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pines or Porto Rico when we went there, but which of its provisions were applicable by way of limitation upon the exercise of executive and legislative power in dealing with new conditions and requirements. The guaranties of certain fundamental personal rights declared in the Constitution, as for instance that no person could be deprived of life, liberty or property without due process of law, had from the beginning full application in the Philippines and Porto Rico, and, as this guaranty is one of the most fruitful in causing litigation in our own country, provision was naturally made for similar controversy in Porto Rico. Indeed provision is made for the consideration of constitutional questions coming on appeal and writ of error from the Supreme Court of the Philippines, which are certainly not incorporated in the Union. Judicial Code, $248.

On the whole, therefore, we find no features in the Organic Act of Porto Rico of 1917 from which we can infer the purpose of Congress to incorporate Porto Rico into the United States. with the consequences which would follow.

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A second assignment of error is based on the claim that the alleged libels here did not pass the bounds of legitimate comment on the conduct of the Governor of the Island against whom they were directed, and that their prosecution is a violation of the First Amendment to the Constitution securing free speech and a free press. A reading of the two articles removes the slightest doubt that they go far beyond the "exuberant expressions of meridional speech," to use the expression of this court in a similar case in Gandia v. Pettingill, 222 U. S. 452, 458. Indeed they are so excessive and outrageous in their character that they suggest the query whether their superlative vilification has not overleapt itself and become unconsciously humorous. But this is not a defence.

The judgments of the Supreme Court of Porto Rico are Affirmed.

MR. JUSTICE HOLMES Concurs in the result.

NOTE. The brief clause in the Constitution which authorizes Con-, gress "to dispose of and make all needful rules and regulations respecting the territory or other property of the United States" has been held to authorize two entirely distinct things. When the Constitution was framed the United States owned a vast body of public land. The words "territory or other property of the United States" suggest that it was the rights and interests of the United States as a proprietor for which the Convention was endeavoring to provide.

If it had in mind the establishment of government in the regions not included in any of the States and the organization therein of new States, the language chosen was not apt. Viewed from the standpoint of the rights of a proprietor, it would seem that the power to dispose of and make all needful rules and regulations respecting its property is inherent in every government. The Articles of Confedera tion however did not mention the subject, and the action of Congress in enacting the Ordinance for the government of the territory of the United States northwest of the river Ohio, commonly known as the Ordinance of 1787, had been criticised as unauthorized and even as a usurpation. In The Federalist, Madison mildly defended the action of Congress by saying, "I mean not by anything here said to throw censure on the measures which have been pursued by Congress. I am sensible they could not have done otherwise. The public interest, the necessities of the case, imposed upon them the task of overleaping their constitutional limits." The Ordinance provides that "the said territory, for the purpose of temporary government, be one district." Throughout the Ordinance the word "territory" is used as a geographical expression while the temporary political organization for which it provides is called a "district." It is not unreasonable to suppose that the Convention, which was engaged in framing the Constitution at the time the Ordinance was enacted, intended to vest the new Congress with the complete authority, both proprietary and political, which the old Congress had exercised. At" any rate that is the construction which the territorial clause has received.

By virtue of its power to regulate and dispose of the property of the United States, Congress has complete authority over the public domain, Gibson v. Chouteau (1871), 13 Wallace, 92, and that authority is not affected by the inclusion of the lands in a State, Utah Power & Light Co. v. United States (1917), 243 U. S. 389. It may not only sell them but it may lease them, United States v. Gratiot (1840), 14 Peters, 526; it may say to whom, by what mode and by what title they shall be conveyed, Irvine v. Marshall (1857), 20 Howard, 558; it may withdraw them from settlement, Light v. United States (1911), 220 U. S. 523; it may punish trespassing, Jourdan v. Barrett (1846), 4 Howard, 169; it may prevent unlawful occupation, Camfield v. United States (1897), 167 U. S. 518; and it may make grants of lands below high water mark of navigable waters in any territory, Shively v. Bowlby (1894), 152 U. S. 1.

It is conceded that in the establishment of territorial governments Congress acted within its power, but the decisions as to the source from which its power is derived are not uniform. In Sere v. Pitot (1810), 6 Cranch, 332, in American Insurance Co. v. Canter (1826), 1 Peters, 511, and in Cross v. Harrison (1853), 16 Howard. 164, it was based upon the territorial clause in the Constitution, but in the first two of these cases, Chief Justice Marshall intimated that "the power of governing and of legislating for a territory is the inevitable consequence of the right to acquire and hold territory." The same concept seems to underlie the decisions in Mormon Church v. United States (1890), 136 U. S. 1; Shively v. Bowlby (1894), 152 U. S. 1 and


De Lima v. Bidwell (1901), 182 U. S. 1. Whatever its source, the' authority of Congress in the Territories is paramount. In these it possesses not only the authority which it possesses in the States, but it also has all the authority which any State has, Simms v. Simms (1899), 175 U. S. 162. "The power of Congress over the Territories of the United States is general and plenary," Mormon Church v. United States (1890), 136 U. S. 1.

In National Bank v. County of Yankton (1879), 101 U. S. 129, the authority of Congress over Territories which had been incorporated in the United States was thus described by Chief Justice Waite:

It is certainly now too late to doubt the power of Congress to govern the Territories. There have been some differences of opinion as to the particular clause of the Constitution from which the power is derived, but that it exists has always been conceded. . . All territory within the jurisdiction of the United States not included in any State must necessarily be governed by or under the authority of Congress. The Territories are but political sub-divisions of the outlying dominion of the United States. Their relation to the general government is much the same as that which counties bear to the respective States, and Congress may legislate for them as a State does for its municipal organizations. The organic law of a Territory takes the place of a constitution as the fundamental law of the local government. It is obligatory on and binds the territorial authorities; but Congress is supreme, and for the purposes of this department of its governmental authority has all the powers of the people of the United States, except such as have been expressly or by implication reserved in the prohibitions of the Constitution.

In the organic act of Dakota there was not an express reservation of power in Congress to amend the acts of the territorial legislature, nor was it necessary. Such a power is an incident of sovereignty, and continues until granted away. Congress may not aly abrogate laws of the territorial. legislatures, but it may itself legislate directly for the local government. It may make a void act of the territorial legislature valid, and a valid act void. In other words, it has full and complete legislative authority over the people of the Territories and all the departments of the territorial gov ernments. It may do for the Territories what the people, under the Constitution of the United States, may do for the States.

After the annexations of territory which followed the war with Spain, the question as to how far the guaranties of the Constitution extended to the people in the newly annexed regions became acute. In Mormon Church v. United States (1890), 136 U. S. 1, the Court had said:

Doubtless Congress in legislating for the Territories would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amendments; but these limitations would exist rather by

inference and the general spirit of the Constitution from
which Congress derives all its powers, than by any express and
direct application of its provisions.

This general statement however still leaves open the question as \' to whether the annexation of territory ipso facto extends the provisions of the Constitution to it or whether some further action is necessary. In Downes v. Bidwell (1901), 182 U. S. 244, it was held that further action was necessary, and the same principle was applied in Hawaii v. Mankichi (1903), 190 U. S. 197 and in Dorr v. United States (1904), 195 U. S. 138. These decisions suggest that in legislating for territory not yet incorporated in the United States Congress is "subject to such constitutional restrictions upon the powers of that body as are applicable to the situation." These indefinite words from the opinion of Mr. Justice Day in the Dorr case indicate that the extent to which unincorporated territory may claim the protection of the Constitution depends upon the facts peculiar to each case.


HAWKE v. SMITH, Secretary of State of Ohio. (No. 1.)

253 United States, 221.

Error to the Supreme Court of the State of Ohio.

[The Eighteenth Amendment was proposed by Congress to the States in December, 1917, and was ratified by the General Assembly of the State of Ohio in January, 1919. On January 29, 1919, the Secretary of State of the United States proclaimed the ratification of the Amendment and among the thirty-six States which had ratified it he mentioned the State of Ohio. In November, 1918, the following amendment to the Constitution of Ohio was adopted: "The people also reserve to themselves the legislative power of the referendum on the action of the General Assembly ratifying any proposed amendment to the Constitution of the United States." The plaintiff in error (plaintiff below) sought to enjoin the Secretary of State of Ohio from spending public money in the preparation and printing of ballots for a referendum to the voters of the action of the General Assembly on the Eighteenth Amendment. A demurrer to his petition was sustained by the lower court and its action was affirmed by the Supreme Court of Ohio. The case was then appealed.]

MR. JUSTICE DAY delivered the opinion of the court.

The question for our consideration is: Whether the provision of the Ohio constitution adopted at the general election, November, 1918, . . . is in conflict with Article V of the Constitution of the United States.

The Fifth Article is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by action of the legislatures of threefourths of the States, or conventions in a like number of States. Dodge v. Woolsey, 18 How. 331, 348. The framers of the Constitution might have adopted a different method. Ratification might have been left to a vote of the people, or to some authority of government other than that selected. The language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed.

All of the amendments to the Constitution have been submitted with a requirement for legislative ratification; by this method all of them have been adopted.

The only question really for determination is: What did the framers of the Constitution mean in requiring ratification by "Legislatures"? That was not a term of uncertain meaning when incorporated into the Constitution. What it meant when adopted it still means for the purpose of interpretation. A Legislature was then the representative body which made the laws of the people. The term is often used in the Constitution with this evident meaning. Article I, § 2, prescribes the qualifications of electors of congressmen as those "requisite for electors of the most numerous branch of the state legislature." Article I, § 3, provided that senators shall be chosen in each State by the legislature thereof, and this was the method of choosing senators until the adoption of the Seventeenth Amendment which made provision for the election of senators by vote. of the people, the electors to have the qualifications requisite for electors of the most numerous branch of the state legislature. That Congress and the States understood that this election by the people was entirely distinct from legislative action is shown by the provision of the amendment giving the legislature of any State the power to authorize the Executive to make temporary appointments until the people shall fill the vacarcies by election. It was never suggested, so far as we are

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