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shall be entitled to hold or inherit real estate. But in case real estate situated within the territories of one of the contracting parties should fall to a citizen of the other party who, on account of his being an alien, could not be permitted to hold such property in the State or in the canton in which it may be situated, there shall be accorded to the said heir, or other successor, such term as the laws of the State or canton will permit to sell such property; he shall be at liberty at all times to withdraw and export the proceeds thereof without difficulty, and without paying to the Government any other charges than those which, in a similar case, would be paid by an inhabitant of the country in which the real estate may be situated." The Court held that the State must yield to the Federal treaty, saying: "We have no doubt that this treaty is within the treatymaking power conferred by the Constitution. And it is our duty to give it full effect. We forbear to pursue the topic further. In the able argument before us, it was insisted upon one side, and not denied on the other, that, if the treaty applies, its efficacy must necessarily be complete."

In the Head-Honey cases33 the Court held:

"A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party choses to seek redress, which may in the end be enforced by actual war. It is obvious that with all this, judicial courts have nothing to do and give no redress. But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country. An illustration of this character is found in treaties which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens. The Constitution of the United States places 33 112 U. S., 580.

such provisions as these in the same category as other laws of Congress, by its declaration that 'this Constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States shall be the supreme law of the land.' A treaty, then, is a law of the land, as an act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would a statute." The cases heretofore cited strongly assert the supremacy of all Federal treaties over any State statute. Such a doctrine, however, is not without its limitations. In the first place it must be noted that in all the decisions of the Supreme Court on this point which have been considered, the restrictions placed upon the State have been negative in their character; it has never been held, either by the Supreme Court of the United States, or any other court, that the United States, by treaty, could compel any affirmative action by a State.

A treaty under the Federal Constitution is declared to be the supreme law of the land. This, unquestionably, applies to all treaties where the treaty-making power, without the aid of Congress, can carry it into effect. It is not, however, and cannot be, the supreme law of the land where the concurrence of Congress is necessary to give it effect. Until this power is exercised, as where the appropriation of money is required, the treaty is not perfect. It is not operative, in the sense of the Constitution, as money cannot be appropriated by the treaty-making power. This results from the limitations of our Government.3+

If a treaty, by itself, without the consent of the Congress, cannot bind the United States Government to an act requiring the expenditure of money, far less can it be held to compel the Government of a State to assume any obligation against their will.

There is no better settled principle of constitutional law than that, under the peculiar relations existing between the Federal 24 Federal Cases, No. 14, 251.

"Turner v. American Baptist Missionary Union, 5 McLean, 344;

and State governments, neither can be allowed to impose any financial burden upon the other.

It has been shown how in the ever famous case of McCulloch v. Maryland, Chief Justice Marshall, in his most vigorous style, declared that no State could ever be allowed to tax the United States or its agencies, directly or indirectly; how the truth of his axiom that the power to tax involves the power to destroy has never since been questioned; and how this principal that the National Government must be protected from the effects of State taxation was followed and enlarged in Weston v. Charleston, Dobbins v. The Commissioners of Erie County and other cases. It has also been shown that the Supreme Court has not held this protection to be one-sided, and that what the above cases did for the National Government, the case of The Collector v. Day did for those of the States.

This prohibition of taxation of the States by the Federal Government is directed no less against indirect than against direct taxation; and one kind of indirect taxation takes place when any State is compelled by the National Government to assume any obligation, or incur any expense, against its will. A State Government could be as effectively destroyed by being forced to unlimited expenditures, as it could be by direct taxation. The existence of either power in the Government of the United States is fatal to the security of the Government of the States.

Bearing in mind these fundamental and indisputable principles of constitutional law, such a question as the San Francisco school controversy presents little, if any, difficulty. The maintaining of a system of free education has never been held to be a necessary duty of any government. No provision of the United States Constitution compels any State to undertake this work. Its general assumption by the States has been at their own free will; the details of the management of the school system of each State belongs to that State, and not in slightest degree to the Federal Government. The carrying on of the school system of any State is a matter of heavy expense. If the United States Government attempts to compel any State to educate any person or persons, they are forcing an additional

expense upon that State. If such power belong to the United States at all, it is impossible to place any limitation upon it.

The expense to San Francisco in the present controversy is, of course, of slight importance. But so were the taxes involved in the cases of McCulloch v. Maryland, or the Collector v. Day. The principles involved in both cases go to the very root of our Constitutional Government.

§ 92. The regulation of commerce.-The respective powers of the Federal and the State governments, relative to the regulation of Commerce, will be considered in Chapter XII.

$93. Legislative powers reserved to the States in the exercise of the police power.-The United States Constitution does not deprive the individual States of the right to exercise, within their territorial limits, that poorly defined group of powers, known collectively as the police power. The right to exercise such power is an absolute necessity for every government and was never surrendered by the State to the Federal Government.35 The Constitution clearly contemplates leaving such a power to the States, and in general the National Government has shown itself disposed to give a liberal interpretation to the extent of power allotted to the States under this right.

The term police powers is, however, impossible of exact definition. "Many attempts have been made in this court and elsewhere to define the police power, but never with entire success. It is always easier to determine whether a particular case comes within the general scope of the power than to give an abstract definition of the power itself, which would be accurate in all respects."68 Again, in the Slaughterhouse Cases the Court says: "This (i. e. the police power) is and must be from its very nature incapable of any very exact definition or limitation. Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life and the beneficial use of property."

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A general idea of the scope and extent of the police power can only be gained by a consideration of the various powers which it has been held that a State can exercise under this general name. The range of subjects subject to control under the police power has been greatly increased during the past generation and is not very broad. Among the purposes for which this power has been used by the States are the following: Prevention of crime, prevention of diseases, prevention of adulteration of food, regulation of the sale of intoxicating liquors, building regulations, regulations to prevent fire, regulations of various kinds of business such as banking associations, insurance companies, innkeepers, common carriers, auctioneers, peddlers, druggists, etc.; regulation of the right to engage in certain professions, law, medicines, etc., either absolutely or in certain localities, and for many other objects.

Broad as the rights of the State under the police power are, they are, however, not unlimited; in particular they cannot stand against United States Statutes constitutionally enacted by Congress. "Definition of the police power must, however, be taken subject to conditions that the State cannot, in its exercise, for any purpose whatever, encroach upon the powers of the general Government, or rights granted or secured by the supreme law of the land." "While it may be a police power in the sense that all provisions for the health, comfort and security of the citizen are police regulations and an exercise of the police power, it has been said more than once in this court that where such powers are so exercised as to come within the domain of Federal authority, as defined by the Constitution, the latter must prevail."" "No urgency for its use can authorize a State to exercise it in regard to a subject matter which has been confined exclusively to the discretion of Congress by the Constitution."72

This limitation of the police power of a state has been most frequently enforced in case where such power was held to con

To New Orleans Gas Light Co. v. Louisiana Light & H. P. Mfg. Co., 115 U. S., 650, 661.

"Morgan's Louisiana and T. R.

and S. S. Co. v. Louisiana Board of Health, 118 U. Nay 455.

12 Henderson v. Wickham, 92 U. S., 259, 271.

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