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franchise and permitting^certain fares was not a contract immime from
the power of the state commission to regulate the charges. The facts
are so concealed in the opinion that it is difficult to tell just what the
case stands for. In Union Dry Goods Co. v. Georgia PubUc Service Cor-
poration/^ the plaintiff had to be told that it could not, by making a
contract with an electric light company for certain rates for a term of
five years, defeat the power of the state to authorize the service cor-
poration to charge more. It chanced that the commission was vested
with power before the making of the contract reUed on, but this does
not appear to have been regarded as important. Mr. Justice Clarke
remarked rather tartly that the decisions which he cites ''should suffice
to satisfy the most skeptical or belated investigator that the right of
private contract must yield to the exigencies of the public welfare when
determined in an appropriate maimer by the authority of tha state."

In two cases writs of error were dismissed for want of jurisdiction
because it did not appear that the state decisions complained of gave

»" (1919) 249 U. S. 540, 39 Sup. Ct. 371.

»» (1919) 250 U. S. 394, 39 Sup. Ct. 626.

*« (1919) 248 U. S. 294, 39 Sup. Ct. 100. See 17 Michigan Law Review 429.

»* a919) 248 U. S. 372, 39 Sup. Ct. 117.

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any effect to a law of the state subsequent to the alleged contract.
United States Fidelity & Guaranty Co. v. Oklahoma^^ involved a
state decision which held that a surety company which had guaranteed
a bank deposit was not entitled to exoneration from the bank and to
contribution from the state depositors' guaranty fund. The Supreme
Court found that the state court had predicated the result on a line of
state decisions which tended to support it and not on a state statute
passed after the execution of the bond. The opinion of Mr. Justice
McBeynolds contents itself with referring to the leading state decision
without presenting its doctrine or its reasoning, so that we are left
without the necessary data to enable us to judge the merits of the
contention denied. The state decision left undisturbed by Farson, Son
& Co. V. Bird^^ had denied a mandamus against a county treasurer
on the groimd that the only remedy of the bondholder was against
the coimty board of revenue. This was held to be a decision on a mere
question of procedure and not to deny contract rights of the creditors,
especially in view of the fact that a later decision of the state court had
authorized mandamus proceedings against the board of revenue.

Another impecunious coimty was involved in Missouri & Arkansas
Lumber & Mining Co. v.. Greenwood District*^ which allowed a state
statute providing that judgments on county indebtedness should not
bear interest to be applied to judgments rendered before its enactment.
It was not contended that a judgment was a contract, but it was
urged that judgments which by their terms bore interest at a designated
rate could not be changed by subsequent legislation consistently with
due process of law. An earlier decision was sought to be distinguished
on the ground that the judgment there involved did not specify the
rate of interest, but the court answered that "the mere recital of a
particular rate does not change the nature of the charge as a penalty
or liquidated damages." The earlier decision had held that the
allowance of interest on judgments was not a matter of contract but
one of legislative discretion which could be altered from time to time
as to any interest not then accrued. In the principal case it was noted
that the warrants for which the judgment was rendered were non-
interest bearing, and it was recognized that, if this had not been the
case, ''a different question would have been presented."

">* (1919) 250 U. S. Ill, 39 Sup. Ct. 399.
w» (1919) 248 U. S. 2S8, 39 Sup. Ct. 111.
»•• (1919) 249 U. S. 170, 39 Sup. Ct. 202.

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The only successful reliance on the obligation-of-contracts clause
was in Central of Georgia Ry. Co. v. Wright^®^ which found that an
attempt to tax the lessees of a railroad on their leasehold interests
violated the original contract in the charter of the lessor railroad
prescribing the exclusive mode of taxation. It had previously been
held that the property itself could not be taxed to the lessees, and the
present tax was said to be an attempt to accomplish by a change of
form what had already been held forbidden. In this case it was the
constitution of the state which constituted the law impairing the
obligation of the contract.

The cases remaining for consideration involve objections to con-
gressional legislation which are predicated upon the due-process clause
of the Fifth Amendment. Fink .v. County Commissioners^®* allowed
Indian lands which when allotted were declared nontaxable and in-
alienable for a term of years to be made alienable and taxable in the
hands of an alienee. For all that appears the original exemption was
regarded as contractual, though the question is not considered. The
case is disposed of on the ground that "it invades no right of the
Indian .... to make the alienation of the land a surrender of
the exemption from taxation." While the opinion specifically left
undecided the question "whether a grantee of an Indian could avail
himself of the Indian's right, if he had any, to assert the unconstitu-
tionality of an act of Congress," it expressed approval of the
decision of the state court that the alienee who acquired the
opportunity to purchase the land only through the removal of the
prior restriction on alienation, cannot repudiate the (Conditions on
which the restriction is removed. On the economics of the legislation
so far as it afiFects the interests of the Indian, Mr. Justice McKenna
observed: "It is an error to suppose that this takes anything of value
from the Indian. We may here invoke the commonplace, for it is a
conmionplace to say that we only know the value of a thing by that
which makes its worth. Under the restriction against the alienation
the land had no worth but in its uses; the restriction removed, it had
the added worth of exchangeability for other things — a power of sale
was conferred. To say there was no value in that power is to con-
tradict the examples and estimations of the world."

»^ (1919) 248 U. S. 525, 39 Sup. Ct. 181.
I" (1919) 248 U. S. 399, 39 Sup. Ct. 128.

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In Capital Trust Co. v. Calhoun*®* an attorney who had a contract
with his client for a lien upon the amount which he should collect for
him from the government objected because the congressional legis-
lation making an appropriation for the payment of the claim restricted
the amoimt which the attorney should receive from the proceeds to
less than the percentage agreed by the client. The case arose in
proceedings against the deceased client's administrator and it chanced
that the only fimds in his possession were those received from the
government. The power of the government to restrict payment from
those funds was sustained on the theory that legislation was necessary
to the recovery of anything from the government and that the favor
bestowed must be taken by all interested subject to the limitations
contained in the grant. The court pointed out that it did not pass on
the question whether the contract could be enforced against assets
not received from the government.


In three cases, convictions under the Espionage Act of 1917 were
sustained notwithstanding the objection that, since the offense charged
consisted solely of written or spoken utterances, the result was a
violation of the First Amendment prohibiting Congress from making
any law "abridging the freedom of speech or of the press." The
defendants had been found guilty of attempts or conspiracies to ob-
struct recruiting. In no case was it proven that the obstruction has
occurred. Mr. Justice Holmes implied that the First Amendment im-
poses restriction on punishment for the use of language as well as on
the use of the censorship. In Schenck v. United States^^® he says:
"We admit that in many places and in ordinary times the defendants
in saying all that was said in the circular would have been within their
constitutional rights. But the character of every act depends upon

the circumstances in which it is done The question in every

case is whether the words used are used in such circumstances and are
of such a nature as to create a clear and present danger that they will

1" (1919) 250 V. S. 208, 39 Sup. Ct. 486, 13 American Political Science Re-
view 621.

"» (1919) 249 U. S. 47, 39 Sup. Ct. 247. See Zechariah Chafee, Jr., ''Freedom
of Speech in War Time," 32 Harvard Law Review 932, and Thomas F. Carroll,
"Freedom of Speech and of the Press in War Time," 17 Michigan Law Review 621,
for discussions of all the Espionage Cases. Mr. Chafee' s article contains an ex-
haustive bibliography on the subject of Freedom of speech.

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bring about the substantive evils that Congress has a right to prevent.
It is a question of proximity and degree. When a nation is at war,
many things that might be said in time of peace are such a hindrance
to its effort that their utterance will not be endured so long as men
fight and that no Court could regard them as protected by any con-
stitutional right."

It is thus apparent that the practical effect of the free speech amend-
ment depends upon the scrutiny which an appellate court casts at the
relation between the evidence offered and the verdict of the jury. In
Frohwerk v. United States"^ it was remarked that "we do not lose our
right to condemn either measures or men because the country is at
war" and it was said of the case before the court: "It does not appear
that there was any special effort to reach men who were subject to the
draft; and if the evidence should show that the defendant was a poor
^man, turning out copy for Gleeser, his employer, at less than a day
laborer's pay, for Gleeser to use or reject as he saw fit, in a newspaper
of small circulation, there would be a natural inclination to test every
question of law to be found in the record very thoroughly before up-
holding the very severe penalty imposed." This certainly hints that
the Supreme Court may hold- as a matter of law that the likelihood of
any harm ensuing from the objectionable publication is so slim that a
conviction is unwarranted. But Mr. Justice Holmes goes on to say:
"But we must take the case on the record as it is, and on that record
it is impossible to say that it might not have been found that the
circulation of the paper was in quarters where a little breath would
be enough to kindle a flame and that the fact was known and relied
upon by those who sent the paper out." This implies that the verdict
of the jury will be set aside only where the court finds it impossible
for a reasonable man to infer that harm might ensue from what was
said, and considerably weakens the declaration in the Schenck case
that the question is whether the words are so used as to create a clear
and present danger of substantive evils.

The opinion in Debs v. United States^" adds little to the previous
discussion except to point out that expressions which, under all the
circumstances, would probably obstruct recruiting, are not protected
because "part of a general program and expressions of a general and
conscientious belief." The three cases can be fully understood only
in the light of all the utterances involved. Space forbids their eniunera-

*« (1919) 249 U. S. 204, 39 Sup. Ct. 249.
"• (1919) 249 U. S. 211, 39 Sup. Ct. 262.

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tion here, but there can be no doubt that all had pretty clearly implied
nobility in any one who refused to acquiesce in the draft or contribute
to the prosecution of the war. Further constitutional questions may
be raised by convictions under the Espionage Act of 1918 which is
broad enough in its terms to punish almost any cantankerous or grum-
bling remarks about the conduct of the war.

Among minor points involved in the Espionage Law Cases are that
documentary evidence is not inadmissible because obtained on a
search warrant which is valid so far as appears, that a single count in
an indictment for conspiring to commit two offenses is not bad for
duplicity when the conspiracy is the crime and is single, however
diverse its objects, and that the fact that the offense charged might
constitute treason does not prevent its punishment as something else
or the fact that it is not treason render it immime from punishment.

That judges are limited by the Fifth Amendment in committing for ^
contempt was laid down in Ex parte Hudgings^^' in which a commit-
ment for supposed perjury was set aside as void for excess of power,
since it did not appear that the supposed perjury had any obstructive
effect on the course of justice or that the commitment was based on
any other considerations than the mere fact of perjury. On the con-
stitutional question Chief Justice White declared: ''Existing within
the limits of and sanctioned by the Constitution, the power to punish
for contempt committed in the presence of the court is not controlled
by the limitations of the Constitution as to modes of accusation and
methods of trial generally safeguarding the rights of the citizen. This,
however, expresses no purpose to exempt judicial authority from con-
stitutional limitations, since its great and only purpose is to secure
judicial authority from obstruction in the performance of its duties
to the end that means appropriate for the preservation and enforcement
of the Constitution may be secured."

It is not wholly clear that the decision in Blair v. United States^^^
rested on constitutional grounds. Some Michigan persons were sub-
poenaed to testify before a federal grand jury in New York which was
investigating an alleged violation of the Corrupt Practices Act in con-
nection with verifying and filing in New York some reports with
regard to a primary election in Michigan for nomination as United
States senator. The witnesses came to New York but refused to
answer questions on the grounds that the grand jury was without

"» (1919) 249 U. S. 378, 39 Sup. Ct. 337. Mr. Justice Pitney dissents.
"* (1919) 250 U. S. 273, 39 Sup. Ct. 468.

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coNSTTnrriONAL LAW IN 1918-1919 67

jurisdiction and that the Corrupt Practices Act was unconstitutional.
They were committed for contempt, writs of habeas corpus were
obtained and discharged and the complaints came to the Supreme
Court. It was there held that the constitutionality of the Corrupt
Practices Act was no concern of the defendants and would not be
coiisidered. It was further held that witnesses summoned before a
grand jury cannot question the jurisdiction of the court or jury over
the subject matter under investigatioui nor urge objections of incom-
petency or irrelevancy to the questions asked. The duty to testify
was declared to be a public duty "which every person within the
jurisdiction of the government is bound to perform upon being properly
summoned, and for the performance of which he is entitled to no
further compensation than that which the statutes provide/'



Disputes involving the question whether a case arises under the
Constitution of the United States have so far as seemed feasible been
chronicled under the topics to which the substantive issue belonged.
One vagabond remains for consideration. Petrie v. Nampa A Merid-
ian Irrigation District^"^ dismissed a writ of error from a state court
because the Supreme Court f oimd that the sfate court, even though it
had passed adversely on a federal question, had also decided the case
on an independent ground broad enough to sustain the judgment.
Tins independent ground was that the cross-complaint under which
the federal right was asserted was filed prematurely.

Two cases held that the suit did not arise under a law of the United
States. Odell v. F. C. Famsworth Co."* was found to be merely a
suit for royalties imder a contract and not one involving any con-
struction of the patent laws. Matters v. Ryan"^ was a habeas corpus
proceeding to secure custody of a child. The controlling question in
the case was the maternity of the child. The allegation in the com-
plaint that the pretended mother brought the child from Canada with-
out complying with the immigration laws was foimd not to arise under
those laws since the petitioner had no power to champion their

"• (1918) 248 U. S. 164, 39 Sup. Ct. 25.
"• (1919) 260 U. S. 601, 39 Sup. Ct. 516.
1" (1919) 249 U. «. 375, 39 Sup. Ct. 315.

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Two cases were found not to arise under a treaty. The contention
in Cordova v. Grant"' wafe that the treaty between Mexico and the
United States prohibited the courts from dealing with the title to
disputed land until the boundary was established. The United States
and Texas had for many years exercised jurisdiction over the tract in
dispute. In sustaining the exercise of jurisdiction below, Mr. Justice
Holmes declared that it "simply means that the Court finds the
Government in fact asserting its authority over the territory and will
follow its lead/' adding: "It does not matter to such a decision that
the Government recognizes that a foreign power is disputing its right
and that it is making efforts to settle the dispute Juris-
diction is power and matter of fact. The United States has that
power and the Courts may exercise their portion of it unless prohibited
in some constitutional way." In holding that the treaty was not
involved in the dispute, the court is following the established doctrine
that whatever the treaty may mean the court must follow the inter-
pretation of the political authorities. The issue arose before the
Supreme Court because of the contention that the presence of a question
imder the treaty made the decision of the district court subject to
direct review in the Supreme Court. Jurisdiction below was obtained
by reason of diversity of citizenship.

In Compania General De Tabacos v. Alhambra Cigar & Cigarette
Mfg. Co."* the right to appeal to the Supreme Court from the supreme
court of the Phihppine Islands depended upon whether the case in-
volved the treaty with Spain continuing in force rights of property
secured by patent and cop3rright prior to the cession of the islands.
The court below had held that the trade name involved was a geo-
graphical or descriptive name incapable of registration imder Philip-
pine statutes or the law as it existed under the Spanish r^ime. In
holding that no right secured by the treaty was involved, Mr. Justice
Day declared: "Certainly the treaty, in providing that property rights
of this class should be respected, did not intend to prevent the con-
sideration by the courts of the nature and extent of the rights granted,
or prohibit the application of laws for the enforcement and regulation
of such property rights when not in derogation of the treaty." The
groimds of the decision below were said to be "entirely compatible
with continued respect for the trade-mark and trade-name rights
granted by the Spanish sovereignty."

"• (1919) 248 U. S. 413, 39 Sup. Ct. 138.
"• (1919) 249 U. S. 72, 39 Sup. Ot. 224.

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Questions as to the extent and exercise of admiralty jurisdiction
arose in three cases. In The Scow 6 S.,^ which was a libel in rem for
penalties against a scow for illegal djunping in New York Harbor, the
determining question was one of statutory construction, but in the
course of the opinion Mr. Justice Pitney observed that ''there is no
difficulty, on constitutional or other groimds, about assessing an im-
liquidated fine in the admiralty." Union Fish Co. v. Erickson"^ held
that a contract for service on a vessel is maritime in nature and that
its enforcement in admiralty is not controlled by the state statute of
frauds. North Pacific S. S. Co. v. Hall Brothers Marine Ry. A Ship-
building Co.^" declared that the contract for repairs of a wrecked
vessel was maritime in nature, even though the repairs were to be
done largely on land imder the direction of the shipowner and at
designated rates of compensation for the various services rendered and
the materials furnished. Contentions that the repairs were in sub-
stance new construction and that the contract was in effect a lease of
the shipbuilders yards and facilities were held to be unfoimded.


The attempt of Kentucky to gain jurisdiction over nonresident
individuals doing business within the state through an agent by service
of process on the agent was frustrated by the Supreme Court in Flexner
v. Farson^ which held that Illinois was not required to recognize a
Kentucky judgment founded solely upon service on such agent who
at the time of service had ceased to be agent. In deciding the case
Mr. Justice Holmes said: ''It is argued that the pleas tacitly admit
that Washington Flexner was agent of the firms at the time of the
transaction sued upon in Kentucky, and the Kentucky statute is
construed as purporting to make him agent to receive service in suits
arising out of the business done in that State. On this construction it
is said that the defendants by doing business in the State consented to
be bound by the service prescribed. The analogy of suits against

^^ (1919) 250 U. 8. 269, 39 Sup. Ct. 452.

»i (1919) 248 U. 8. 308, 39 Sup. Ct. 112. See 17 Michigan Law Revxeto 691, and
28 Yale Law Journal 500.

^ (1919) 249 U. S. 119, 39 Sup. Ct. 221. See 32 Harvard Law Review 853, and
28 Yale Law Journal 697.

"• (1919) 248 U. S. 289, 39 Sup. Ct. 97. See Austin .W. Scott, "Jurisdiction
Over Non-residents Doing Business Within a State," 32 Harvard Law Review 871.
See also 3 Minnesota Law Review 277, and 28 Yale Law Journal 512.

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insurance companies based upon such service is invoked

But the consent that is said to be implied in such cases is a mere
fiction, foimded upon the accepted doctrine that the States could
exclude foreign corporations altogether, and therefore could establish

this obligation as a condition to letting them in The

State had no power to exclude the defendants and on that groimd
without going farther the Supreme Court of Illinois rightly held that
the analogy failed, and that the Kentucky judgment was void. If the
Kentucky statute purports to have the effect attributed to it, it cannot
have that effect in the present case." This seems sufficiently enigmatic
to enable the Supreme Court to declare later that it means that a personal
judgment can never be rendered against a nonresident individual with-
out personal service within the state, or that it means only that service
on an ex-agent is insufficient.


Mr. Berkman, the anarchist, deposited with the clerk of the district
court a sum of money in lieu of bail. After his conviction he desired
the cash returned, but the clerk retained one per cent by virtue of a
statute fixing such a fee "for receiving, keeping, and paying out
money, in pin^uance of any statute or order of court." Mr. Berkman
thought that this deprived him of property without due process, took
his property for public use without just compensation, and deprived
him of the privileges and immunities of a citizen of the United States.
The Supreme Court thought otherwise and so held in Berkman v.
United States.^** Mr. Justice McReynolds for the majority declared
that the suggested constitutional questions were wholly wanting in
merit and too unsubstantial even to raise an issue to give the Supreme
Court jurisdiction on the writ of error. Justices Hohnes and ferandeis
dissented but without giving their reasons. We do not know, there-
fore, whether they merely thought the contentions of sufficient merit
to be considered or whether they went further and thought them worthy
of acceptation. If the latter, it does not seem courteous of the ma-
jority to declare that the matter is "too clear for serious discussion."

Online LibraryWestel Woodbury WilloughbyThe American political science review → online text (page 7 of 77)