administration of the trust as it tended to enhance the price of the lands. This, the Supreme Court did not deny, but it held nevertheless that the United States as grantor might, as it did, reserve control over the matter and exact the performance of the conditions on which the lands were given and held. This case, like the preceding one, illustrates the power of the United States to keep a string attached to its grants and to continue to pull the string even though all but the string has passed from its control. In this respect the case differs from stipulations in enabling acts which seek to continue control over the public, governmental powers of states admitted thereunder.23 The other cases on national power are of minor importance, with the exception of those involving questions of taxation and of commerce which will be treated in succeeding sections. National control over the Indians, was sustained in two decisions. United States v. Board of Commissioners sanctioned the authority of the United States, as guardian of the Indians to bring a suit in the federal courts to protect lands owned by non-competent Indians from illegal state taxes. The fact that the lands were taxable by the state after proper assessment was held insufficient to deprive the United States of its duty and right to ensure that its wards are not illegally deprived of the property rights previously conferred upon them. This same benevolent guardianship of the Indians arose also in Nadeau v. Union Pacific R. Co.,25 which affirmed a grant to a railroad in 1862 of a four hundred foot strip of land through an Indian reservation. The tract was said to be "part of the domain held by the tribe under the ordinary Indian claim-the right of possession and occupancy-with fee in the United States." On the authority of earlier decisions it was declared that "the power of the United States, as guardian for the Indians, to legislate in respect to such lands is settled." Patents issued subsequent to the grant to the railroad, without expressly reserving a right of way to the road, were held to give no rights to the strip in question. Any claim based on occupancy or possession was "See Coyle v. Smith, 221 U. S. 559, 31 Sup. Ct. 688 (1911). For an article bearing on the general question involved in the Ervien case, see Andrew A. Bruce, "State Socialism and the School Land Grants", 33 HARV. L. REV. 401. *251 U. S. 128, 40 Sup. Ct. 100 (1919). 253 U. S. -, 40 Sup. Ct. 570 (1920). said to be precluded by earlier decisions. Mr. Justice Clarke dissented, and Justices Holmes, Pitney and Brandeis did not sit. 26 While it is not clear that any constitutional issue was directly involved in Burnap v. United States, 20 Mr. Justice Brandeis in the course of the opinion pointed out that Congress might invest the appointment of inferior officers either in the President alone, in the courts of law, or in the heads of departments. The power to remove was declared to be, "in the absence of statutory provision to the contrary, an incident of the power to appoint." The term "head of a department", as used in the statute, was said to mean "the Secretary in charge of a great division of the executive branch of the government, like the State, Treasury, and War, who is a member of the Cabinet", and not to "include heads of bureaus of lesser divisions."27 Another case involving the application of an uncontested constitutional principle is Evans v. National Bank of Savannah.28 It was agreed that the powers of a national bank in respect to discounts and the rate to be charged is subject to the control of Congress and not of the states. But Congress had prescribed that the rate to be charged should be that "allowed by the laws of the state or territory where the bank is located, and no more." The application of this provision to the case at bar depended upon a combination of elementary mathematics and advanced jurisprudence. The Georgia statute forbade a rate of interest in excess of eight per cent. "either directly or indirectly by way of commission for advances." The Georgia supreme court held that eight per cent. discount charged in advance was more than eight per cent. interest. Mr. Justice Pitney for himself and Justices Brandeis and Clarke agreed. He insisted that "the laws of the state" as used by Congress meant not merely the words of particular sections of state statutes, but "all applicable provisions of the statutes as interpreted and construed by the decisions of the court of last resort" of the state. Mr. Justice McReynolds, for the majority, did not specifically controvert these positions, but he relied on the rule of the federal courts that it is not usurious 252 U. S. 512, 40 Sup. Ct. 374 (1920). For a discussion of the President's power of removal, see Thomas Reed Powell, "The President's Veto of the Budget Bill", 9 NAT. MUN. REV. 538. 251 U. S. 108, 40 Sup. Ct. 58 (1919). See 33 HARV. L. Rev. 725, 18 to collect the highest rate of legal interest at the time the loan is made, and insisted that the power given to national banks to discount notes includes "the power, which banks generally exercise, of discounting notes reserving charges at the highest rate permitted for interest." He looked to the state law only for the rate, and to the national law for the definition of usury." 29 II. REGULATION OF COMMERCE I. Power of Congress The extensive power of Congress over foreign commerce finds illustration in Strathearn S. S. Co. v. Dillon.30 This sustained a provision in the Seamen's Act which, as interpreted, entitles any seaman shipping in foreign ports on foreign ships to disregard contracts postponing payment of wages until the end of the voyage and to demand at any American port one-half the wages earned to date. If the demand is not complied with, the seaman may sue in a federal district court for the entire wages then earned. Most of the opinion of Mr. Justice Day deals with the question of interpretation. The shipping company, backed by the British Embassy, urged that the Act should be limited to American seamen; but the court adduced against them the plain language of the statute and the further consideration that such "construction would have a tendency to prevent employment of American seamen, and to promote the engage33 HARV. L. REV. 718, 726. See also Randall J. LeBoeuf, "National Banks as "For a note on the power of a national bank to manage a railroad, see Powers of National Banks", 6 VA. L. REV. 301. Fiduciaries in New York", 5 CORNELL L. Q. 128, and Walter Wyatt, "Fiduciary For a discussion of the national postal power, see Robert E. Cushman, "National Police Power Under the Postal Clause of the Constitution", 4 MINN L. REV. 402. Con be found in Howard L. Bevis, "The Deportation of Aliens", 68 U. PA. L. REV. sideration of the power of the national government over aliens will 97, and 201, and 29 YALE L. J. 561. The right of aliens to take real property is dis notes in 20 COLUM. L. REV. 680, 18 MICH. L. REV. 422, 6 VA. L. Rev. cussed in 5 CORNELL L. Q. 209. 3 U. S. 348, 40 Sup. Ct. 350 (1920). The case is followed in ThompLucas (The Westmeath), 253 U. S. 358, 40 Sup. Ct. 353 (1920). See LCOLUM. L. REV. 479, and for comment prior to the decision, 20 CoL.UM. L. REV. ment of those who were not entitled to sue for one-half wages under the provisions of the law" and thus defeat the purpose of Congress in passing it. The constitutional issue involved was declared to have been settled by an earlier case31 in which the conclusion was "reached that the jurisdiction of this government over foreign merchant vessels in our ports was such as to give authority to Congress to make provisions of the character now under consideration; that it was for this government to determine upon what terms and conditions vessels of other countries might be permitted to enter our harbors, and to impose conditions upon the shipment of sailors in our own ports and make them applicable to foreign as well as domestic vessels." From this it seems that ships which wish to enter our ports must behave according to our taste on the high seas and in their home ports. Board of Public Utility Commissioners v. Ynchausti & Co.32 found no denial of due process of law in an order of the Philippine Board of Public Utility Commissioners requiring the free carriage of mails as a condition of granting to vessels a permit to engage in the coastwise trade. The case was said to depend entirely upon the power to limit the coastwise trade. This was found to be plenary. Hence it was assumed to follow inevitably that no condition attached to a grant could deny due process of law. There is a hint in the opinion of the Chief Justice that the doctrine of the case is limited to legislation for "territory not forming part of the United States because not incorporated therein" under the principles of the Insular Cases; but the hint is back-handed and, in view of the frequent declarations of the complete power of Congress over foreign commerce, it must be doubted whether any distinction would be made in favor of ships engaged in that commerce. Yet plainly the opinion leaves room for a different attitude towards a congressional regulation of the interstate coasting trade. The order was questioned under the due-process clause of the Philippine Bill of Rights, which, it was recognized, was intended by Congress to have in the Philippines the settled construction that similar clauses receive in the United States. Yet it was added that the "result of their application must depend upon the 31 'Patterson v. Bark Eudora, 190 U. S. 169, 23 Sup. Ct. 821 (1903). nature and character of the powers conferred by Congress upon the government of the Islands." 33 The so-called Reed Amendment which had been sustained in an earlier case, came before the court again in United States v. Simpson, in which a person who transported five gallons of whiskey in his own automobile sought to escape from the toils of the statute. Mr. Justice Clarke in dissenting insisted that "interstate commerce, in the constitutional sense, is defined to mean commercial, business, intercourse" and especially "the exchange, buying or selling of commodities, of merchandise, on a large scale between the inhabitants of different states." He thought that liquor purchased by a man for his personal use and transported by him in a private vehicle was “withdrawn from trade or commerce as thus defined", and that at the time when the Reed Amendment was enacted Congress had no power to deal with Mr. Simpson on such a frolic of his own. "The grant of power to Congress is over Commerce,-not over isolated movements of small amounts of private property, by private persons for their personal use." The rest of the court contented themselves with asserting, through Mr. Justice Van Devanter, that the introduction of intoxicating liquor across state lines into forbidden territory "could be effected only through transportation, and whether this took one form or another it was transportation in interstate commerce." In refusing to restrict the natural meaning of the words of the statute, Mr. Justice Van Devanter pointed out that the law would not be of much practical benefit if its purpose could be frustrated by he thought that the Hill case was wrongly decided. Mr. Justice Mctransportation in automobiles. Mr. Justice Clarke in his dissent said Reynolds who had dissented with him in the Hill case concurred in this. Three prosecutions under the Sherman Anti-trust Law turned wholly on the question whether there had been restraint of trade, it being assumed that the trade involved was interstate commerce." United States v. Hill, 248 U. S. 420, 39 Sup. Ct. 143 (1919). 25 52 U. S. 465, 40 Sup. Ct. 364 (1920). See 26 W. VA. L. Q. 73, and 29 L. J. 922. For a general article see Lindsay Rogers, "Life, Liberty, quor': A Note on the Police Power", 6 VA. L. Rev. 156. In United States v. United States Steel Corporation, 251 U. S. 417, 40 |