirteen years later. It held this to be a political question which would have to be resolved by Congress in the event three fourths of the States ever gave their assent to the proposal. With respect to the Eighteenth, Twentieth, Twenty-first and Twenty-second Amendments, Congress included in the text of these proposed amendments a section stating that the article should be inoperative unless ratified within seven years. In Dillon v. Gloss the Court sustained this limitation on the ground that it gave effect to the implication of article V that ratification "must be within some reasonable time after the proposal."[14] Congress has complete freedom of choice between the two methods of ratification recognized by article V—by the legislatures of the States, or conventions in the States. In United States v. Sprague[15] counsel advanced the contention that the Tenth Amendment recognized a distinction between powers reserved to the States and powers reserved to the people, and that State legislatures were competent to delegate only the former to the National Government; delegation of the latter required action of the people through conventions in the several States. The Eighteenth Amendment being of the latter character, the ratification by State legislatures, so the argument ran, was invalid. The Supreme Court rejected the argument. It found the language of article V too clear to admit of reading any exceptions into it by implication.
The term "legislatures" as used in article V means deliberative, representative bodies of the type which in 1789 exercised the legislative power in the several States. It does not comprehend the popular referendum which has subsequently become a part of the legislative process in many of the States, nor may a State validly condition ratification of a proposed constitutional amendment on its approval by such a referendum.[16] In the words of the Court: "* * * the function of a State legislature in ratifying a proposed amendment to the Federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the Federal Constitution; and it transcends any limitations sought to be imposed by the people of a State."[17]
Authentication and Proclamation
Formerly official notice from a State legislature, duly authenticated, that it had ratified a proposed amendment went to the Secretary of State, upon whom it was binding, "being certified by his proclamation, [was] conclusive upon the courts" as against any objection which might be subsequently raised as to the regularity of the legislative procedure by which ratification was brought about.[18] This function of the Secretary, purely ministerial in character, was, however, derived from an act of Congress, and was recently transferred to a functionary called Administrator of General Services.[19] In Dillon v. Gloss,[20] the Supreme Court held that the Eighteenth Amendment became operative on the date of ratification by the thirty-sixth State, rather than on the later date of the proclamation issued by the Secretary of State, and doubtless the same rule holds as to a similar proclamation by the Administrator.
JUDICIAL REVIEW UNDER ARTICLE V
Prior to 1939, the Supreme Court had taken cognizance of a number of diverse objections to the validity of specific amendments. Apart from holding that official notice of ratification by the several States was conclusive upon the courts,[21] it had treated these questions as justiciable, although it had uniformly rejected them on the merits. In that year, however, the whole subject was thrown into confusion by the inconclusive decision in Coleman v. Miller.[22] This case came up on a writ of certiorari to the Supreme Court of Kansas to review the denial of a writ of mandamus to compel the Secretary of the Kansas Senate to erase an endorsement on a resolution ratifying the proposed child labor amendment to the Constitution to the effect that it had been adopted by the Kansas Senate. The attempted ratification was assailed on three grounds: (1) that the amendment had been previously rejected by the State legislature; (2) that it was no longer open to ratification because an unreasonable period of time, thirteen years, had elapsed since its submission to the States, and (3) that the lieutenant governor had no right to cast the deciding vote in the Senate in favor of ratification. Four opinions were written in the Supreme Court, no one of which commanded the support of more than four members of the Court. The majority ruled that the plaintiffs, members of the Kansas State Senate, had a sufficient interest in the controversy to give the federal courts jurisdiction to review the case. Without agreement as to the grounds for their decision, a different majority affirmed the judgment of the Kansas court denying the relief sought. Four members who concurred in the result had voted to dismiss the writ on the ground that the amending process "is 'political' in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point."[23] Whether the contention that the lieutenant governor should have been permitted to cast the deciding vote in favor of ratification presented a justiciable controversy was left undecided, the Court being equally divided on the point.[24] In an opinion reported as "the opinion of the Court," but in which it appears that only three Justices concurred, Chief Justice Hughes declared that the writ of mandamus was properly denied because the question as to the effect of the previous rejection of the amendment and the lapse of time since it was submitted to the States were political questions which should be left to Congress.[25] On the same day, the Court dismissed a writ of certiorari to review a decision of the Kentucky Court of Appeals declaring the action of the Kentucky General Assembly purporting to ratify the child labor amendment illegal and void. Inasmuch as the governor had forwarded the certified copy of the resolution to the Secretary of State before being served with a copy of the restraining order issued by the State court, the Supreme Court found that there was no longer a controversy susceptible of judicial determination.[26]
Notes
[1] II Madison, Journal of Debates in the Constitutional Convention, 385-386 (Hunt's ed., 1908).
[2] Cong. Globe, 1263 (1861).
[3] Ames, Herman V., Proposed Amendments to the Constitution, 363 (1896).
[4] Rhode Island v. Palmer, 253 U.S. 350, 386 (1920).
[5] Leser v. Garnett, 258 U.S. 130 (1922).
[6] Annals of Congress 433-436 (1789).
[7] Ibid. 717.
[8] Ibid. 430.
[9] Rhode Island v. Palmer, 253 U.S. 350, 386 (1920).
[10] Ibid.
[11] Hollingsworth v. Virginia, 3 Dall. 378 (1798).
[12] 256 U.S. 368, 375 (1921).
[13] 307 U.S. 433 (1939).
[14] 256 U.S. 368, 375 (1921).
[15] 282 U.S. 716 (1931).
[16] Hawke v. Smith, 253 U.S. 221, 231 (1920).
[17] Leser v. Garnett, 258 U.S. 130, 137 (1922).
[18] Leser v. Garnett, 258 U.S. 130, 137 (1922).
[19] 64 Stat. 979 (1950).
[20] 256 U.S. 368, 376 (1921).
[21] Leser v. Garnett, 258 U.S. 130 (1922).
[22] 307 U.S. 433 (1939). Cf. Fairchild v. Hughes, 258 U.S. 126 (1922), wherein the Court held that a private citizen could not sue in the federal courts to secure an indirect determination of the validity of a constitutional amendment about to be adopted.
[23] 307 U.S. 433, 459 (1939).
[24] Ibid. 446, 447.
[25] Ibid. 450, 456.
[26] Chandler v. Wise, 307 U.S. 474 (1939).
ARTICLE VI
MISCELLANEOUS PROVISIONS
Page Clause 1. Validity of debts and engagements 721 Clause 2. Supremacy of the Constitution, etc. 721 National supremacy 721 Marshall's interpretation of the clause 721 Supremacy Clause versus Tenth Amendment 722 Status of the issue today 723 Task of the Supreme Court under the clause 724 Federal instrumentalities and the State police power 725 Obligation of State courts under the Supremacy Clause 726 Immunity of the federal judicial process 727 Effect of laws passed by States in insurrection 728 Doctrine of tax exemption 728 McCulloch v. Maryland 728 Applicability of doctrine in re federal securities, etc. 729 Taxability of government contractors 730 Status of doctrine today 731 Ad valorem taxes under doctrine 732 Public property and functions 732 Fiscal institutions; legislative exemptions 733 Atomic Energy Commission 734 Royalties; a judicial anticlimax 734 Immunity of lessees of Indian lands 735 Summation and evaluation 735 Clause 3. Oath of office 736 Power of Congress in respect to oaths 736 National duties of State officers 736
MISCELLANEOUS PROVISIONS
Article VI
Clause 1. All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.
Clause 2. 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 every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
National Supremacy
MARSHALL'S INTERPRETATION OF THE CLAUSE
Although the Supreme Court had held prior to Marshall's appointment to the Bench, that the supremacy clause rendered null and void a State constitutional or statutory provision which was inconsistent with a treaty executed by the Federal Government,[1] it was left for him to develop the full significance of the clause as applied to acts of Congress. By his vigorous opinions in McCulloch v. Maryland[2] and Gibbons v. Ogden[3] he gave the principle a vitality which survived a century of vacillation under the doctrine of dual federalism. In the former case, he asserted broadly that "the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the Constitution has declared."[4] From this he concluded that a State tax upon notes issued by a branch of the Bank of the United States was void. In Gibbons v. Ogden, the Court held that certain statutes of New York granting an exclusive right to use steam navigation on the waters of the State were null and void insofar as they applied to vessels licensed by the United States to engage in coastwise trade. Said the Chief Justice: "In argument, however, it has been contended, that if a law passed by a State, in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by Congress in pursuance of the Constitution, they affect the subject, and each other, like equal opposing powers. But the framers of our Constitution foresaw this state of things, and provided for it, by declaring the supremacy not only of itself, but of the laws made in pursuance of it. The nullity of an act, inconsistent with the Constitution, is produced by the declaration, that the Constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such acts of the State legislatures as do not transcend their powers, but though enacted in the execution of acknowledged State powers, interfere with, or are contrary to the laws of Congress, made in pursuance of the Constitution, or some treaty made under the authority of the United States. In every such case, the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it."[5]
SUPREMACY CLAUSE VERSUS TENTH AMENDMENT
The logic of the supremacy clause would seem to require that the powers of Congress be determined by the fair reading of the express and implied grants contained in the Constitution itself, without reference to the powers of the States. For a century after Marshall's death, however, the Court proceeded on the theory that the Tenth Amendment had the effect of withdrawing various matters of internal police from the reach of power expressly committed to Congress. This point of view was originally put forward in New York v. Miln,[6] which was first argued, but not decided, before Marshall's death. The Miln Case involved a New York statute which required the captains of vessels entering New York Harbor with aliens aboard to make a report in writing to the Mayor of the City, giving certain prescribed information. It might have been distinguished from Gibbons v. Ogden on the ground that the statute involved in the earlier case conflicted with an act of Congress, whereas the Court found that no such conflict existed in this case. But the Court was unwilling to rest its decision on that distinction. Speaking for the majority, Justice Barbour seized the opportunity to proclaim a new doctrine. He wrote: "But we do not place our opinion on this ground. We choose rather to plant ourselves on what we consider impregnable positions. They are these: That a State has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That, by virtue of this, it is not only the right, but the bounden and solemn duty of a State, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation, which it may deem to be conducive to these ends; where the power over the particular subject, or the manner of its exercise is not surrendered or restrained, in the manner just stated. That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a State is complete, unqualified, and exclusive."[7] Justice Story, in dissent, stated that Marshall had heard the previous argument and reached the conclusion that the New York statute was unconstitutional.[8]
Status of the Issue Today
The conception of a "complete, unqualified and exclusive" police power residing in the States and limiting the powers of the National Government was endorsed by Chief Justice Taney ten years later in the License Cases.[9] In upholding State laws requiring licenses for the sale of alcoholic beverages, including those imported from other States or from foreign countries, he set up the Supreme Court as the final arbiter in drawing the line between the mutually exclusive, reciprocally limiting fields of power occupied by the National and State Governments.[10] This view has, in effect, and it would seem in theory also, been repudiated in recent cases upholding labor relations,[11] social security,[12] and fair labor standards acts[13] passed by Congress.
TASK OF THE SUPREME COURT UNDER THE CLAUSE
In applying the supremacy clause to subjects which have been regulated by Congress, the primary task of the Court is to ascertain whether a challenged State law is compatible with the policy expressed in the federal statute. When Congress condemns an act as unlawful, the extent and nature of the legal consequences of the condemnation are federal questions, the answers to which are to be derived from the statute and the policy which it has adopted. To the federal statute and policy, conflicting State law and policy must yield.[14] But Congress in enacting legislation within its constitutional authority will not be deemed to have intended to strike down a State statute to protect the health and safety of the public unless its purpose to do so is clearly manifested.[15]
When the United States performs its functions directly, through its own officers and employees, State police regulations clearly are inapplicable. In reversing the conviction of the governor of a national soldiers' home for serving oleomargarine in disregard of State law, the Court said that the federal officer was not "subject to the jurisdiction of the State in regard to those very matters of administration which are thus approved by Federal authority."[16] An employee of the Post Office Department is not required to submit to examination by State authorities concerning his competence and to pay a license fee before performing his official duty in driving a motor truck for transporting the mail.[17] To Arizona's complaint, in a suit to enjoin the construction of Boulder Dam, that her quasi-sovereignty would be invaded by the building of the dam without first securing approval of the State engineer as required by its laws, Justice Brandeis replied that, "if Congress has power to authorize the construction of the dam and reservoir, Wilbur [Secretary of the Interior] is under no obligation to submit the plans and specifications to the State Engineer for approval."[18]
FEDERAL INSTRUMENTALITIES AND THE STATE POLICE POWER
Federal instrumentalities and agencies have never enjoyed the same degree of immunity from State police regulation as from State taxation. The Court has looked to the nature of each regulation to determine whether it is compatible with the functions committed by Congress to the federal agency. This problem has arisen most often with reference to the applicability of State laws to the operation of national banks. Two correlative propositions have governed the decisions in these cases. The first was stated by Justice Miller in First National Bank v. Kentucky:[19] "[National banks are] subject to the laws of the State, and are governed in their daily course of business far more by the laws of the State than of the Nation. All their contracts are governed and construed by State laws. Their acquisition and transfer of property, their right to collect their debts, and their liability to be sued for debts, are all based on State law. It is only when the State law incapacitates the banks from discharging their duties to the government that it becomes unconstitutional."[20] In Davis v. Elmira Savings Bank,[21] the Court stated the second proposition thus: "National banks are instrumentalities of the Federal Government, created for a public purpose, and as such necessarily subject to the paramount authority of the United States. It follows that an attempt, by a State, to define their duties or control the conduct of their affairs is absolutely void, wherever such attempted exercise of authority expressly conflicts with the laws of the United States, and either frustrates the purpose of the national legislation or impairs the efficiency of these agencies of the Federal Government to discharge the duties, for the performance of which they were created."[22] Instructive, too, is a comparison of two other decisions. In the first,[23] the Court held that the fact that the Texas and Pacific Railway Company was a corporation organized under a statute of the United States did not remove it from the control of the Texas railroad commission as to business done wholly within the State. In the second,[24] the Court vetoed the attempt of Maryland to require a post office employee to cease driving a United States motor truck in the transportation of mail over a post road until he should obtain a license by submitting to examination before a State official and paying a fee. "Of course," said Justice Holmes, "an employee of the United States does not secure a general immunity from State law while acting in the course of his employment"; but this time the State went too far.
The extent to which States may go in regulating contractors who furnish goods or services to the Federal Government is not as clearly established as is their right to tax such dealers. In 1943, a closely divided Court sustained the refusal of the Pennsylvania Milk Control Commission to renew the license of a milk dealer who, in violation of State law, had sold milk to the United States for consumption by troops at an army camp located on land belonging to the State, at prices below the minima established by the Commission.[25] The majority was unable to find in Congressional legislation, or in the Constitution, unaided by Congressional enactment, any immunity from such price-fixing regulations. On the same day, a different majority held that California could not penalize a milk dealer for selling milk to the War Department at less than the minimum price fixed by State law where the sales and deliveries were made in a territory which had been ceded to the Federal Government by the State and were subject to the exclusive jurisdiction of the former.[26]
OBLIGATION OF STATE COURTS UNDER THE SUPREMACY CLAUSE
The Constitution, laws and treaties of the United States are as much a part of the law of every State as its own local laws and Constitution. Their obligation "is imperative upon the State judges, in their official and not merely in their private capacities. From the very nature of their judicial duties, they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely according to the laws or Constitution of the State, but according to the laws and treaties of the United States—'the supreme law of the land.'"[27] State courts have both the power and the duty to enforce obligations arising under federal law, unless Congress gives the federal courts exclusive jurisdiction. The power of State courts to entertain such suits was affirmed in Claflin v. Houseman[28] in 1876, thus setting at rest the doubts which had been raised by an early dictum of Justice Story.[29] In the Claflin case Justice Bradley asserted on behalf of a unanimous court that: "If an Act of Congress gives a penalty to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a State court. The fact that a State court derives its existence and functions from the State laws is no reason why it should not afford relief, because it is subject also to the laws of the United States, and is just as much bound to recognize these as operative within the State as it is to recognize the State laws."[30] When the Supreme Court of Connecticut held that rights created by the Federal Employer's Liability Acts could not be enforced in the courts of that State because the act was contrary to State policy, the Supreme Court unanimously reversed that decision. Said Justice Van Devanter: "The suggestion that the act of Congress is not in harmony with the policy of the State, and therefore that the courts of the State are free to decline jurisdiction, is quite inadmissible, because it presupposes what in legal contemplation does not exist. When Congress, in the exertion of the power confided to it by the Constitution, adopted that act, it spoke for all the people and all the States, and thereby established a policy for all. That policy is as much the policy of Connecticut as if the act had emanated from its own legislature, and should be respected accordingly in the courts of the State."[31] Even if a federal statute is penal in character, a State may not refuse to enforce it if Congress allows it to take concurrent jurisdiction. In Testa v. Katt,[32] the Supreme Court reversed a holding of Rhode Island's highest court that, inasmuch as a State need not enforce the penal laws of another jurisdiction, a suit for treble damages for violation of OPA regulations could not be maintained in the courts of the State. Without determining the nature of the statute, it affirmed once more without dissent that "the policy of the federal Act is the prevailing policy in every state."[33]
IMMUNITY OF THE FEDERAL JUDICIAL PROCESS
It would seem self-evident that a State court cannot interfere with the functioning of a federal tribunal. But this proposition has not always gone unchallenged. Shortly before the Civil War, the Supreme Court of Wisconsin, holding the federal fugitive slave law invalid, ordered a United States marshal to release a prisoner who had been convicted of aiding and abetting the escape of a fugitive slave. In a further act of defiance, the State court instructed its clerk to disregard and refuse obedience to the writ of error issued by the United States Supreme Court. Strongly denouncing this interference with federal authority, Chief Justice Taney held that when a State court is advised, on the return of a writ of habeas corpus, that the prisoner is in custody on authority of the United States, it can proceed no further.[34] To protect the performance of its functions against interference by State tribunals, Congress may constitutionally authorize the removal to a federal court of a criminal prosecution commenced in a State court against a revenue officer of the United States on account of any act done under color of his office.[35] In the celebrated case of Cunningham v. Neagle,[36] a United States marshal who, while assigned to protect Justice Field, killed the man who had been threatening the life of the latter, was charged with murder by the State of California. Invoking the supremacy clause, the Supreme Court held that a person could not be guilty of a crime under State law for doing what it was his duty to do as an officer of the United States.
EFFECT OF LAWS PASSED BY STATES IN INSURRECTION
Since the efforts of States to depart from the Union, if successful, would have been pro tanto a destruction of the Constitution,[37] the ordinances of secession adopted by the Confederate States,[38] and all acts of legislation intended to give effect to such ordinances,[39] were treated as absolute nullities. The obligation of every State, as a member of the Union, and the obligation of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired.[40] But acts necessary to peace and good order among citizens, such, for example, as acts sanctioning and protecting marriage and domestic relations, governing the course of descents, regulating the conveyance of property, real and personal, and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government, were regarded in general as valid when proceeding from an actual, though unlawful government.[41]
The Doctrine of Tax Exemption
McCULLOCH v. MARYLAND
Five years after the decision in McCulloch v. Maryland that a State may not tax an instrumentality of the Federal Government, the Court was asked to and did reexamine the entire question in Osborn v. Bank of the United States.[42] In that case counsel for the State of Ohio, whose attempt to tax the Bank was challenged, put forward two arguments of great importance. In the first place it was "contended, that, admitting Congress to possess the power, this exemption ought to have been expressly asserted in the act of incorporation; and, not being expressed, ought not to be implied by the Court."[43] To which Marshall replied that: "It is no unusual thing for an act of Congress to imply, without expressing, this very exemption from state control, which is said to be so objectionable in this instance."[44] Secondly the appellants relied "greatly on the distinction between the bank and the public institutions, such as the mint or the post-office. The agents in those offices are, it is said, officers of government, * * * Not so the directors of the bank. The connection of the government with the bank, is likened to that with contractors."[45] Marshall accepted this analogy, but not to the advantage of the appellants. He simply indicated that all contractors who dealt with the Government were entitled to immunity from taxation upon such transactions.[46] Thus not only was the decision of McCulloch v. Maryland reaffirmed but the foundation was laid for the vast expansion of the principle of immunity that was to follow in the succeeding decades.
APPLICABILITY OF DOCTRINE IN RE FEDERAL SECURITIES, ETC.
The first significant extension of the doctrine of the immunity of federal instrumentalities from State taxation came in Weston v. Charleston,[47] where Chief Justice Marshall also found in the supremacy clause a bar to State taxation of obligations of the United States. During the Civil War, when Congress authorized the issuance of legal tender notes, it explicitly declared that such notes, as well as United States bonds and other securities, should be exempt from State taxation.[48] A modified version of this section remains on the statute books today.[49] The right of Congress to exempt legal tender notes to the same extent as bonds was sustained in People v. Board of Supervisors[50] over the objection that such notes circulated as money and should be taxable in the same way as coin. But a State tax on checks issued by the Treasurer of the United States for interest accrued upon government bonds was sustained since it did not in any wise affect the credit of the National Government.[51] Similarly, the assessment for an ad valorem property tax of an open account for money due under a federal contract,[52] and the inclusion of the value of United States bonds owned by a decedent, in measuring an inheritance tax,[53] were held valid, since neither tax would substantially embarrass the power of the United States to secure credit.
Income from federal securities is also beyond the reach of the State taxing power as the cases now stand.[54] Nor can such a tax be imposed indirectly upon the stockholders on such part of the corporate dividends as corresponds to the part of the corporation's income which is not assessed, i.e., income from tax exempt bonds.[55] A State may constitutionally levy an excise tax on corporations for the privilege of doing business, and measure the tax by the property or net income of the corporation, including tax exempt United States securities or the income derived therefrom.[56] The designation of a tax is not controlling.[57] Where a so-called "license tax" upon insurance companies, measured by gross income, including interest on government bonds, was, in effect, a commutation tax levied in lieu of other taxation upon the personal property of the taxpayer, it was still held to amount to an unconstitutional tax on the bonds themselves.[58]
TAXATION OF GOVERNMENT CONTRACTORS
In the course of his opinion in Osborn v. Bank of the United States,[59] Chief Justice Marshall posed the question: "Can a contractor for supplying a military post with provisions, be restrained from making purchases within any state, or from transporting the provisions to the place at which the troops were stationed? or could he be fined or taxed for doing so? We have not yet heard these questions answered in the affirmative."[60] One hundred and thirteen years later, the Court did answer the last part of his inquiry in the affirmative. In James v. Dravo Contracting Company[61] it held that a State may impose an occupation tax upon an independent contractor, measured by his gross receipts under contracts with the United States. Previously it had sustained a gross receipts tax levied in lieu of a property tax upon the operator of an automobile stage line, who was engaged in carrying the mails as an independent contractor,[62] and an excise tax on gasoline sold to a contractor with the Federal Government and used to operate machinery in the construction of levees in the Mississippi River.[63] Subsequently it has approved State taxes on the net income of a government contractor,[64] income[65] and social security[66] taxes on the operators of bath houses maintained in a National Park under a lease from the United States; sales and use taxes on sales of beverages by a concessionaire in a National Park,[67] and on purchases of materials used by a contractor in the performance of a cost-plus contract with the United States,[68] and a severance tax imposed on a contractor who severed and purchased timber from lands owned by the United States.[69]
STATUS OF DOCTRINE TODAY
Of a piece with James v. Dravo Contracting Co. was the decision in Graves v. O'Keefe,[70] handed down two years later. Repudiating the theory "that a tax on income is legally or economically a tax on its source," the Court held that a State could levy a nondiscriminatory income tax upon the salary of an employee of a government corporation. In the opinion of the Court, Justice Stone intimated that Congress could not validly confer such an immunity upon federal employees. He wrote: "The burden, so far as it can be said to exist or to affect the government in any indirect or incidental way, is one which the Constitution presupposes; and hence it cannot rightly be deemed to be within an implied restriction upon the taxing power of the national and state governments which the Constitution has expressly granted to one and has confirmed to the other. The immunity is not one to be implied from the Constitution, because if allowed it would impose to an inadmissible extent a restriction on the taxing power which the Constitution has reserved to the state governments."[71] Chief Justice Hughes concurred in the result without opinion. Justices Butler and McReynolds dissented and Justice Frankfurter wrote a concurring opinion in which he reserved judgment as to "whether Congress may, by express legislation, relieve its functionaries from their civic obligations to pay for the benefits of the State governments under which they live...."[72]
AD VALOREM TAXES UNDER THE DOCTRINE
Property owned by a federally chartered corporation engaged in private business is subject to State and local ad valorem taxes. This was conceded in McCulloch v. Maryland,[73] and confirmed a half century later with respect to railroads incorporated by Congress.[74] Similarly, a property tax may be levied against the lands under water which are owned by a person holding a license under the Federal Water Power Act.[75] Land conveyed by the United States to a corporation for dry dock purposes was subject to a general property tax, despite a reservation in the conveyance of a right to free use of the dry dock and a provision for forfeiture in case of the continued unfitness of the dry dock for use, or the use of the land for other purposes.[76] Where equitable title has passed to the purchaser of land from the Government, a State may tax the equitable owner on the full value thereof, despite the retention of legal title by the Government,[77] but the equitable title passes otherwise.[78] Recently a divided Court held that where the Government purchased movable machinery and leased it to a private contractor, the lessee could not be taxed on the full value of the equipment.[79] In the pioneer case of Van Brocklin v. Tennessee,[80] the State was denied the right to sell for taxes lands which the United States owned at the time the taxes were levied, but in which it had ceased to have any interest at the time of sale. Nor can a State assess land in the hands of private owners for benefits from a road improvement completed while it was owned by the United States.[81]
PUBLIC PROPERTY AND FUNCTIONS
Property owned by the United States is, of course, wholly immune to State taxation.[82] No State can regulate, by the imposition of an inspection fee, any activity carried on by the United States directly through its own agents and employees.[83] An early case whose authority is now uncertain held invalid a flat rate tax on telegraphic messages, as applied to messages sent by public officers on official business.[84]
FISCAL INSTITUTIONS; LEGISLATIVE EXEMPTIONS
Fiscal institutions chartered by Congress, their shares and their property, are taxable only with the consent of Congress and only in conformity with the restrictions it has attached to its consent.[85] Immediately after the Supreme Court construed the statute authorizing the States to tax national bank shares as allowing a tax on the preferred shares of such a bank held by the Reconstruction Finance Corporation,[86] Congress passed a law exempting such shares from taxation. The Court upheld this measure saying, "when Congress authorized the States to impose such taxation, it did no more than gratuitously grant them political power which they theretofore lacked. Its sovereign power to revoke the grant remained unimpaired, the grant of the privilege being only a declaration of legislative policy changeable at will."[87] In Pittman v. Home Owners' Loan Corporation[88] the Court sustained the power of Congress under the necessary and proper clause to immunize the activities of the Corporation from state taxation; and in Federal Land Bank v. Bismarck Lumber Co.,[89] the like result was reached with respect to an attempt by the State to impose a retail sales tax on a sale of lumber and other building materials to the bank for use in repairing and improving property that had been acquired by foreclosure of mortgages. The State's principal argument proceeded thus: "Congress has authority to extend immunity only to the governmental functions of the federal land banks; the only governmental functions of the land banks are those performed by acting as depositaries and fiscal agents for the federal government and providing a market for governmental bonds; all other functions of the land banks are private; petitioner here was engaged in an activity incidental to its business of lending money, an essentially private function; therefore Sec. 26 cannot operate to strike down a sales tax upon purchases made in furtherance of petitioner's lending functions."[90] The Court rejected this argument and invalidated the tax saying: "The argument that the lending functions of the federal land banks are proprietary rather than governmental misconceives the nature of the federal government with respect to every function which it performs. The federal government is one of delegated powers, and from that it necessarily follows that any constitutional exercise of its delegated powers is governmental. * * * It also follows that, when Congress constitutionally creates a corporation through which the federal government lawfully acts, the activities of such corporation are governmental."[91] However, in the absence of federal legislation, a state law laying a percentage tax on the users of safety deposit services, measured by the banks' charges therefor, was held valid as applied to national banks. The tax, being on the user, did not, the Court held, impose an intrinsically unconstitutional burden on a federal instrumentality.[92]
THE ATOMIC ENERGY COMMISSION; "ACTIVITIES" OF
In the recent case of Carson v. Roane-Anderson Co.,[93] the Court was confronted with an attempt on the part of Tennessee to apply its tax on the use within the State of goods purchased elsewhere to a private contractor for the Atomic Energy Commission and to vendors of such contractors. This, the Court held, could not be done under Section 9 b of the Atomic Energy Commission Act, which provides in part that: "The Commission, and the property, activities, and income of the Commission, are hereby expressly exempted from taxation in any manner or form by any State, county, municipality, or any subdivision thereof."[94] The power of exemption, said the Court, "stems from the power to preserve and protect functions validly authorized—the power to make all laws necessary and proper for carrying into execution the powers vested in Congress."[95] The term, "activities," as used in the Act described, was held to be nothing less "than all of the functions of the Commission."[96]
ROYALTIES; A JUDICIAL ANTICLIMAX
In 1928 the Court went so far as to hold that a State could not tax as income royalties for the use of a patent issued by the United States.[97] This proposition was soon overruled in Fox Film Corp. v. Doyal,[98] where a privilege tax based on gross income and applicable to royalties from copyrights was upheld. Likewise a State may lay a franchise tax on corporations, measured by the net income from all sources, and applicable to income from copyright royalties.[99]
IMMUNITY OF LESSEES OF INDIAN LANDS
Another line of anomalous decisions conferring tax immunity upon lessees of restricted Indian lands was overruled in 1949. The first of these cases, Choctaw O. & G.R. Co. v. Harrison,[100] held that a gross production tax on oil, gas and other minerals was an occupational tax, and, as applied to a lessee of restricted Indian lands, was an unconstitutional burden on such lessee, who was deemed to be an instrumentality of the United States. Next the Court held the lease itself a federal instrumentality immune from taxation.[101] A modified gross production tax imposed in lieu of all ad valorem taxes was invalidated in two per curiam decisions.[102] In Gillespie v. Oklahoma[103] a tax upon the net income of the lessee derived from sales of his share of oil produced from restricted lands also was condemned. Finally a petroleum excise tax upon every barrel of oil produced in the State was held inapplicable to oil produced on restricted Indian lands.[104] In harmony with the trend to restricting immunity implied from the Constitution to activities of the Government itself, the Court overruled all these decisions in Oklahoma Tax Comm'n v. Texas Co. and held that a lessee of mineral rights in restricted Indian lands was subject to nondiscriminatory gross production and excise taxes, so long as Congress did not affirmatively grant them immunity.[105]
SUMMATION AND EVALUATION
Although McCulloch v. Maryland and Gibbons v. Ogden were expressions of a single thesis—the supremacy of the National Government—their development after Marshall's death has been sharply divergent. During the period when Gibbons v. Ogden was eclipsed by the theory of dual federalism, the doctrine of McCulloch v. Maryland was not merely followed but greatly extended as a restraint on State interference with federal instrumentalities. Conversely, the Court's recent return to Marshall's conception of the powers of Congress has coincided with a retreat from the more extreme positions taken in reliance upon McCulloch v. Maryland. Today the application of the supremacy clause is becoming, to an ever increasing degree, a matter of statutory interpretation—a determination of whether State regulations can be reconciled with the language and policy of federal enactments. In the field of taxation, the Court has all but wiped out the private immunities previously implied from the Constitution without explicit legislative command. Broadly speaking, the immunity which remains is limited to activities of the Government itself, and to that which is explicitly created by statute, e.g., that granted to federal securities and to fiscal institutions chartered by Congress. But the term, activities, will be broadly construed.
Clause 3. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Oath of Office
POWER OF CONGRESS IN RESPECT TO OATHS
Congress may require no other oath of fidelity to the Constitution, but it may superadd to this oath such other oath of office as its wisdom may require.[106] It may not, however, prescribe a test oath as a qualification for holding office, such an act being in effect an ex post facto law;[107] and the same rule holds in the case of the States.[108]
NATIONAL DUTIES OF STATE OFFICERS
Commenting in The Federalist No. 27 on the requirement that State officers, as well as members of the State legislatures, shall be bound by oath or affirmation to support this Constitution, Hamilton wrote: "Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and it will be rendered auxiliary to the enforcement of its laws." The younger Pinckney had expressed the same idea on the floor of the Philadelphia Convention: "They [the States] are the instruments upon which the Union must frequently depend for the support and execution of their powers, * * *"[109] Indeed, the Constitution itself lays many duties, both positive and negative, upon the different organs of State government,[110] and Congress may frequently add others, provided it does not require the State authorities to act outside their normal jurisdiction. Early Congressional legislation contains many illustrations of such action by Congress.
The Judiciary Act of 1789[111] left the State courts in sole possession of a large part of the jurisdiction over controversies between citizens of different States and in concurrent possession of the rest. By other sections of the same act State courts were authorized to entertain proceedings by the United States itself to enforce penalties and forfeitures under the revenue laws, while any justice of the peace or other magistrate of any of the States was authorized to cause any offender against the United States to be arrested and imprisoned or bailed under the usual mode of process. Even as late as 1839, Congress authorized all pecuniary penalties and forfeitures under the laws of the United States to be sued for before any court of competent jurisdiction in the State where the cause of action arose or where the offender might be found.[112] Pursuant also of the same idea of treating State governmental organs as available to the National Government for administrative purposes, the act of 1793 entrusted the rendition of fugitive slaves in part to national officials and in part of State officials and the rendition of fugitives from justice from one State to another exclusively to the State executives.[113] Certain later acts empowered State courts to entertain criminal prosecutions for forging paper of the Bank of the United States and for counterfeiting coin of the United States,[114] while still others conferred on State judges authority to admit aliens to national citizenship and provided penalties in case such judges should utter false certificates of naturalization—provisions which are still on the statute books.[115]
With the rise of the doctrine of States Rights and of the equal sovereignty of the States with the National Government, the availability of the former as instruments of the latter in the execution of its power, came to be questioned.[116] In Prigg v. Pennsylvania,[117] decided in 1842, the constitutionality of the provision of the act of 1793 making it the duty of State magistrates to act in the return of fugitive slaves was challenged; and in Kentucky v. Dennison,[118] decided on the eve of the Civil War, similar objection was leveled against the provision of the same act which made it "the duty" of the Chief Executive of a State to render up a fugitive from justice upon the demand of the Chief Executive of the State from which the fugitive had fled. The Court sustained both provisions, but upon the theory that the cooperation of the State authorities was purely voluntary. In the Prigg Case the Court, speaking by Justice Story, said: "* * * state magistrates may, if they choose, exercise the authority, [conferred by the act] unless prohibited by state legislation."[119] In the Dennison Case, "the duty" of State executives in the rendition of fugitives from justice was construed to be declaratory of a "moral duty." Said Chief Justice Taney for the Court: "The act does not provide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the Executive of the State; nor is there any clause or provision in the Constitution which arms the Government of the United States with this power. Indeed, such a power would place every State under the control and dominion of the General Government, even in the administration of its internal concerns and reserved rights. And we think it clear, that the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it; for if it possessed this power, it might overload the officer with duties which would fill up all his time, and disable him from performing his obligations to the State, and might impose on him duties of a character incompatible with the rank and dignity to which he was elevated by the State. It is true," the Chief Justice conceded, "that in the early days of the Government, Congress relied with confidence upon the co-operation and support of the States, when exercising the legitimate powers of the General Government, and were accustomed to receive it, [but this, he explained, was] upon principles of comity, and from a sense of mutual and common interest, where no such duty was imposed by the Constitution."[120]
Eighteen years later, in Ex parte Siebold[121] the Court sustained the right of Congress, under article I, section 4, paragraph 1 of the Constitution, to impose duties upon State election officials in connection with a Congressional election and to prescribe additional penalties for the violation by such officials of their duties under State law. While the doctrine of the holding is expressly confined to cases in which the National Government and the States enjoy "a concurrent power over the same subject matter," no attempt is made to catalogue such cases. Moreover, the outlook of Justice Bradley's opinion for the Court is decidedly nationalistic rather than dualistic, as is shown by the answer made to the contention of counsel "that the nature of sovereignty is such as to preclude the joint cooperation of two sovereigns, even in a matter in which they are mutually concerned." To this Justice Bradley replied: "As a general rule, it is no doubt expedient and wise that the operations of the State and national governments should, as far as practicable, be conducted separately, in order to avoid undue jealousies and jars and conflicts of jurisdiction and power. But there is no reason for laying this down as a rule of universal application. It should never be made to override the plain and manifest dictates of the Constitution itself. We cannot yield to such a transcendental view of state sovereignty. The Constitution and laws of the United States are the supreme law of the land, and to these every citizen of every State owes obedience, whether in his individual or official capacity."[122] Three years earlier the Court, speaking also by Justice Bradley, sustained a provision of the Bankruptcy Act of 1867 giving assignees a right to sue in State courts to recover the assets of a bankrupt. Said the Court: The statutes of the United States are as much the law of the land in any State as are those of the State; and although exclusive jurisdiction for their enforcement may be given to the federal courts, yet where it is not given, either expressly or by necessary implication, the State courts having competent jurisdiction in other respects, may be resorted to.[123]
The Selective Service Act of 1917[124] was enforced to a great extent through State "employees who functioned under State supervision";[125] and State officials were frequently employed by the National Government in the enforcement of National Prohibition.[126] Nowadays, there is constant cooperation, both in peacetime and in wartime, in many fields between National and State Officers and official bodies.[127] This relationship obviously calls for the active fidelity of both categories of officialdom to the Constitution.
Notes
[1] On the supremacy of treaties over conflicting State law, see pp. 414-418. The supremacy due to treaties has, within recent years, been extended to certain executive agreements. See Justice Douglas in United States v. Pink, 315 U.S. 203 (1942). As to the supremacy of Congressional legislation implementing the national judicial power, see Tennessee v. Davis, 100 U.S. 257, 266-267 (1880); and Ex parte Siebold, 100 U.S. 404 (1880).
[2] 4. Wheat. 316 (1819). Marshall had anticipated his argument in this case in 1805, in United States v. Fisher, 2 Cr. 358 (1805), in which he upheld the act of 1797 asserting for the United States a priority of its claims over those of the States. See Chief Justice Taft's opinion in Spokane County v. United States, 279 U.S. 80, 87 (1929), where United States v. Fisher is followed; also 1 Warren, Supreme Court in United States History, 372, 538 ff.
[3] 9 Wheat. 1 (1824).
[4] 4 Wheat. 316, 436 (1819).
[5] 9 Wheat. 1, 210-211 (1824).
[6] 11 Pet. 102 (1837).
[7] Ibid. 139.
[8] Ibid. 161.
[9] 5 How. 504 (1847).
[10] Ibid. 573-574.
[11] National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937).
[12] Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937).
[13] United States v. Darby, 312 U.S. 100 (1941); see especially ibid. 113-124.
[14] Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 170 (1942); Hill v. Florida, 325 U.S. 538 (1945); see also Testa v. Katt, 330 U.S. 380, 391 (1947); Francis v. Southern Pacific Co. 333 U.S. 445 (1918); and Bus Employers v. Wisconsin Board, 340 U.S. 383 (1951).
[15] Southern Pacific Co. v. Arizona, 825 U.S. 761 (1945); Rice v. Santa Fe Elevator Co., 331 U.S. 218, 230 (1947); Auto Workers v. Wis. Board, 336 U.S. 245, 253 (1949); United States v. Burnison, 339 U.S. 87, 91-92 (1950).
[16] Ohio v. Thomas, 173 U.S. 276, 283 (1899).
[17] Johnson v. Maryland, 254 U.S. 51 (1920).
[18] Arizona v. California, 283 U.S. 423, 451 (1931).
[19] 9 Wall. 353 (1870).
[20] Ibid. 362.
[21] 161 U.S. 275 (1896).
[22] Ibid. 283.
[23] Reagan v. Mercantile Trust Co., 154 U.S. 413 (1894).
[24] Johnson v. Maryland, 254 U.S. 51, 56 (1920).
[25] Penn Dairies v. Milk Control Comm'n., 318 U.S. 261 (1943).
[26] Pacific Coast Dairy v. Dept. of Agriculture, 318 U.S. 285 (1943).
[27] Martin v. Hunter's Lessee, 1 Wheat. 304, 335 (1816).
[28] 93 U.S. 130 (1876).
[29] Martin v. Hunter's Lessee, 1 Wheat. 304, 335 (1816).
[30] 93 U.S. 130, 137 (1876).
[31] Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1, 57 (1912).
[32] 330 U.S. 386 (1947).
[33] Ibid. 393.
[34] Ableman v. Booth, 21 How. 506, 523 (1859), followed in United States v. Tarble, 13 Wall. 397 (1872).
[35] Tennessee v. Davis, 100 U.S. 257 (1880); see also Maryland v. Soper, 270 U.S. 36 (1926).
[36] 135 U.S. 1 (1890).
[37] Keith v. Clark, 97 U.S. 454, 461 (1878).
[38] White v. Cannon, 6 Wall. 443, 450 (1868). See also Hickman v. Jones, 9 Wall. 197 (1870); Dewing v. Perdicaries, 96 U.S. 193, 195 (1878).
[39] Ford v. Surget, 97 U.S. 594, 604 (1878); United States v. Keehler, 9 Wall. 83, 86 (1870).
[40] Texas v. White, 7 Wall. 700, 726 (1869).
[41] Ibid. 733. See also Horn v. Lockhart, 17 Wall. 570, 580 (1873); Thomas v. Richmond, 12 Wall. 349, 357 (1871); White v. Hart, 13 Wall. 646 (1872); United States v. Home Ins. Co., 22 Wall. 99 (1875); Taylor v. Thomas, 22 Wall. 479 (1875); and Huntington v. Texas, 16 Wall. 402 (1873).
[42] 9 Wheat. 788 (1924).
[43] Ibid. 865.
[44] Ibid.
[45] Ibid. 866.
[46] Ibid. 867.
[47] 2 Pet. 449 (1829), followed in New York ex rel. Bank of Commerce v. Comrs. of Taxes and Assessments, 2 Bl. 620 (1863).
[48] 12 Stat. 710 (1863).
[49] 31 U.S.C. Sec. 742 (1946).
[50] 7 Wall. 26 (1869).
[51] Hibernia Sav. & L. Soc. v. San Francisco, 200 U.S. 310, 315 (1906).
[52] Smith v. Davis, 323 U.S. 111 (1944).
[53] Plummer v. Coler, 178 U.S. 115 (1900); Blodgett v. Silberman, 277 U.S. 1, 12 (1928).
[54] Northwestern Mutual L. Ins. Co. v. Wisconsin, 275 U.S. 136, 140 (1927).
[55] Miller v. Milwaukee, 272 U.S. 713 (1927).
[56] Provident Inst. for Savings v. Massachusetts, 6 Wall. 611 (1868); Society for Savings v. Coite, 6 Wall. 594 (1868); Hamilton Mfg. Co. v. Massachusetts, 6 Wall. 632 (1868); Home Ins. Co. v. New York, 134 U.S. 594 (1890).
[57] Macallen v. Massachusetts, 279 U.S. 620, 625 (1929).
[58] Northwestern Mutual L. Ins. Co. v. Wisconsin, 275 U.S. 136 (1927).
[59] 9 Wheat. 738 (1824).
[60] Ibid. 867.
[61] 302 U.S. 134 (1937).
[62] Alward v. Johnson, 282 U.S. 509 (1931).
[63] Trinityfarm Const. Co. v. Grosjean, 291 U.S. 466 (1934).
[64] Atkinson v. Tax Commission, 303 U.S. 20 (1938).
[65] Superior Bath House Co. v. McCarroll, 312 U.S. 176 (1941).
[66] Buckstaff Bath House v. McKinley, 308 U.S. 358 (1939).
[67] Collins v. Yosemite Park & Curry Co., 304 U.S. 518 (1938).
[68] Alabama v. King & Boozer, 314 U.S. 1 (1941), overruling Panhandle Oil Co. v. Knox, 277 U.S. 218 (1928) and Graves v. Texas Co., 298 U.S. 393 (1936). See also Curry v. United States, 314 U.S. 14 (1941).
[69] Wilson v. Cook, 327 U.S. 474 (1946).
[70] 306 U.S. 466 (1939), followed in State Tax Comm'n. v. Van Cott, 306 U.S. 511 (1939). This case overruled by implication Dobbins v. Erie County, 16 Pet. 435 (1842) and New York ex rel. Rogers v. Graves, 299 U.S. 401 (1937), which held the income of federal employees to be immune from State taxation. |
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