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Published online by Cambridge University Press: 02 September 2013
United States v. Hill by a vote of seven to two sustained the so-called Reed Amendment by which Congress prohibited the introduction of liquor into any state which forbade the sale or manufacture of liquor within its borders. West Virginia, though interdicting manufacture and sale, allowed any person to bring into the state for personal use a quart of liquor each month. Since Mr. Hill did only what West Virginia sanctioned, Mr Justice McReynolds for himself and Mr. Justice Clarke insisted that “the Reed Amendment in no proper sense regulates interstate commerce, but is a direct intermeddling with the state's internal affairs.” He inquired rhetorically: “If Congress may deny liquor to those who live in a state simply because its manufacture is not permitted there, why may not this be done for any suggested reason, e.g. because the roads are bad or men are hanged for murder or coals are dug. Where is the limit?” For the majority Mr. Justice Day answered that the control of Congress over interstate commerce is not limited by state laws and that “the policy of Congress acting independently of the states may induce legislation without reference to the particular policy or law of any given state.”
2 (1919) 248 U. S. 420, 39 Sup. Ct. 143. See Cushman, R. E., “The National Police Power under the Commerce Clause of the Constitution,” 3 Minnesota Law Review 381, 409–411.Google Scholar See also 19 Columbia Law Review 79, 32 Harvard Law Review 733, 17 Michigan Law Review 511, and 28 Vale Law Journal 501.
3 In interpreting the Reed Amendment the principal case declined to limit its scope to the introduction of liquor for commercial purposes. In United States v. Gudger, (1919) 249 U. 8. 373, 39 Sup. Ct. 323, the statute was held not applicable to liquor in transit through a dry state to a wet one. See 28 Yale Law Journal 836. See also Danziger v. Cooley, (1919) 248 U. S. 310, 39 Sup. Ct. 119.
4 (1919) 250 U. S. 199, 39 Sup. Ct. 445. The same point is affirmed in another case between the same parties decided the same day, 250 U. S. 207, 3 Sup. Ct. 447. See 32 Harvard Law Review 557.
5 (1919) 249 U. S. 168, 39 Sup. Ct. 188. Mr. Justice Clarke dissents.
6 (1919) 250 U. S. 130, 39 Sup. Ct. 412.
7 (1919) 250 U. S. 101, 39 Sup. Ct. 396.
8 (1918) 248 U. S. 90, 39 Sup. Ct. 48. It is not clear that the principle asserted in this opinion was essential to the disposition of the controversy.
9 (1918) 248 U. S. 1, 39 Sup. Ct. 3.
10 In Carey v. South Dakota, (1919) 250 U. S. 118, 39 Sup. Ct. 403, an opportunity was presented to pass on the constitutionality of the federal Migratory Bird Act which has been disapproved by several of the lower federal courts, but the Supreme Court, by interpreting the provision that all birds of the designated kind which do not remain permanently within any one state are to be deemed within the custody of the United States as not precluding the operation of a state statute forbidding the shipment of dead birds, found it unnecessary to consider whether Congress had exceeded its powers. The opinion of Mr. Justice Brandeis may be taken as a hint that the federal statute will be sustained to the extent that it forbids migratory birds to be destroyed or taken contrary to federal regulations, for one of the reasons adduced in support of thus limiting the scope of the statute is the familiar canon of construction that “where a statute is reasonably susceptible of two interpretations, by one of which it would be clearly constitutional and by the other of which its constitutionality would be doubtful, the former construction should be adopted.”
In Sandberg v. McDonald, (1918) 248 U. S. 185, 39 Sup. Ct. 84 (see 28 Yale Law Journal 403), the Seamans Act was by a vote of five to four interpreted as not intending to include advancement to sailors in foreign ports in a provision forbidding the deduction of wages advanced from the sum due for past services. The minority, consisting of Justices McKenna, Holmes, Brandeis and Clarke, recognized that their construction of the statute made the question of the constitutionality of the statute “not only of ultimate but of first insistence,” but it passed it by for the reason that it had not been duly certified by the Circuit Court of Appeals. The majority prefaced its examination of the question of interpretation by saying: “Conceding for the present purpose that Congress might have legislated to annul such contracts as a condition upon which foreign vessels might enter the ports of the United States ‥‥” thus inviting the assumption that federal control of foreign commerce is sufficiently extensive to sanction the constitutionality of the statute as interpreted by the minority. The Sandberg Case involved a British ship. In Neilson v. Rhine Shipping Co., (1918) 248 U. S. 205, 39 Sup. Ct. 89 (see 28 Yale Law Journal 403), the act was held not to apply to extra-territorial payments by an American ship, the same four justices dissenting.
In Louisville & Jeffersonville Bridge Co. v. United States, (1919) 249 U. S. 534, 39 Sup. Ct. 355, the Safety Appliance Act was held to apply to a movement of twenty-six cars three quarters of a mile in a terminal yard. The bridge company contended that it was engaged in a mere switching of cars and not a “train movement” within the meaning of the act, but does not appear to have contested the constitutionality of the application of the statute successfully urged by the government.
11 (1918) 248 U. S. 158, 39 Sup. Ct. 35.
12 (1919) 249 U. S. 389, 39 Sup. Ct. 320.
13 (1918) 248 U. S. 67, 39 Sup. Ct. 24. See 32 Harvard Law Review 579 and 28 Yale Law Journal 291.
14 (1917) 245 U. S. 178, 13 American Political Science Review 53.
15 (1918) 246 U. S. 135.
16 (1919) 250 U. S. 459, 39 Sup. Ct. 522.
17 (1917) 245 U. S. 292, 13 American Political Science Review 55.
18 (1919) 249 U. S. 252, 39 Sup. Ct. 265.
19 (1919) 250 U. S. 94, 39 Sup. Ct. 428.
20 (1918) 248 U. S. 165, 39 Sup. Ct. 62.
21 (1919) 249 U. S. 275, 39 Sup. Ct. 276. See 19 Columbia Law Review 334, 3 Minnesota Law Review 421, and 28 Yale Law Journal 802.
22 (1891) 141 U. S. 18.
23 In Watters v. Michigan, (1918) 248 U. S. 65, 39 Sup. Ct. 29, it was coneeded by appellant that the peddling of two small articles at rest in the state before the sale was not protected from state taxation by the federal Constitution even though the great bulk of the business was interstate, but it was urged that the application of the state law should be determined by the general course of business and not by an isolated transaction. Mr. Justice Holmes said that the argument had force, but that its denial by the state court was not reviewable by the Supreme Court.
24 (1919) 249 U. S. 427, 39 Sup. Ct. 325.
25 (1912) 225 U. S. 501, 32 Sup. Ct. 715.
26 Two cases dealing with state inspection of illuminating oils while still under the protection of the commerce clause have already been considered. See footnotes 11 and 12, supra.
27 (1919) 248 U. S. 285, 39 Sup. Ct. 124.
28 (1919) 248 U. S. 297, 39 Sup. Ct. 125.
29 (1913) 228 U. S. 115.
30 (1919) 248 U. S. 365, 39 Sup. Ct. 114.
31 In Louisville & N. R. Co. v. Western Union Tel. Co., (1919) 250 U. S. 316, 39 Sup. Ct. 513, a state grant of the right of eminent domain to put poles on a railroad right of way was held not to be precluded by the acts of Congress authorizing the erection of such poles along post roads.
32 (1919) 248 U. S. 363, 39 Sup. Ct. 97. See 17 Michigan Law Review 420.
33 (1919) 248 U. S. 359, 39 Sup. Ct. 108.
34 (1919) 249 U. S. 472, 39 Sup. Ct. 313.
35 (1919) 249 U. S. 134, 39 Sup. Ct. 237.
36 Texas & N. O. R. Co. v. Sabine Tram Co. (1913) 227 U. S. 111, and cases cited.
37 (1919) 249 U. S. 236, 39 Sup. Ct. 268. See 32 Harvard Law Review 860.
38 (1919) 250 U. S. 241, 39 Sup. Ct. 450.
39 (1919) 250 U. S. 118, 39 Sup. Ct. 403, note 10, supra.
40 (1896) 161 U. S. 519, 16 Sup. Ct. 600.
41 (1919) 250 U. S. 135, 39 Sup. Ct. 502.
42 (1919) 250 U. S. 163, 39 Sup. Ct. 507. Other cases deciding the same issues are Burleson v. Dempsey, (1919) 250 U. S. 191, 39 Sup. Ct. 511, Macleod v. New England Tel. & Tel. Co., (1919) 250 U. S. 195, 39 Sup. Ct. 511, and Kansas v. Burleson, (1919) 250 U. S. 188, 39 Sup. Ct. 512. For an article on the interpretation of the statute, published prior to these decisions, see Bickle, H. W., “State Power over Interstate Railroad Rates During Federal Control,” 32 Harvard Law Review 299.CrossRefGoogle Scholar
43 (1919) 249 U. S. 397, 39 Sup. Ct. 324.
44 Schenck v. United States, (1919) 249 U. S. 47, 39 Sup. Ct. 247, Frohwerk v. United States, (1919) 249 U. S. 204, 39 Sup. Ct. 249, Debs v. United States, (1919) 249 U. S. 211, 39 Sup. Ct. 252.
45 (1919) 248 U. S. 78, 39 Sup. Ct. 40.
46 (1918) 248 U. S. 104, 39 Sup. Ct. 46. See 19 Columbia Law Review 159, 4 Cornell Law Quarterly 50, 32 Harvard Law Review 721, and 28 Yale Law Journal 283.
47 (1919) 250 U. S. 208, 39 Sup. Ct. 486. For a note on an earlier case in the District of Columbia on the same question, see 17 Columbia Law Review 483.
48 (1919) 248 U. S. 276, 39 Sup. Ct. 93. See 28 Yale Law Journal 415.
49 (1919) 248 U. S. 476, 39 Sup. Ct. 165. See also Bank of California v. Roberte, (1919) 248 U. S. 497, 39 Sup. Ct. 171. See 19 Columbia Law Review 59, 32 Harvard Law Review 727, 3 Minnesota Law Review 257, and 28 Yale Law Journal 610.
50 (1919) 250 U. S. 123, 39 Sup. Ct. 407.
51 Cavanaugh v. Looney, (1919) 248 U. S. 453, 39 Sup. Ct. 142, recognized the familiar rule that a federal court may enjoin proceedings by state officials in violation of the federal Constitution, but, in applying the subsidiary rule that this should not be done except in a case reasonably free from doubt and when necessary to prevent great and irreparable injury, denied relief.
In Barrett v. Virginian Ry. Co., (1919) 250 U. S. 473, 39 Sup. Ct. 540, Mr. Justice McReynolds remarked obiter that the rule of the federal courts as to directing verdicts is not subject to modification by state statutes and constitutions.
52 (1919) 249 U. S. 510, 39 Sup. Ct. 357.
53 (1919) 248 U. S. 498, 39 Sup. Ct. 172.
54 (1919) 249 U. S. 269, 39 Sup. Ct. 274. See 28 Yale Law Journal 835.
55 Thomas Cusack Co. y. Chicago, (1917) 242 U. S. 526, 12 American Political Science Review 442.
56 (1919) 249 U. S. 454, 39 Sup. Ct. 316. See 17 Michigan Law Review 709 and 28 Yale Law Journal 836.
57 (1919) 248 U. S. 297, 39 Sup. Ct. 125, footnote 28, supra. See 28 Yale Law Journal 512.
58 (1919) 249 U. S. 427, 39 Sup. Ct. 325, footnote 24, supra.
59 (1919) 248 U. S. 365, 39 Sup. Ct. 114, footnote 30, supra.
60 (1918) 248 U. S. 112, 39 Sup. Ct. 32.
61 (1919) 248 U. S. 465, 39 Sup. Ct. 160. See 28 Yale Law Journal 601.
62 (1919) 250 U. S. 2, 39 Sup. Ct. 431.
63 (1919) 249 U. S. 265, 39 Sup. Ct. 273.
64 (1919) 249 U. S. 152, 39 Sup. Ct. 227. See 28 Yale Law Journal 599.
65 (1919) 250 U. S. 400, 39 Sup. Ct. 553.
66 (1919) 250 U. S. 241, 39 Sup. Ct. 450, footnote 38, supra.
67 (1919) 249 U. S. 416, 39 Sup. Ct. 343.
68 (1919) 249 U. S. 422, 39 Sup. Ct. 345.
69 (1918) 248 U. S. 30, 39 Sup. Ct. 13.
70 (1919) 250 U. S. 256, 39 Sup. Ct. 454.
71 (1919) 248 U. S. 429, 39 Sup. Ct. 151. See 19 Columbia Law Review 153, 32 Harvard Law Review 736, and 17 Michigan Law Review 347.
72 (1918) 246 U. S. 178, 13 American Political Science Review 66.
73 (1919) 249 U. S. 399, 39 Sup. Ct. 349. This case is followed in Burr v. Columbus, (1919) 249 U. S. 415, 39 Sup. Ct. 354. See 19 Columbia Law Review 241.
74 In Public Utility Commissioners v. Manilla Electric R. & L. Co., (1919) 249 U. S. 262, 39 Sup. Ct. 272, the court found no constitutional question in a complaint by a public utilities commission that the territorial court had construed an ordinance requiring free transportation of members of the police department wearing official badges as not applicable to detectives with euch badges concealed.
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