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Labriola, A. Economia, socialismo, sindicalismo: alcuni scritti. Napoli: F. Razzi. Pp. 8, 224.

Pregizer, Rich. Die politischen Ideen des Karl Follen. Ein Beitrag zur Geschichte des Radikalismus in Deutschland. Tübingen: J. C. B. Mohr. Pp. 8, 97.

C'rrick, E. J. Philosophy of social progress. London: Methuen.

Articles in Periodicals

Faguet, Theories of. Les idées de M. Emile Faguet sur la justice moderne. William Loubat. Rev. Politique et Parlementaire. Mai, 1912.

Jellinek. Sulla teoria dir Diritti pubblici subiettive di Jellinek. V. E. Orlando. Riv. di dir. pub. Mar., 1912.

Jurisprudence. Filosofia positiva del diritto: prelezione di un corso di filosofia del diritto. G. Dallari. Riv. italiana di sociologia. Aprile, 1912.

Legal Personality. La personalità giuridica delle federazioni operaie. Salvatore Muller. Vita giudiziaria. Jan., 1912.

Legal Personality. La teoria della persona giuridica. Fr. Ferrara. Riv. di diritto civile. Jan., 1912.

MISCELLANEOUS

Books

Andrade y Uribe, B. M. Maura und die konservative Partei in Spanien. Karlsruhe: G. Stezenbach. Pp. 4, 398.

Boyle, James. What is socialism? New York: Shakespeare Press. Pp. 347.

Cazamain, L. Modern England; a historical and sociological study. New York: Dutton. Pp. 12, 292.

Christensen, Arth. Politik und Massenmoral. Zum Verständniss psychologischhistor. Grundfrage der modernen Politik. Leipzig: G. B. Teubner. Pp. 6, 211.

Clayton, Joseph. The rise of democracy. New York: Cassell. Pp. 256.

Coloquhoun, A. R. China in transformation. Rev. and enl. New York: Harper. Pp. 8, 299.

Cross, J. B. The essentials of socialism. London: Macmillan.
Dilla, H. M. The politics of Michigan. New York: Columbia University.

Hamilton, J. J. Government by commission. 3d. ed. New York: Funk &
Wagnalls. Pp. 285.

Howe, Frederic C. Wisconsin: an experiment in democracy. New York: Scribner. Pp. 12, 202.

King, C. L. The regulations of municipal utilities. New York: Appleton. Pp. 9, 404.

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The American
Political Science Review

Vol. VI

NOVEMBER 1912

No. 4

CONSTITUTIONAL LAW IN 1910–1911

THE CONSTITUTIONAL DECISIONS OF THE SUPREME COURT OF THE UNITED STATES IN THE

OCTOBER TERM, 1910.

EUGENE WAMBAUGH.

Harvard University Law School. As was indicated in a preceding article, the chief feature of the judicial year 1909-1910, from the point of view of Constitutional Law, was that the decisions, though numerous, were comparatively unimportant. On the contrary the chief feature of the constitutional decisions of the judicial year 1910–1911 was that an unusual number of them appeared to the public to be of great interest and consequence. Hence it is advisable to deal with the judicial year 1910–1911 in a manner wholly different from that which was adopted with its predecessor. The article covering the judicial year 1909–1910 collected all the constitutional cases in the Supreme Court of the United States, and, with the briefest possible indication of the point decided, distributed them among the several clauses of the Constitution which they served to annotate. For the judicial year 1910–1911, on the other hand, the plan adopted is to confine attention almost wholly to the few decisions making the year memorable. Thus it becomes possible to give a rather full 1 American Political Science Review, vol. iv, pp. 483-497.

statement of those few decisions and now and then to add comments.

There were at least three interesting cases upon the extent of a state's police power. This is a topic necessarily connected with some others, such as the Contract Clause, or the Commerce Clause, or the Fourteenth Amendment. Two of the decisions in question involved the Fourteenth Amendment and the other involved the Commerce Clause.

One of the three cases referred to was that in which the Supreme Court upheld the bank depositors' guaranty act of Oklahoma. There were similar decisions as to the acts of Kansas and Nebraska; but the Oklahoma case, Noble State Bank v. Haskell, was the one of greatest importance. The essential feature of a bank depositors' guaranty act is that it requires all banking corporations organized under the authority of the state to contribute to a central fund sums determined by deposits, and thus from these contributions, or from additional assessments if required, the deposits of insolvent banks are made good. The chief contention against the statute was that it deprives the bank of property in defiance of the Fourteenth Amendment. The answer given by the court was that, although it must be admitted that some one bank will pay contributions that will never be returned to it or to its depositors, still the co-operative security encourages the depositing of money, helps the circulation of bank checks, increases commerce, aids the community, redounds to the advantage of the banks themselves, and cannot be said to be in any respect outrageous. The opinion, by Mr. Justice Holmes, says: “We must be cautious about pressing the broad words of the Fourteenth Amendment to a drily logical extreme. Many laws which it would be wain to ask the court to overthrow could be shown, easily enough, to transgress a scholastic interpretation of one or another of the great guarantees in the Bill of Rights. They

: 219 U.S. 104, affirming 22 Okla. 48. The Nebraska act was upheld in Shallenberger v. First State Bank, 219 U. S. 114, reversing 172 Fed. 999. The Kansas act was upheld in Assaria State Bank v. Dolley, 219 U. S. 121, affirming 175 Fed. 365.

more or less limit the liberty of the individual or they diminish property to a certain extent. We have few scientifically certain criteria of legislation, and as it often is difficult to mark the line where what is called the police power of the States is limited by the Constitution of the United States, judges should be slow to read into the latter a nolumus mutare as against the lawmaking power.”

The second important case under the police power was German Alliance Insurance Company v. Hale, in which was tested an Alabama statute that attempted to prevent combinations of insurance underwriters, and to that end provided that in case any underwriter was a member of a tariff association, the person insured, having sustained a loss within the terms of his policy, should recover twenty-five per cent more than his actual damage. An insured person having suffered loss and having recovered a judgment for an amount justified by the statute, the question for the Supreme Court of the United States became whether the twenty-five per cent excess was not to be deemed excessive, on the theory that the statutory provision deprived the underwriter of property without due process and denied to the underwriter the equal protection of the laws. The statute was upheld on the ground that combinations in insurance concern so many people as to be capable of exceptional regulation under the police power.

The third important case under the police power involved the Commerce Clause. It indicated that by and by the conservation of natural resources by the states may be almost capable of separate treatment as a topic in the law. The decision in question, West v. Kansas Natural Gas Co.,5 overthrew the attempt of Oklahoma to prevent natural gas from being piped out of the state. The ground was that the statute did not really attempt to conserve natural gas but simply attempted

4

: 219 U. S. 307.

See Ohio Oil Co.v. Indiana, 177 U. S. 190, and Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61.

3221 U, S. 229.

to destroy interstate commerce, and thus came into conflict with the Commerce Clause of the Constitution of the United States.

The three cases already dealt with are of importance to the student of political science by reason of their various relations to the general question of the power of the states to restrict private action in the interest of the community. The cases remaining to be dealt with have little relation to that question and little connection with one another; but it will be found that for diverse reasons they, like the cases already mentioned, are worthy of attention even by persons outside the legal profession.

The cases on the police power, in addition to indicating, as just now said, the extent of the limitations placed by the Constitution of the United States upon the power of government to regulate more closely the acts of natural persons and of corporations, bear close relation to the severance of governmental duties between the United States and the states. In the period discussed there have been, besides the cases on the police power, two other important cases on the power of the states, Coyle v. Smith, and Bailey v. Alabama; and one, Flint v. Stone Tracy Co., on the power of the nation.

Coyle v. Smith 6 was a case which, taken in its evident import, determined that Congress cannot create states of diverse powers, and, to phrase the matter in another way, cannot, by limiting the powers of states which are about to be admitted to the Union, increase the power of the Federal Government. The problem arose because in the Act of Congress of June 16, 1906, entitled “An Act to enable the people of Oklahoma and of the Indian Territory to form a constitution and State Government and be admitted into the Union on an equal footing with the original States, etc., it was provided that the capital must temporarily be at Guthrie and must not be changed before 1913. In 1910 the legislature passed an act removing the capital. In Coyle v. Smith the Supreme Court of the United States upheld the removal. Two judges dis

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