tive powers of the District are now assumed by Congress, which has by rule set aside certain days to be devoted to the business of the District. The executive power is given to a board of three commissioners two civilians and one military officer-appointed by the President and Senate. This board enjoys not only large administrative powers, but also makes ordinances relating to public safety, health, and welfare.

The island of Cuba, while it may not be regarded as a dependency, is under the protection of the United States. In the joint resolution of Congress demanding the withdrawal of Spain in 1898, it was specifically stated that the United States disclaimed any intention of exercising sovereignty, jurisdiction, or control over the island except for the pacification thereof; and it was furthermore asserted that when that task was accomplished the government of the island would be left to the people. However, in 1901, a provision, known as the "Platt Amendment," was incorporated in the army appropriation act, which directed the President to turn the control of Cuba over to the inhabitants as soon as they established a regular government and expressly recognized in their constitution the protection of the United States and the right of American intervention under certain circumstances.2

In the summer of 1906, an armed uprising was fomented by discontented natives, and after repeated appeals from American citizens in Cuba, the federal government decided to intervene. A division of the army was sent to the island, and the entire administration was assumed by Governor Magoon representing the authority of the United States. American occupation lasted until January, 1909, when the government was turned over to the native president and congress, duly elected in the preceding November.

PART III

STATE GOVERNMENT

CHAPTER XXII

THE CONSTITUTIONAL BASIS OF STATE GOVERNMENT

HAMILTON believed that contests between the state and federal governments would generally end in favor of the former, and that there was a greater probability of "encroachment by the members upon the federal head than by the federal head upon the members." Jefferson looked upon the national government as principally the agent of the states in the conduct of their foreign affairs; and in the early days of the republic it was quite common for men in politics to leave prominent places in the federal government to accept high offices in their respective commonwealths. When Mr. Jay, who had resigned the Chief Justiceship of the Supreme Court, was tendered a reappointment by President Adams, he replied: "I left the bench perfectly convinced that under a system so defective it would not obtain the energy, weight, and dignity which was essential to its affording due support to the national government; nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess."

Obviously, fundamental changes have occurred in our federal system since Jay wrote these depreciatory words concerning the dignity of the federal judiciary. The Civil War and the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments have taken away from the states an enormous domain of power which they previously enjoyed. Our national government has risen in popular esteem; statesmen now look upon local politics principally as a means of advancement to federal honors; the growth

of national party organization has subordinated state to national politics, and the failure of state governments to remedy many of the abuses connected with trusts and corporations has led the people to turn to the national government for relief. The supremacy of federal law1 and the growing practice of corporations and individuals to resort, whenever possible, to federal tribunals in the protection of private property rights, have given a weight to the national government which its founders had slight reason to suspect it would ever secure. Whatever view we may take of the old struggle over states' rights, the fact remains that in law and in political consciousness the nation is now first. The national government is not a light superstructure resting upon the solid foundations of state governments; the national Constitution furnishes the broad legal basis for the whole system, for it is within the sphere marked out by that Constitution and guarded by the federal judiciary that commonwealth governments must operate.3

1 See Readings, p. 140.

2

2 It will be remembered that thirty-three of the forty-six commonwealths composing the Union have been admitted by the national government, sometimes with conditions.

A clear idea of the concrete nature of this control over state activities by the federal courts may be gained from the following summary by Professor R. B. Scott: "It has been held that state boards and commissions, attorneys-general and prosecuting attorneys, may be enjoined from putting into effect a schedule of railroad rates, or gas, telegraph, or stockyard rates, alleged to be invalid as working a deprivation of property without due process of law or otherwise violating the federal Constitution. State officers have been restrained from levying taxes on the ground that they were attempting to act without lawful authority. A cancellation or revocation of license to do corporate business because of the violation of state laws has been enjoined. The enforcement of state ordinances has been prevented and seizure of property under a dispensary law has been restrained. . . . Furthermore it is to be noted that in addition to the cases where purely negative control has been exercised, there are instances of the grant of positive remedies by the federal courts against state and local officers; e.g., in compelling through writ of mandamus the levy of a tax to pay a judgment on township bonds. These cases have been confined to no locality; North and South, East and West have felt the heavy hand of the national government. Nor has such control been restricted to a single field of state law; criminal as well as civil liability to the state has been involved." "The Increased Control of State Activities by the Federal Courts," in the Political Science Review for August, 1909.

Fundamental Constitutional Limitations on State Governments

The boundaries and nature of this sphere of power reserved to the several commonwealths are to be understood by an examination of the fundamental limitations on state governments laid down in the federal Constitution,' and also the chief judicial decisions interpreting them in practice.

1. The first groups of limitations relate to the taxing power of the state. States cannot lay and collect imposts and duties upon exports and imports that is, upon articles in the hands of any person who sends them to, or receives them from, foreign countries directly, except to defray expenses incurred in the execution of inspection laws, and then only with the consent of Congress.

A duty upon imports, said the Supreme Court in the case of Brown v. Maryland,' is not merely a duty on the act of importation, but it is a duty on the thing imported as well. "When the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import and has become subject to the taxing power of the state; but while remaining the property of the importer in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition of the Constitution." " Thus foreign commerce is protected entirely from impediments which might be devised by state govern

ments.

2. Analogous to this provision is the clause which forbids any state to lay a tonnage duty without consent of Congress. The word "tonnage" means the entire internal capacity or contents of a vessel or ship expressed in tons of one hundred cubical feet each. States may tax the ships of their citizens as property valued as such; but it is clear and undeniable, the Supreme Court has held, "that taxes levied by a state upon ships and vessels as instruments of commerce and navigation are within that clause of the

1 Readings, p. 391.

212 Wheaton, 419.

3 When any state, with consent of Congress, lays duties on imports or exports, the net proceeds of all such duties must be paid into the treasury of the United States.

instrument which prohibits the states from levying any duty of tonnage without the consent of Congress; and it makes no difference whether the ships or vessels taxed belong to the citizens of the state which levies the tax or to the citizens of another state, as the prohibition is general, withdrawing altogether from the states the power to lay any duty of tonnage under any circumstances without the consent of Congress.'

3. No state can lay a tax on the property, lawful agencies, and instrumentalities of the federal government or on federal franchises as such. This principle is not expressed in the Constitution, but it was derived, with his usual logic, by Chief Justice Marshall from the nature of the federal system itself. The power to create implies the power to preserve; the power to tax is the power to destroy, and if wielded by a different hand is incompatible with the power to create and preserve; therefore if the states could tax federal instrumentalities, they could destroy a union which was meant to be indestructible. According to this doctrine, states cannot tax branches of a United States bank, federal bonds, federal franchises, or by taxation "retard, impede, burden, or in any manner control the operation of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government." 2

The early doctrine that the states cannot in any way touch a federal instrumentality has been modified more recently to the effect that they cannot interfere with such an instrumentality in such a manner as to impair its efficiency in performing the function which it was designed to serve. A state, for example, cannot tax federal bonds, but it may tax the buildings and other property of a national bank chartered by the federal government. "It is manifest," said the Supreme Court, "that exemption of federal agencies from state taxation is dependent not upon the nature of the agents or upon the mode of their constitution, or upon the fact that they are agents, but upon the effect of the tax; that is, upon the question whether the tax does in truth deprive them of the power to serve the government as they were intended to serve it, or does hinder the efficient exercise of their power. A tax upon their property has no such necessary effect.

1 State Tonnage Tax Cases, 12 Wallace, 204.

2

4 Wheaton, 316; Weston v. Charleston, 2 Peters, 444.