State Rights and Federal Power

It will be remembered that all through last fall and winter controversies raged in southern and western states over the right of inferior federal courts to suspend state laws reducing railroad rates and even to enjoin state officers from attempting to enforce such laws by criminal and civil actions in state courts. The situation at the time was very chaotic. Some federal judges freely issued injunctions of the most sweeping character against officials and shippers to suspend the enforcement of the two-cent fare acts and similar statutes, while others ordered temporary tests of such rate-reduction acts and refused to assume without positive proof that the acts were unfair and confiscatory.

Many appeals to the Supreme Court were taken at that time, both on essential and incidental or preliminary issues, and the decisions of that tribunal have been awaited with the deepest concern.

In two of the cases, one from Minnesota and the other from North Carolina, the court rendered important decisions late in March. The cases involved several issues of moment—the right of states to discourage resistance to their laws by severe and excessive penalties; the right of complainants to appeal to federal courts, where they believe their rights under the federal constitution to be menaced, without first taking their cases to state courts; and the power of federal judges, where jurisdiction has been assumed, to issue injunctions restraining sheriffs, attorneys general, and other state officers from seeking to compel obedience to state law.

The decisions are said by many to be revolutionary and destructive of state rights, though the court stood 8 to I in both cases and the only dissenter was a Republican judge, Mr. Justice Harlan. The opinion was written by a Democrat, Justice Peckham, and none of the other Democrats on the bench took exception to its reasoning.

In substance, the decisions are as follows:

That where state act is believed to be invalid and subversive of constitutional rights the aggrieved need not go to the state courts, but may at once appeal to the federal court of the district.

That the federal court may assume jurisdiction and issue an injunction to suspend the law under attack, so as to prevent injury and injustice pending the litigation. That even attorneys-general and other state officers may be thus enjoined from enforcing a violation of the constitution, because a suit against them for such a purpose is not a suit against the state itself, but against individuals acting in its name.

That any act that imposes enormous fines and other excessive penalties in order to discourage litigation and appeals to the courts is invalid on its face, since it tends to deprive citizens of their right to a hearing in court, to the equal protection of the laws.

The court denies that any of these propositions are startlingly novel or epoch-making, but Justice Harlan, though a Republican, agrees with the critics who hold that the decisions introduce a change into the relations between the states and the federal government. There is a demand for an act depriving inferior federal courts of the power to suspend laws and enjoin state officers from enforcing them. Congress can pass such an act, it is believed, without our first amending the constitution. The agitation in the name of state rights will thus continue as to questions of policy and expediency whatever the law may be today.

Prohibition and Interstate Commerce

In view of the remarkable growth of the prohibition sentiment in the United States, especially in the South, where the low saloon patronized by illiterate blacks has been a menace to order and security, the congressional treatment of the question of prohibition has assumed great im

portance. There are many anti-liquor bills pending. Some would establish prohibition in the Territories and in the District of Columbia, both for the sake of the welfare of the localities and as example to the states, counties and cities. Others deal with the very difficult legal question of interstate commerce in liquor.

The question is difficult because the Supreme Court in a series of decisions has extended what is known as the "original package" doctrine in such a way that the constitutionality of much of what is proposed is admittedly in doubt.

The problem is this: The states may, of course, regulate and even prohibit the manufacture, sale and distribution of liquor within their own boundaries. They may adopt local option laws and enable cities, counties and even wards and precincts to vote for or against the liquor traffic for themselves. But states cannot obstruct or hamper interstate commerce, and liquor is as legitimate a commodity under national law as any other. If, then, liquor is shipped from a license state into prohibition territory, the latter may not confiscate it or injure it in any way, nor may it punish those who receive and distribute it. What can it do? It must wait until the liquor reaches the consignee. The consignee may not sell the liquor or give it away contrary to state law. He may consume it, and serve it to friends at family or social functions, but that is all. This is the present law, as defined by the Supreme Court. The dissatisfaction with it arises from the fact that liquor is shipped C. O. D. into prohibition states, that express companies carry and distribute the packages, and that many of the consignees never order the liquor, but are simply notified that it has been sent in their names to claim it at their discretion and pay for it. This has converted some express company offices into saloons and violates the spirit of the state prohibition laws or policies.

What the bills referred to seek to do is to render liquor thus shipped liable to seizure the moment it enters the

prohibition state or district, before it reaches the individual consignee, actual or imaginary. They limit the conception "interstate commerce" and give to the state some power that has been exercised by the federal government.

Are they constitutional? A Senate subcommittee has, 3 to 2, reported that they are not-that is, that the courts would not be likely to sustain them. But many good lawyers profess the contrary opinion, and the matter will not be dropped. However, it is clear that no matter what Congress might say or do, the question whether any given case of shipment to or of seizure of liquor by a state was an interference that was justified by the laws governing interstate commerce would ultimately have to be decided by the courts.

Woman's Labor and the State

Is a statute limiting the labor of women in factories and laundries constitutional in the United States? Is it a proper regulation, or an arbitrary infringement on the personal and property rights of those affected?

Some years ago the Illinois Supreme Court annulled a law limiting the hours of women's labor. It saw no difference between such legislation and an attempt to limit the hours of work of adult men. Last year the courts of New York annulled a statute prohibiting the employment of women in factories and like establishments at night, after six in the evening and before seven in the morning. They based this decision on the apparently sweeping principle that woman is a full-fledged citizen, enjoying equal civil rights with man, and not in any sense "a ward of the state" to be protected and watched over specially. A closer study of the judicial opinions, however, disclosed many "obiter dicta" therein, and justified the inference that the law would have been upheld if its relation to the health, morals, and welfare of the community had been made more clear. The courts said that there was nothing before them to show that

it was injurious to woman to work in a factory at night, for much depended on the hours, conditions, etc. Would an hour's work at night be bad for the health of any woman under any circumstances? What of the work of women in the homes; what of social entertainments and late hours at opera, balls, etc.? It appears that the statute was considered too loose and too general to be sustained as a health regulation. The decision, however, created much anxiety among humanitarians and social reformers and organized women workers.

Recently the federal Supreme Court passed on the constitutionality of the Oregon law limiting woman's labor to ten hours. The case had attracted national attention and aroused much concern, for in many of our states laws limiting the labor of women have long been in force, unchallenged, and an adverse decision as to one would have invalidated all of them. Very full and elaborate briefs had been submitted to the court, that for the State of Oregon having been prepared by a progressive Boston lawyer after an exhaustive study of scientific, medical, and industrial reports and books bearing on the subject.

The decision was favorable to the law and unanimous. The opinion, by Justice Brewer, is acknowledged to be a masterly discussion of the issues. Its gist is contained in the following lengthy quotation, which we reproduce on account of its deep significance and probable effect on future American legislation:

Differentiated by these matters from the other sex, she is probably placed in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men, and could not be sustained. It is impossible to close one's eyes to the fact that she still looks to her brother and depends upon him. Even though all restrictions on political, personal, and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection; that her physical structure and a proper discharge of her maternal functions-having in view not merely her own health but the well-being of the race-justify legislation to protect her from the greed as well as the passion of man. The limitations which this statute places upon