the State has transcended its powers. The burden any S indirect."

The desire of Massachusetts to regulate the imberbia in the state of quotations of the New York Stock Exchange as the trated by Western Union Telegraph Co. v. Foster to the ground that the distribution was interstate commeme. The state relied on the fact that the quotations, after being received in Boston over interstate wires in the Morse Code, were then translated into the vernacular and distributed to tickers. It appeared, however, that the ultimate recipients of the quotations were determined by the New York Exchange before the message started from that city. The court said that it did not matter that these recipients had no direct contract relations with the New York Exchange, and held that the interstate character of the transmission was not at an end until the information reached its ultimate destination, thus refusing to develop a new sort of original-package rule to apply to such transactions.

Mr. Justice Holmes observed that the character of the intercourse was to be determined by "practice, intent and the typical course," and not by "title or niceties of form." and he declared that "if the normal contemplated and followed course is a transmission as continuous and rapid as science can make it from Exchange to broker's office, it does not matter what are the stages or how little they are secured by covenant or bond." The effort to support the state power on state control over the streets met with the answer that "acts generally lawful may become unlawful when done to accomplish an unlawful end, and a constitutional power cannot be used by way of condition to attain an unconstitutional result."

Constitutional principles were the substratum of two cases which held that, in a prosecution by a state for keeping opium unlawfully, it was error to exclude evidence showing that the acts which detained the opium in the state were incidental to exportation which had been authorized by the treasury department of the federal government, as this bore on the question " (1918) 247 U. S. 105.

10 McGinnis v. California, (1918) 247 U. S. 91, and Same v. Same, 247 U. S. 95.

whether the goods were in transit when seized. The principle involved is that the state cannot apply its police power to articles which are moving in interstate or foreign commerce as fast as can be reasonably expected.

An echo of the Minnesota rate cases came before the court in Northern Pacific Ry. Co. v. Solum," in which shippers had recovered in the state court the excess of an interstate over an intrastate rate between two points. The state court had declared that it was the duty of the carrier to ship over the shorter and cheaper intrastate route, but the Supreme Court held that this depended upon circumstances which were primarily for judgment of the interstate commerce commission, and that the state court was without authority to adjudicate the controversy until this essentially administrative question had been passed upon by the commission. With reference to the jurisdiction of the commission and the corresponding inhibition on state authorities, it was said curtly that “it is sufficient that one of the routes is interstate." The company's reason for using the interstate route was that the shorter intrastate route had severe grades. It used this route for traffic going in the opposite direction.

II. GOVERNMENTAL RELATIONS BETWEEN THE STATES AND THE UNITED STATES

The familiar principle that the Constitution presupposes the continued existence and effectiveness of both the state and national governments, and that neither government can through the exercise of its powers interfere with the necessary instrumentalities of the other, was relied on in a number of cases, but in none was the principle found to have been violated. Omaechevarria v. Idaho32 held that the police power of a state may be exercised to arrange priorities of grazing privileges over the public domain of the United States, so long as such provisions con

#1 (1918) 247 U. S. 477. See 2 Minnesota Law Review 339.

" (1918) 246 U. S. 343; 31 Harvard Law Review 1164. This case is also considered in the section dealing with police power. Justices Van Devanter and

flict with no federal statute. Sweet v. Schock33 and McCurdy v. United States34 found that the Indian lands with which they respectively had to deal had sufficiently passed from federal control to be subject to state taxation. In Johnson v. Lankfords and Martin v. Lankford,36 two cases growing out of the administration of Oklahoma's depositors' guarantee law, it was held that an action against the state bank commissioner for misfeasance is not a suit against the state, since a state officer may be delinquent without involving the state in delinquency.

A most important issue with respect to the relations between the state and federal governments was raised by the endeavor of Virginia to secure a writ of mandamus compelling the members of the West Virginia legislature to levy a tax to pay a judgment rendered against West Virginia in favor of Virginia. The court left for future determination the question whether the remedy asked for was available to the judgment creditor, but it very definitely rejected West Virginia's contention that the Tenth Amendment prohibited the Supreme Court from ordering a state legislature to exercise the governmental powers of the state.37 An affirmative answer was given to the question: "May a judgment against a state as a state be enforced against it as such, including the right to the extent necessary for so doing of exerting authority over the governmental powers and agencies possessed by the state?" And the court prefaced its order that the case be restored to the docket for reargument on the question of remedies, by saying: "Accepting the things which are irrevocably foreclosed-briefly stated, the judgment against the state

33 (1917) 245 U. S. 192.

(1918) 246 U. S. 263.

(1918) 245 U. S. 541. See 86 Central Law Journal 285, and 31 Harvard Law Review 1036.

(1918) 245 U. S. 547.

" Virginia v. West Virginia, (1918) 246 U. S. 565. See T. R. Powell, "Coercing a State to Pay a Judgment," 17 Michigan Law Review 1. See also 12 American Journal of International Law 619, 31 Harvard Law Review 1158, and 16 Michigan Law Review 617. For a discussion of the problem written before the decision of the court, see William C. Coleman, "The State as Defendant under the Federal Constitution," 31 Harvard Law Review 210.

operating upon it in all its governmental powers and the duty to enforce it viewed in that aspect.

III. POLICE POWER

1138

The October term of 1917 is remarkable for the small number of cases involving questions of the police power. During the three preceding terms at least sixty-seven cases3 passed on police measures either of the states or of Congress, and in nine cases 40 objections were sustained. Against this yearly average of twenty-two cases and annual death rate of three statutes and administrative orders during the preceding triennium, the year 1917-1918 reports only eight cases, with two decisions adverse to the claimed authority. If we exclude from consideration the cases dealing with public utilities, we have to contrast three cases sustaining police statutes with a previous average of twelve, and to note that one statute was declared unconstitutional during the past term and that the average for the three preceding terms was also one.

The most important police measure to come before the court was the Louisville segregation ordinance which forbade migration for residence purposes of persons of color to any block in which a majority of the residents were white, with a similar restriction on white infiltration into colored blocks. This was declared unconstitutional in Buchanan v. Warley," on the ground that it unjustifiably interfered with the rights of property owners to dispose of their property as they saw fit, and therefore took their property rights without due process of law. The

38 For a case that has some bearing on the question whether the federal government may tax income from state securities and from state salaries, see Peck v. Lowe, page 73 infra, note 65.

"Of these 67 cases, 39 were concerned with the general police power, and 28 with the control over public utilities.

40 Six of these involved requirements on carriers.

41 (1917) 245 U. S. 60. See S. S. Field, "The Constitutionality of Segregation Ordinances," 5 Virginia Law Review 81. See also 85 Central Law Journal 422, 18 Columbia Law Review 147, 3 Cornell Law Quarterly 133, 31 Harvard Law Review 475, 21 Law Notes 162, 16 Michigan Law Review 109, 2 Minnesota Law Review 57, and

race question appeared in the opinion only by way of alleged but insufficient justification.

The case before the court was evidently framed for the purpose of testing the constitutionality of the ordinance, as it arose from a bill brought by a white man against a negro for specific performance of a contract to purchase land for a residence in a white district, with a proviso that the purchaser should not be required to accept a deed and make payment unless he had a right under the law to occupy the premises as a residence. On behalf of the ordinance it was urged that it legitimately promoted the public peace and the public welfare by relieving the friction due to race conflicts, but Mr. Justice Day answered this by saying:

"That there exists a serious and difficult problem arising from a feeling of race hostility which the law is powerless to control, and to which it must give a measure of consideration, may freely be admitted. But its solution cannot be promoted by depriving citizens of their constitutional rights and privileges."

The discussion of the cases in which race separation in railway carriages and educational institutions had been sanctioned has some faint flavor of the notion that residential segregation might deny to negroes the equal protection of the laws; but the opinion as a whole zealously guards against putting the decision on any such ground. All that was found evil was the interference with freedom to dispose of city lots. Whether residential race segregation was good or evil was not passed upon, except to declare that it was not sufficiently meritorious to justify a restraint on the alienation of real estate.

The dryest law of any state was sustained in Crane v. Campbell, 42 which held that Idaho had not abridged the privileges and immunities of citizens of the United States, nor deprived persons of liberty without due process of law, by forbidding and penalizing the use or possession of intoxicating liquor. One paragraph of Mr. Justice McReynold's opinion regarded the prohibi

43 (1917) 245 U. S. 304. See 52 American Law Review 275, 31 Harvard Law Review 658, 4 Iowa Law Bulletin 116, 16 Michigan Law Review 386, 2 Minnesota Law Review 232, and 27 Yale Law Journal 575.