of the obligation of contracts to the states' police power was asserted in the Feldman case in broad terms, notwithstanding which it was ruled in another case that a state could not exempt the proceeds of a life insurance policy taken out prior to the act from liability for antecedent debts.119

V. NATIONAL SUPREMACY

Chief Justice Marshall laid down the rule in McCulloch v. Maryland,120 more than a hundred years ago, that a state cannot tax an instrumentality of the national government. By the same sign, it was held in Johnson v. Maryland,121 a state may not require a post-office employee to cease driving a government motor truck in the transportation of mail over a post road until he should obtain a license from the state. Besides citing the McCulloch case Justice Holmes, speaking for the court, also quoted the following apt passage from Marshall's opinion in Osborn v. Bank of the United States:122 "Can a contractor for supplying a military post for provisions be restrained from making purchases within any state or from transporting the provisions to the place at which troops were stationed? Or could he be fined or taxed for doing so? We have not yet heard these questions answered in the affirmative." "Of course," Justice Holmes continues, "an employee of the United States does not secure general immunity from state law while acting in the course of his employment It may very well be that "when the United States has not spoken, the subjection to local law would extend to general rules that might affect incidentally the mode of carrying out the employment, as for instance, a statute or ordinance regulating the mode of turning at the corners of streets. But even the most unquestioned and most applicable of state laws, such as those concerning murder, will not be allowed to control the conduct of a marshal of the United States acting under and in pursuance of the laws of the United States."123

119 Bank of Minden v. Clement, 256 U. S., 126 citing Sturges v. Crowninshield, 4 Wheat. 197, Planters' Bank v. Sharp, 6 How. 327, and other old cases. On the other hand, see Mugler v. Kansas, 123 U. S. 623, and Manigault v. Springs, 199 U.S. The discrepancy between the two classes of decisions is explained by the fact that, in the latter, to have denied the statutes involved a retroactive operation, would have been to defeat an exigent legislative policy.

120 4 Wheat. 316.

121 254 U. S. 51.

122 9 Wheat. 738.

123 Citing in re Nea le 135 U. S. 1.

The question of state taxation of federal instrumentalities was directly raised in two cases. In one the court held that a state tax upon bank stock, state and national, at a higher rate than was imposed upon intangible personal property generally, including bonds, notes, and other evidences of indebtedness, violated section 5219 of the Revised Statutes, which provides that state taxation of national bank stock "shall not be at a greater rate than is assessed upon other monied capital."124 In the other it held that a certain railway line, the property of a private company, was subject to state taxation, despite the fact that it was utilized by the government in developing certain coal lands for the Choctaw Indians. 125 The apparent discrepancy between the two rulings is explained by a reference to the precedents, which treat national banks as in themselves instrumentalities of the national government but regard railway lines, like the one here involved, as primarily private enterprises, although performing inter alia national services.126 A sounder basis for the distinction would be, it is submitted, the will of Congress as measured by the "necessary and proper" clause.

This term the court handed down opinions in 194 cases, about 85 of which involved constitutional issues more or less directly. The "commerce" clause was involved in 12 of these cases; the "due process of law" clause of either the Fifth or Fourteenth Amendments, in 28 cases in its general sense, and in 3 cases in its procedural sense; the "equal protection" clause was invoked 10 times; the "obligation of contracts" clause, 7 times; the "self-incrimination clause," 5 times. The largest number of opinions was prepared by Justice McKenna who spoke for the court 30 times, while the late Chief Justice is represented by only 18 opinions of the court, 7 of which are hardly more than references to an eighth. Once again Justice Pitney has the longest opinion of the term to his credit, while those rendered by Justice McReynolds are usually notable for their brevity. In 35 cases dissents were announced, but opinions were rendered in only 13 of these, and in only 5 did as many as four justices dissent. The most important dissenting opinion was the dissenting-concurring opinion of Justice Pitney in the Newberry Case, which probably foreshadows what will finally be the view of the court on the constitutional question there involved.

Before the term ended the death of Chief Justice White had occurred. He was first elevated to the bench as an associate justice by Mr. Cleve124 Merchants' National Bank v. Richmond, 256 U. S.-.

125 Choctaw, O., & G. R. R. Co. v. Mackey, ibid.,

126 See Union P. R. Co. v. Peniston, 18 Wall. 5; also, Central P. R. Co. v. California, 162 U. S. 91.

land in 1893, after the Senate had rejected two other nominees through the exercise of "senatorial courtesy." Mr. White was himself a Senator from Louisiana at the time, and so his nomination escaped this blighting taboo. Upon the death of Chief Justice Fuller, President Taft nominated Justice White as the former's successor, after, it is said, a hint had come from the other justices that they would prefer that arrangement to the appointment of Mr. Hughes, who was reported to be slated for the post. Mr. Hughes was later made associate justice and Mr. Taft himself now succeeds Chief Justice White.

The late Chief Justice was a native of Louisiana and a Catholic, and received his early training in a Jesuit school. His judicial opinions are characterized by a pronounced preference for words of Latin origin, long periodic sentences, and a drastically syllogistic method. Like those of Chief Justice Marshall, they are pervaded with the spirit of debate; and they do not always avoid an additional flavor of casuistry. A fair sample of his art is to be found in his opinion in the Selective Draft cases.127 Other notable utterances were his opinions for the court in the Commodities' Clause Case128 and in the Standard Oil and Tobacco Trust Cases, 129 both of which also attest his skill as a compromiser.

A Confederate soldier in his youth, Chief Justice White died a convinced nationalist, but perhaps the phrase for which he will be longest remembered is one coined by him in the Standard Oil case "the rule of reason." The same phrase points, moreover, to his chief contribution to current constitutional theory, the encouragement he lent the doctrine that Congress' power to prohibit interstate commerce is not, as Marshall stated in Gibbons v. Ogden, 180 limited only by that body's responsibility to its constituents, but rather by judicially enforcible, even if somewhat vague, constitutional limitations, a doctrine which was exemplified in the recent child labor case.131 In his opinion in the oleomargarine case, 132 Justice White, as he then was, would fain have set up similar limitations to Congress' taxing power; but this time Marshall's influence was too potent to be overcome; and the power to tax, when wielded by the national government, still "involves the power to destroy."

LEGISLATIVE NOTES AND REVIEWS

EDITED BY WALTER F. DODD

Amendments To State Constitutions 1919-21. The following tables set forth the various amendments to the state constitutions which were submitted to the electors and voted on during the years 1919, 1920 and 1921. The information thus disclosed articulates with the last table on the same subject published in the REVIEW. Table I gives the amendments which have been submitted to a vote of the people and Table II gives information on amendments which are now pending.

Altogether, 360 proposed constitutional changes have been acted on during the three years-37 in 1919, 237 in 1920, and 46 in 1921. The total for the two years 1919 and 1920 (274) was considerably larger than that for the previous biennial period (206). The results reported indicate that 198 proposals were adopted and 101 failed. Of those submitted in 1920 (mainly at the general election in November), more than two-thirds were adopted; while of those submitted in 1919 and 1921 about two-thirds failed to carry.

The largest number of amendments voted on in one state were the 41 in Nebraska, submitted by the constitutional convention at a special election in September, 1920, all of which were adopted. In South Carolina, 35 amendments were voted on in 1920, all of which appear to have been adopted. Texas voted on 18 proposed amendments during the three years, 11 in 1919. In Missouri, 17 proposals were voted on, of which 13 were adopted. New Mexico voted on 15 measures (12 at a special election in September, 1921) of which 5 were adopted. Georgia voted on 14 proposals in 1920, all of which were adopted. Indiana voted on 13 proposals at a special election in September, 1921, only one of which was adopted. In New York, 12 amendments were acted on, 7 of which were adopted. Michigan voted on 10 proposals, of which 5 were adopted.

At least 102 proposed amendments are now pending in 24 states. Some of them must be approved by the legislature before submission to popular vote. Pennsylvania has 12 proposals, 5 to be

113 American Political Science Review, 439 (August, 1919).

voted on in November, 1922 and one in November, 1924, while 6 others require further legislative action. In New York, 10 proposed amendments have passed one legislature.

Massachusetts in 1919 voted to accept a rearrangement of its state constitution, incorporating all the amendments to the document of 1780. Several states have voted on the question of calling a constitutional convention. In Wisconsin, this action has been approved; but in California, Tennessee and Texas the proposals failed to carry. Eighteen states voted on 22 amendments relating to the suffrage. Five states (Arkansas, Michigan, Mississippi, Nebraska and North Dakota) provided for woman suffrage; but in Texas an amendment for this purpose was defeated in 1919. Proposed amendments to the same end are pending in Missouri, Pennsylvania, Vermont and Virginia. Thirteen states voted on other suffrage amendments, authorizing absent voting, or imposing restrictions such as full citizenship or ability to read. Proposed amendments relating to absent voting are pending in California and New York.

Proposed changes in the provisions relating to the initiative and referendum were voted on in three states. They were defeated in Arkansas and California; but a reduction in the number of signatures to petitions was adopted in Nebraska. North Dakota adopted an amendment providing for the recall.

A considerable number of amendments have dealt with minor changes in the structure of state government. Oregon has given the governor power to veto items of appropriations; but a proposal for this purpose in Indiana was defeated. A proposed amendment to the same effect is pending in Connecticut. A number of states have voted on changes relating to the legislature, the judiciary and state officers. Proposals for salary increases in about a dozen states were usually defeated; but in Georgia an amendment to increase judges salaries, and in Nebraska one to increase the salary of legislators, were adopted. Fourteen states voted on proposed amendments relating to local government, and eleven on proposals on education and schools, most of them of little importance. In Georgia, 4 amendments provided for the creation of new counties. In South Carolina, 32 of the 35 amendments related to debt limits in particular cities and counties. Municipal home rule charter amendments are pending in Pennsylvania and Wisconsin; and a proposed amendment in Nevada will empower the legislature to grant charter making powers to cities.