Two cases were found not to arise under a treaty. The contention in Cordova v. Grant118 was 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. Jurisdiction 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 interpretation of the political authorities. The issue arose before the Supreme Court because of the contention that the presence of a question under 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.119 the right to appeal to the Supreme Court from the supreme court of the Philippine Islands depended upon whether the case involved the treaty with Spain continuing in force rights of property secured by patent and copyright prior to the cession of the islands. The court below had held that the trade name involved was a geographical or descriptive name incapable of registration under Philippine statutes or the law as it existed under the Spanish régime. 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 consideration 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 grounds 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."

118 (1919) 248 U. S. 413, 39 Sup. Ct. 138.

Questions as to the extent and exercise of admiralty jurisdiction arose in three cases. In The Scow 6 S.,120 which was a libel in rem for penalties against a scow for illegal dumping 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 grounds, about assessing an unliquidated fine in the admiralty." Union Fish Co. v. Erickson121 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. & Shipbuilding Co.122 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 under 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 substance new construction and that the contract was in effect a lease of the shipbuilders yards and facilities were held to be unfounded.

REQUISITES OF JURISDICTION OVER DEFENDANTS

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. Farson123 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

120 (1919) 250 U. S. 269, 39 Sup. Ct. 452.

121 (1919) 248 U. S. 308, 39 Sup. Ct. 112. See 17 Michigan Law Review 591, and 28 Yale Law Journal 500.

122 (1919) 249 U. S. 119, 39 Sup. Ct. 221. See 32 Harvard Law Review 853, and 28 Yale Law Journal 697.

123 (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.

insurance companies based upon such service is invoked. . But the consent that is said to be implied in such cases is a mere fiction, founded 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 ground 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 without personal service within the state, or that it means only that service on an ex-agent is insufficient.

PROCEDURAL REQUIREMENTS

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 pursuance 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.124 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 Holmes and Brandeis dissented but without giving their reasons. We do not know, therefore, 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 majority to declare that the matter is "too clear for serious discussion."

124 (1919) 250 U. S. 114, 39 Sup. Ct. 411.

FAITH AND CREDIT TO PROCEEDINGS 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 corporation125 and to nullify attempts on the part of a state to use its power over acts within its borders to control acts without.126 The statute objected to in American Fire Insurance Co. v. King Lumber & Mfg. Co.127 made the person who solicits insurance and procures applications the agent of the insurer notwithstanding anything 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. Johnson128 went off on the ground that the constitutional question had not been seasonably raised in the state court. 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 contrary 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 courts of that state and was 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 provision (article 4, section 1), which is not decided, nevertheless since

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

126 See 13 American Political Science Review 247.

127 (1919) 250 U. S. 2, 39 Sup. Ct. 431, 13 American Political Science Review 627. 128 (1919) 249 U. S. 490, 39 Sup. Ct. 336.

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 judgment 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,129 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 130 held that an order to a railroad to restore a side track was legislative in character and so to be regarded as a state law. But Standard Computing Scale Co. v. Farrell131 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 Secretary 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

129 (1919) 249 U. S. 397, 39 Sup. Ct. 324, 13 American Political Science Review 620. 189 (1919) 249 U. S. 422, 39 Sup. Ct. 345, 13 American Political Science Review 630. 131 (1919) 249 U. S. 571, 39 Sup. Ct. 380.