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1" (1919) 260 U. S. 114, 39 Sup. Ct. 411.



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CONSTITUTIONAL LAW IN 1918-1919 71

FAITH AND CREDIT TO PROCEEDINOS OF SISTER STATES

The full faith and credit clause was unsuccessfully adduced by two
insurance companies which relied on the recent tendency of the Supreme
Court to prevent diverse holdings in different states as to the powers
of a corporation^ and to nullify attempts on the part of a state to
use its power over acts within its borders to control acts without."*
The statute objected to in American Fire Insurance Co. v. King
Lumber & Mfg. Co."^ made the person who solicits insurance and pro-,
cures applications the agent of the insurer notwithstanding an3rthing in
the policy to the contrary. But the court found that the statute did
not attempt to invade another state and exercise control there but
''stays strictly at home in this record and regulates the insurance
company when it comes to the state to do business with the citizens
of the state and their property."

Hartford Life Insurance Co. v. Johnson"' went off on the ground
that the constitutional question had not been seasonably raised in the
state comt. The determining question in a suit in Missouri against a
Connecticut insurance company was whether an assessment on the
policy holder was validly levied. The Missouri court held that it was
not, and refused to give any effect to a Connecticut judgment of con-
trary tenor rendered between the trial and the hearing on appeal of
the Missouri suit. It was conceded that the Connecticut judgment if
seasonably pleaded in the Missouri court must defeat the Missouri
action, but the Supreme Court held that the Missouri decision
followed the established practice in the coiu-ts of that state and waf not
rendered in a spirit of evasion for the purpose of defeating the claim of
federal right. It followed, therefore, that the federal question was
rightly refused consideration below and so was not before the Supreme
Court.

The company also objected that the Missouri court failed to give
full faith and credit to the Connecticut charter. On this point Mr.
Justice Clarke declared: ''Even if this charter, which was granted by
a resolution of the Assembly of Connecticut, be regarded as a public
act or record of that state within the scope of the constitutional pro-
vision (article 4, section 1), which is not decided, nevertheless since

^'* See cases reviewed in 12 American Political Science Review 662-64, and 13
American Political Science Review 246-47.

^•* See 13 American Political Science Review 24^,

1" (1919) 260 U. S. 2, 39 Sup. Ct. 431, 13 American Political Science Review 627.

"• (1919) 249 U. S. 490, 39 Sup, Ct. 336.



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72 THE AMERICAN POLITICAL SCIENCE BBVIEW

no statute of Connecticut or decision of any court of that state was
pleaded or introduced in evidence in this case^ giving a construction to
the provisions of the charter which the Missouri courts, treating as
valid, interpreted, the exercise by those courts of an independent judg-
ment in placing a construction upon it cannot present a federal question
under the full faith and credit clause of the Constitution." Thus the
hint thrown out in earlier cases that sister states must follow the home
state of a corporation in interpreting its charter, even when the matter
has not been specifically adjudicated in the home state in a proceeding
to which the litigants in the sister state are parties or privies, still
remains to be confirmed by explicit decision.

XI. ADMINISTRATIVE POWER AND PROCEDURE

The power vested in the secretary of war to fix the limits within
which houses of ill fame within the neighborhood of army posts should
be suppressed was upheld in McKinley v. United States,^* as one
of the "mere details" of the legislation.

The question whether an administrative order complained of was
a ''law of the state" so as to bring a dispute concerning it within the
jurisdiction of the federal courts arose in two cases. Lake Erie & W.
R. Co. V. Public Utilities Commission"® held that an order to a rail-
road to restore a side track was legislative in character and so to be
regarded as a state law. But Standard Computing Scale Co. v.
FarrelF^ found that instructions issued by the state superintendent of
weights and measures with respect to the proper equipment of scales
were not a law, but mere suggestions, since the local officials to whom
the so-called instructions were issued were not subordinates of the
state superintendent nor subject to his control.

Three cases involved the question whether the determinations of
administrative officials were final and conclusive. United States v.
Laughlin"* depended upon the construction of a statute providing
that ''in all cases where it shall appear to the satisfaction of the Secre-
tary of the Interior" that a person has made payments under the
public land laws in excess of the lawful amount, a refund shall be made.
The secretary contended that it rested in his uncontrolled discretion

»» (1919) 249 U. S. 397, 39 Sup. Ct. 324, 13 American Political Science Review 620.
»*> (1919) 249 U. S. 422, 39 Sup. Ct. 345, 13 American Political Science Review 630.
"I (1919) 249 U. S. 571, 39 Sup. Ct. 380.
1" (1919) 249 U. S. 440, 39 Sup. Ct. 340.



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CONSTITUTIONAL LAW IN 1918-1919 73

to direct repayment, but the court held that it was the intent of Congress
that he should have exclusive jurisdiction only to determine disputed
questions of fact. Since his decision in the case before the court had
been rested wholly on a question of law, the Supreme Court held it
reviewable. Mr. Justice Pitney remarked that imder the construction
urged by the secretary the legislative power would in effect be delegated
to him, but did not say whether this would be imconstitutional.^"

Houston V. St. Louis Independent Packing Co.^" and Brougham v.
Blanton Mfg. Co.^'*^ sustained determinations of the secretary of agri-
culture that certain trade names were false and deceptive under the
Meat Inspection Act, under the principle that "the conclusion of the
head of an executive department on such a question will not be reviewed
by the courts, where it is fairly arrived at and with substantial evidence
to support it." Both cases reversed decrees of the circuit coiirt of
appeals granting relief to the complainants'. The opinions of the
Supreme Court considered the evidence sufficiently to reach the con-
clusion that the determination of the secretary was not arbitrary.

^« In Lane v. Darlington, (1919) 249 U. S. 331, 39 Sup. Ct. 299, the Supreme
Court set aside an injunction awarded by the court below in favor of an owner of
land bordering on government land forbidding a resurvey of government land on
the direction of the secretary of the interior. The opinion of the Supreme Court
said that, as the whole proceeding was merely an effort by the United States to
determine the boundary of its own land, **we know of no warrant for the notion
that the power is exhausted by a single exercise of it." It was recognized that
''the case is different when the act of the secretary is directed to a third person,
as, for instance, the approval of a map of the location of a railroad over public
lands, where the approval operates as a grant."

^** (1919) 249 U. S. 479, 39 Sup. Ct. 332.

"* (1919) 249 U. S. 495, 39 Sup. Ct. 3«3.



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AMERICAN GOVERNMENT AND POLITICS

LINDSAY ROGERS
University of Virginia

The Special Session of Congress.^ Problems left unsolved rather
than measures which were passed are the noteworthy f eatiires of the
special session of the Sixty-sixth Congress — ^from May 19 to November
19, 1919. The senate was almost exclusively occupied with the Peace
Treaty, the session ending in a deadlock over the reservations to the
League of Nations covenant; and the treaty, together with the Anglo-
French-American alliance and the other agreements of the Paris Con-
ference, went over to the regular session. The appropriation bills, a
resolution submitting the woman suffrage amendment to the states, the
repeal of daylight saving,^ and the prohibition enforcement law, constitute
the most important legislation which was completed. The two latter
measures were passed over the President's veto and evidenced a dis-
position on the part of Congress to reassert the authority which during
the war had been limited by presidential control. The house of rep-
resentatives approved a bill — which was badly mutilated before its

^ For a review of the last session of the Sixty-fifth Congress, see American
Political Science Review^ XIII, 251 (1910).

* The agricultural appropriation bill (H.R. 3157) contained a rider which re-
pealed the daylight saving law. On this account President Wilson vetoed the
whole measure. fUxe house voted on July 14, 248 to 135, to pass the bill over the
President' s veto, the attempt failing for want of the necessary two-thirds. A new
bill was introduced with the daylight saving rider eliminated (H.R. 7413) and
passed the house on July 18 (Public Law No. 22). This provision had been in-
cluded in the agricultural appropriation bill by a senate amendment, since the
house of representatives on January 18 had passed a special bill repealing the
daylight saving law (H.R. 3854). This measure was reported in the senate on
July 20, passed the senate on August 1, and was vetoed by the President on August
15. It passed the house over the veto on August 10 by a vote of 223 to 101, and the
senate on August 20 by a vote of 57 to 10.

An interesting question of procedure was raised in the house of representatives
on August 18, when Representative Wingo challenged the right of the Speaker to
withhold the veto message from the house, making the point of order ''that
the veto message from the President of the United States is on the table and
that under the practice and rules of the house and the constitutional provi-

74



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AMERICAN GOVERNMENT AND POLITICS 76

passage and now satisfies nobody — providing for the return of the
raiboads to their owners (H. R. 10453, House Report 456), and a bill
which, if it does not create a real budget system, at least shows some
disposition to improve the present haphazard and wasteful method of
appropriating public money (H. R.^ 9783, House Report 362). While
the house did not have foreign problems to engross its attention, it had
great difficulty in keeping a quorum and lost much time in roll calls.

Apart from the Peace Treaty, the chief interests of the special session
were not legislative. They were President Wilson's continued illness,
the problem of high prices, and &bor troubles.

TA6 Organization of Congress. Both houses were at once confronted
by problems of organization with the Republican party in control,
after eight years as the minority in the house of representatives and six
years in the senate. Harmony was only on the surface in the appoint-
ment of the senate committees, and the fight between the ''old guard''
and ''progressives" was rather bitter. At a conference of Republican
senators held on May 14, Senator Cummins was chosen president pro-
tempore — a concession to the progressives — and Senator Lodge, floor
leader. The conference approved the Norris resolution which pro-
vided that no senator should be chosen chairman of more than one of
the ten important committees and could not be a member of more than
two of these committees: appropriations, agriculture, commerce, finance,
foreign relations, interstate commerce, judiciary, military affairs, naval
affairs, and post offices and post roads.'

sion the house should proceed to consider it." Speaker GiUett said it was within
his discretion to lay it before the house when he pleased, but a unanimous consent
agreement to take the veto message up the next day relieved him of the necessity
of a more direct and official ruling. It is es^tremely doubtful whether the Speaker
has this discretion, and it would seem that a veto message must be laid before the
house at once. In the present case, there was apparently some doubt as to whether
the votes necessary to override the veto could have been mustered if the message
had been laid before the house immediately, and it is possible that on a more im-
portant issue such discretion on the. part of the Speaker might result in a decisive
partisan advantage.

*The Norris resolution, which came before the senate on November 15, 1918,
(amending rule xxv of the standing rules of the senate) provided that no senator
who was chairman of one of the important committees (omitting commerce and
agriculture from the enumeration above) should be a member of any of the other
committees. This was changed to the form in which it was adopted by the Repub-
lican conference. A number of the senators who have had long service are taken
off one or more of these committees. Senator Lodge, for example, was on the
finance, foreign relations, and naval affairs committees; Senator Penrose was on



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76 THE AMERICAN POLITICAL SCIENCE BEVIEW

Senators Borah, Johnson, Eenyon and Jones all declined to serve
on the committee on committees, and Senators Gronna and McNary
were appointed to give representation to the progressives. The chief
fight centered on Senator Penrose and Senator Warren as chairmen of
the finance and appropriations committees, respectively, but both
senators were appointed.

The organization of the ho'use of representatives was apparently
more harmonious. Frederick H. GiUett, of Massachusetts, was chosen
Speaker; Frank W. Mondell, of Wyoming, Republican floor leader;
and ex-Speaker Champ Clark, leadef of the minority. The election
of Mr. Mondell came after a bitter fight against James R. Mann, of
Illinois, a member of the ''old guard," but an able parliamentarian.
No enthusiasm has been manifested in the house or elsewhere over Mr.
Mondell, and the details of this review show that his leadership has
not resulted in any great amoimt of constructive legislation.

The President's Recommendations. The third session of the Sixty-
fifth Congress ended on March 4, 1919, with seven appropriation bills
not passed on account of a filibuster by certain of the Republican sen-
ators who desired to embarrass the President and force an immediate
special session, during which, as a result of the November, 1918,

finance, naval afifurs, and post cti&ces and post roads; Senator Warren was on
agriculture, appropriations, and military affairs. These senators have each been
dropped from one committee.

The Norris resolution was aimed at a system of interlocking memberships on
senate committees, under which a few men control legislation in the senate. The
work of the system is seen at its worst advantage in the conference committees —
composed of the chairman, ranking majority member, and ranking minority mem-
ber. During the Sixty-fifth Congress, 105 conference committees were appointed,
and five senators served on 82 of these, the number for each being as follows:
Smoot 33, Warren 23, Nelson 11, Lodge 9, and Penrose 6. {The SearMighif June,
1919.) On March 1, 1919, Senator La FoUette made a lengthy speech in the senate
which resulted in the defeat of the coal and oil bill. Part of this speech was taken
up with an interesting analysis of the functions of these conference committees.
He showed that in spite of rules denying conferees the authority to legislate, new
provisions were frequently inserted in bills, and that the summary action in many
cases taken on the reports of the conference committees deprived Congress of its
legislative authority and handed it over to the small groups who were appointed *
to reconcile the ideas of the senate and house of representatives. He suggested
that a new rule requiring that, during the short session, all bills originating in
either house be sent to the other house not later than January 10 would be neces-
sary in order to do away with the practice of approving eleventh-hour conference
reports in order to get something accomplished.



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AMEBICAN GOYERNMBNT AND POLITICS 77

election, the Republicans would be in control. Throughout the country
there was a considerable demand for the convening of the new Con-
gress; it was urged that Mr. Wilson, who had returned from Paris to
sign the bills passed during the closing days of the session, should not
return to the Peace Conference, but that his paramount duty was to
stay in the United States and, with congressional assistance, attempt
to solve the very pressing domestic problems of the transition period
from war to peace. At the same time it was urged that Congress should
reassert the authority which it had lost during the war. There was
also a general feeling, irrespective of party, that with certain executive
departments handicapped by a lack of funds and with an enormous
mass of business awaiting legislative settlement. Congress should be
called in special session.

This was done by the President from Paris, and Congress met on
May 19. The committees which under the rules are appointed to
notify the President that Congress has been organized and is awaiting
his message communicated with him by cable, and for the first time
in the history of the government the President addressed Congress by
the same method. His message dealt only with domestic problems
and contained a number of definite recommendations. It will be worth
while to enumerate the problems on which Mr. Wilson asked congres-
sional action and to state summarily the legislative results, reserving
several problems for more detailed discussion. The President rec-
ommended:

1. ''A genuine cooperation and partnership, based upon a real
commimity of interest and participation in control" and a ''genuine
democratization of industry." Legislation to help in this would be
a measure coordinating the several agencies of conciliation and adjust-
ment already in existence and the development of the unemployment
organization of the department of labor. Except for the compulsory
arbitration features of the Ciunmins raihx)ad bill (S. 3288) and the
section of thie Food Control Act (H. R.8624), which was used to Justify
the injunction against the miners, no action was taken.

2. The passage of a measure permitting returning soldiers to find
and take up land in the hitherto undeveloped regions of the country.
The Mondell soldiers' settlement bill (&. R. 487) was reported to the
house on August 1, 1919, but no further action was taken. The reason
for this is that, in the form reported, its passage is doubtful, since it
seems to be adapted chiefly to benefit western states containing arid



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78 THE AMERICAN POLITICAL SCIENCE BEVIEW

and cutover land; provides only for colony projects and not individual
farms; discriminates in favor of soldiers seeking farm homes^ and
requires capital on the part of the soldier ($1500 to $2000) to secure
the benefits of the act.

3. Legislation friendly to the plans and purposes of American mer-
chants and providing a constructive merchant marine policy. . A bill
repealing certain war legislation and providing for the development of
the merchant marine (H. R. 10378) passed the house on November 8,
but it relates to the disposition and regulation of government-built
ships rather than to the expansion of the carrying trade.

4. A reconsideration of taxes in order to simplify them and to repeal
certain minor taxes provided for in the acts of 1917 and 1918. The
house passed a bill construing fruit-juice beverages as not being soft
drinks (H. R. 7840), and passed a measure repealing the luxury tax
(H. R. 2021). This, however, was recommitted to the committee on
ways and means (July 12, 1919). A bill repealing the soft drink section
passed the house on July 28 (H. R. 2837).

5. No departure from the Tariff Act of 1913, but special considera-
tion to the industries manufacturing dyestuffs and related chemicals.
A joint resolution (Public, No. 21) prolongs the war time restrictions
on the importation of dyes and coal tar products, as provided in the
Trading with the Enemy Act. The house passed an act creating a
dye licensing commission (H. R. 8078) and amended the provisions of
the Tariff Act of 1913 respecting shell and pearl buttons (H. R. 7705),
but neither of these measures was passed by the senate.

6. The passage of the equal suffrage resolution. This was done
by Congress almost immediately.

7. The return of the telegraph and telephone lines. A measure
relinquishing wire control was approved on July 11 (S. 120, Public
Law No. 9).

8. The return of the raibx)ads. The Esch bill (H. R. 10453) was
reported in the house on November 10 (House Report No. 456) and
was passed on November 17. The Cummins bill (S. 3288) was reported
in the senate on October 23 and a new report was filed on November
10 (Senate Report No. 304). The Peace Treaty delayed consideration
of this until the regular session. A bill restoring rate-making powers
to the interstate commerce commission (S. 641) was vetoed by the
President on November 18 (Senate Document No. 155).



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AMERICAN GOVEBNMENT AND POLITICS 79

9. The repeal of the war time restrictions on the manufacture and
sale of wines and beers. Congress responded by passing a stringent
enforcement law and overrode the President's veto.*

The Woman Suffrage Amendment. Almost the first business com-
pleted by Congress after it convened was the passage of the resolution
submitting the woman suffrage amendment to the state legislatures
for ratification. The resolution was approved by the house of repre-
resentatives on May 21 by a vote of 304 to 89, as follows: Yeas, Repub-
licans 200, Democrats 102, Independent 1, Prohibition 1; nays. Re-
publicans 19, Democrats 89. The senate acted on Jime 4 by a majority
of 56 to 25, as follows: Yeas, Republicans 36, Democrats 20; Nays,
Republicans 8, Democrats 7. This result, which was accomplished
practically witiiout debate, showed a marked change in congressional
sentiment with respect to woman suffrage by federal constitutional
amendment. Such a proposal was first voted on in the senate in 1887,
when there were 16 for and 34 against; in 1914 the senate vote was
35 to 34, and in 1918, 53 (26 Democrats and 27 Republicans) to 31 (21

^ War time Prohibition began with the Food Control Act of August 10, 1917
(40 Stat, at L. 276) empowering the President to restrict the foodstufiPs used in
the manufacture of fermented liquors and to commandeer distilled spirits in
bond or in stock. The importation of distilled spirits and the use of foodstuffs
in their manufacture were forbidden.

A complete war time prohibition act was approved on November 21, 1018 (40
Btat. at L. 1045). It provided that after Jime 30, 1019, 'Wtil the conclusion of
the present war and thereafter until the termination of demobilisation, the date
of which shall be determined and proclaimed by the President of the United
States," no liquors could be sold, and after May 1, 1019, no grains or food
products could be used in the manufacture of ''beer, wine or other intoxicating
malt or vinous liquor for beverage purposes."

President Wilson in his message from Paris of May 20, 1919, suggested a
repeal of this act so far as it applied to beers and light wines, and this recom-
mendation was repeated in a special message of June 28. The President said
that, under the opinion of the attorney-general, he had na authority to remove
the ban until the demobilisation of the troops was complete, and he could not
say that this had been accomplished, although the emergency was past.

In spite of this recommendation, Congpress proceeded to pass a stringent law
enforcing war time prohibition and the constitutional amendment which was
to go into effect January 16, 1920. A joint resolution adding this amendment
to the Constitution was introduced in Congress in August, 1917, reintroduced
at the regular session, and adopted on December 28. Three states ratified it
on January 16, 1019, bringing the number up to 38, and the amendment accord-
ingly went into effect a year later, January 16, 1920.

The prohibition enforcement bill was H. R. 6810 and had the following leg-
islative history: House Report No. 91 (June 30);- passed house July 22; Senate



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80 THE AMERICAN POLITICAL SCIENCE REVIEW

Democrats and 10 Republicans), three less than the necessary two*
thirds. The vote in the house of representatives in 1915 was 174 to
204, and on January 10, 1918, the house approved the amendment by



Online LibraryWestel Woodbury WilloughbyThe American political science review → online text (page 8 of 77)