Two cases were found not to arise under a treaty. The contention in Cordova v. Grants 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. 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."

(1919–248 U. 8. 413-39 Sup Ct. 138.

constitution cannot authorize a referendum to the electorate from the action of a state legislature in ratifying an amendment to the federal Constitution. The power to ratify was said to have its source in the federal Constitution. The Fifth Article which provides for amendments is a grant of authority by the people to Congress. Congress is restricted to the choice between two methods of ratification. It may send an amendment to state legislatures or to state conventions. When the Constitution uses the term "state legislature" it means the representative law-making body and not the general electorate. What the term meant when the Constitution was adopted, it means still. The argument that the Constitution looks to ratification by legislative action in the states is unsound. "Ratification by a state of a constitutional amendment is not an act of legislation within the proper sense of the word. It is but the expression of the assent of the state to a proposed amendment." Legislatures get their authority to ratify, not from the people of the state, but through the grant to Congress by the people of the United States. A case which allowed a state with the assent of Congress to apply the referendum to an act of the state legislature fixing the boundaries of congressional districts was said to be inapposite, since such action is legisla-" tive in character while the ratification of an amendment is not. "The choice of means of ratification was wisely withheld from conflicting action in the several states." Otherwise there might be "endless confusion in the manner of ratification of federal amendments." It is apparent that what Mr. Justice Day says about the referendum is applicable to other state attempts to restrict state legislatures in ratifying amendments to the federal Constitution, and that the Tennessee legislature was justified in acting on the Nineteenth Amendment in disregard of the requirement of the Tennessee constitution. that an election of members of the legislature must intervene between Amendment. See 91 CENT. L. J. 1. For discussions of the referendum question prior to the Supreme Court decision, see William Howard Taft, "Can Ratification of an Amendment to the Constitution Be Made to Depend on a Referendum?", 28 Yale L. J. 821, and notes in 8 CALIF. L. Rev. 185, 89 CENT. L. J. 334, 19 COLUM. L. REV. 502, 4 CORNELL L. Q. 195, 33 HARV. L. REV. 287, 23 LAW NOTES 62, 102, 119, 24 LAW NOTES 64, 4 Mass. L. Q. 236, 342, and 18 MICH. L. REV. 51, 698. Some of the discussions cited in note 6, infra, also consider the referendum question.

*Davis v. Hildebrant, 241 U. S. 565, 36 Sup. Ct. 708 (1916).

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.14 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.”

1919-250 U. S 114, 39 Sup Ct 411.

to the rejection or ratification of an amendment. An earlier cases on the vote necessary to pass a bill over the President's veto was adduced for the decision that an amendment may be proposed by a vote of two-thirds of the members present in each house, provided there is a quorum. It is not necessary to have "a vote of two-thirds of the entire membership, present and absent." The proposal by the requisite vote "sufficiently shows that the proposal was deemed necessary by all who voted for it. An express declaration that they regarded it as necessary is not essential." The objections urged against the substance of the amendment were that it was an “addition" and not an "amendment" because not germane to anything in the original Constitution, that it was legislation and hence improper for inclusion in the Constitution, and that it interfered with the powers reserved to the States by the Tenth Amendment and was a step towards the destruction of the federal system ordained by the Constitution and therefore not within the amending power. Without specifying these objections, the court through Mr. Justice Van Devanter states succinctly that the prohibition provision of the Amendment is within the amending power, is now a part of the Constitution and "must be respected and given effect the same as other provisions of that instrument," is "operative throughout the entire territorial limits of the United States" and "of its own force invalidates every legislative Act, whether by Congress, by a state Legislature, or by a territorial assembly, which authorizes or sanctions what the section forbids."

The decision on the validity of the Amendment was unanimous. Mr. Justice McReynolds concurred in the disposition of the cases, but declined to express himself on the effect of the amendment on the power of the states. Mr. Justice McKenna went further and disagreed with the interpretation of the Amendment announced by the majority. This interpretation was put by Mr. Justice Van Devanter as follows:

"The second section of the amendment-the one declaring 'The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation'-does 'Missouri Pacific Ry. v. Kansas, 248 U. S. 279, 39 Sup. Ct. 93 (1919).

not enable Congress or the several states to defeat or thwart the prohibition, but only to enforce it by appropriate legislation.

"The words 'concurrent power', in that section, do not mean joint power, or require that legislation thereunder by Congress, to be effective, shall be approved or sanctioned by the several states or any of them; nor do they mean that the power to enforce is divided between Congress and the several states along the lines which separate or distinguish foreign and interstate commerce from intra-state affairs.

"The power confided to Congress by that section, while not exclusive, is territorially coextensive with the prohibition of the first section, embraces manufacture and other intrastate transactions as well as importation, exportation and interstate traffic, and is in no wise dependent on or affected by action or inaction on the part of the several states or any of them."

The Chief Justice, in a separate concurring opinion confined to the interpretation of the Amendment, expressed his profound regret that the court should have been content to state its conclusions without adding its reasons. He in effect construes "concurrent power" to mean "equal and independent power", and insists that the opposite construction contended for would result in a paramount power of Congress or the states and not a concurrent power, and would also in effect nullify the amendment. In elaboration he adds:

"Comprehensively looking at all these contentions, the confusion and contradiction to which they lead, serve in my judgment to make it certain that it cannot possibly be that Congress and the states entered into the great and important business of amending the Constitution in a matter so vitally concerning all the people solely in order to render governmental action impossible, or, if possible, to so define and limit it as to cause it to be productive of no results and to frustrate the obvious intent and general purpose contemplated. It is true indeed. that the mere words of the second section tend to these results, but if they be read in the light of the cardinal rule which compels a consideration of the context in view of the situation