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sented, but did not give their reasons. The opinion of the court, by Mr. Justice Lurton, went into the question in a very thorough and interesting fashion, and, after explaining that the power to locate its own seat of government is peculiarly a state power

and cannot be denied to one of the original states, pointed out that a congressional authority to place new states upon a plane of inequality with the original states cannot be derived from the power to admit new states into the Union nor from the duty to guarantee to every state a republican form of government. “The definition of a 'state',” as the opinion says, “is found in the powers possessed by the original states which adopted the Constitution.” It is not necessary to have much imagination in order to picture the possible results flowing from an opposite decision.

In Bailey v. Alabama ? an Alabama statute was construed as establishing peonage and was overthrown as conflicting with the Thirteenth Amendment. Peonage, as Mr. Justice Hughes says in the opinion of the court, has been defined as "a status or condition of compulsory service, based upon the indebtedness of the peon to the master." The Revised Statutes of the United States expressly forbid peonage. The Alabama statute provided that "any person, who with intent to injure or defraud his employer, enters into a contract in writing for the performance of any act of service, and thereby obtains money or other personal property from such employer, and with like intent, and without just cause, and without refunding such money, or paying for such property, refuses or fails to perform such act or service, must on conviction be punished by a fine in double the damage suffered by the injured party, but not more than $300, one half of said fine to go to the county and one half to the party injured”; and the statute proceeded to provide that if there were failure to perform the contract, without excuse for such failure, and without refunding the loss or paying for the property obtained, then there should be prima facie evidence of the intent to defraud the employer. The court considered

7 219 U. S. 219.

that the effect of the statute was to make a mere breach of contract sufficient evidence of crime, with the result that under the threat of the criminal law the servant would serve involuntarily until he made good the advance received by him. This view was strengthened by the consideration that under the Alabama rules of evidence the accused would not be allowed to testify to his lack of intent to defraud. Two justices dissented on the general ground that independently of any statute a person who has contracted is compelled to pay damages in case he breaks his contract and that if a state adds a criminal liability "it simply intensifies the legal motive for doing right” and "does not make the laborer a slave.” The opinion of the majority met this line of thought by saying that “the statute

furnishes a convenient instrument for the coercion which the Constitution and the Act of Congress forbid; an instrument of compulsion peculiarly effective as against the poor and ignorant, its most likely victims.”

Flint v. Stone Tracy Co. 8 upheld the Federal corporation tax. The problem before the court was whether this is a direct tax, for the tax is not apportioned among the states according to their population, and hence it does not comply with the requirement which is imposed upon direct taxes by Article I., Section 2, Clause 3, and Article I, Section 9, Clause 4, of the Constitution. The tax is measured by the net income. As there is no income unless business is carried on, it became easy for the court to hold that the tax is really an excise exacted for the privilege of doing business. As the tax is uniform throughout the United States it complies with the provisions of Article I, Section 8, Clause 1, as to excises. The doing of business in a corporate form is a peculiar and valuable privilege, and hence it became easy for the court to hold that the privilege of doing business in such a form can be made the basis of an excise. Yet there was the objection that the privilege is commonly granted by the states and not by the nation; and the answer was that this is of no consequence, for the usual subject

• 220 U. S. 107.

matter of a national excise, the sale of intoxicating liquors, for example, has nothing to do with the nation as distinguished from the several states. There was the further objection that the chartering of corporations is a function of sovereignty and that the tax was hence a clogging of the sovereignty which has been reserved to the states; but there was the easy answer that the bodies paying the tax in question were not, like municipal corporations, exercising functions of the state, and that hence there was not in any proper sense an interference with sovereign powers. There were other points; but those here stated were much the most important and are enough to indicate that the problem as to national and state taxation of corporations is now a problem for statesmen rather than for lawyers. So much business is now carried on in corporate form that, as is intimated by the court in this opinion, the withdrawal of that business from the possibility of national taxation might eventually cripple the finances of the nation. On the other hand, an excessive taxation of corporations by the nation may cripple the finances of the states. The burden imposed by the present act-one per cent on the net income over $5000—is slight; and the immediate importance of the tax is that it places all corporations in a direct relation with the government of the nation, giving to the Federal Government a power to exact statements of their business, and giving to the corporations a reason for taking peculiar interest in national legislation.

So much for the cases which more or less clearly have to do with the respective powers of state and nation. There was also one important case turning clearly upon the division of the governmental powers into legislative, judicial, and executive, and more especially upon the power of Congress to enlarge the functions of the Federal courts. This was Muskrat v. United States. This was a case based upon an Act of Congress which, among other things, especially provided that “David Muskrat and J. Henry Dick, on their own behalf and on behalf of all Cherokee citizens enrolled as such for allotment as of Septem

• 219 U. S. 346.

ber first, 1902, be

authorized and empowered to institute their suits in the Court of Claims to determine the validity of any acts of Congress passed since the said act of July first, 1902, in so far as said acts

attempt to increase or extend the restrictions upon alienation

of lands of Cherokee citizens, or to increase the number of persons entitled to share in the final distribution of lands and funds of the Cherokees”; and it provided also that“jurisdiction is hereby conferred upon the Court of Claims, with the right of appeal

to the Supreme Court of the United States.” Suits having been accordingly brought, it was decided by the Supreme Court that, notwithstanding the statute, this court had no jurisdiction. The Constitution, Article III, Section 2, Clause 1 confines the judicial power to "cases” and “controversies." The opinion of the court, by Mr. Justice Day, after an illuminating discussion of authorities, came to the conclusion that there was not in this instance a case or a controversy; for, though the United States was made a party to the action, nevertheless, to quote the opinion, "it has no interest adverse to the claimants," and “the whole purpose of the law is to determine the constitutional validity of this class of legislation, in a suit not arising between parties concerning a property right necessarily involved in the decision in question, but in a proceeding against the Government in its sovereign capacity, and concerning which the only judgment required is to settle the doutbful character of the legislation,” and “such judgment will not conclude private parties, when actual litigation brings to the court the question.” The court, in short, considered the statute as in effect asking for an advisory opinion or for a decision of an hypothetical case, and consequently it held that Congress, in the words of the opinion, “exceeded the limits of legislative authority, so far as it required of this court action not judicial in its nature."

There remain two cases which are very important from the point of view of political science, though of decidedly less importance from the point of view of Constitutional Law.

These are Gompers v. Bucks Stove and Range Co., and Standard Oil Company v. United States.

In Gompers v. Bucks Stove & Range Co.10 it was decided that, as the contempt proceeding against Gompers and others for breach of an injunction had been begun wholly for the purpose of giving relief to the Bucks Stove and Range Co. and not at all for the purpose of vindicating the dignity of the court, it was improper for the court to inflict a sentence of imprisonment. It was explained that a fine payable to the Bucks Company would tend to indemnify it for its loss by reason of the breach of the injunction, but that imprisonment would have no such tendency. Imprisonment would, to be sure, tend to vindicate the dignity of the court; and it was distinctly said that it remains possible for the court issuing the injunction to begin a new proceeding for the purpose of inflicting that punishment. The opinion, which was written by Mr. Justice Lamar, gives an interesting and original discussion of contempt procedure; and, as the topic has become important by reason of its connection with labor disputes, this discussion may well rank as one of the most useful and most fruitful of the year. The court declines to pass upon the question whether, in view of the First Amendment, a court may by injunctions abridge "freedom of speech or of the press,” saying: “We will not enter into a discussion of the constitutional question raised, for the general provisions of the injunction did not, in terms, restrain any form of publication. The · · · attack on this part of the injunction raises no question as to an abridgment of free speech, but involves the power of a court of equity to enjoin

from continuing a boycott which, by words and signals, printed or spoken, caused or threatened irreparable damage.”

In Standard Oil Co. v. United States 11 the question was whether the provisions of the Sherman Anti-Trust Act of 1890 were infringed by combining in the hands of a holding company the stocks of corporations trading in petroleum and its products,

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10 221 U. S. 418. u 221 U. S. 1.

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