real estate of corporations shall be assessed by a procedure different from that used in determining the value of real estate owned by individuals; 72 it may require the assessement of railroad property which escaped taxation in preceding years, without providing for the assessment of other property which escaped taxation in the same period; 73 it may prohibit railway companies from charging more for shorter than for longer hauls, except by permission of the railroad commission; 74 it may prohibit the making of options for the purchase or sale of commodities; 75 it may prohibit contracts for the sale of corporate stock on margin; 76 and it may provide for the inspection of all mines in which more than five men are employed, and, after stipulating the fees to be charged by the inspectors, permit them to determine the number of inspections per year required by each mine." So also a municipality may forbid the use of steam-power by railways on designated streets without forbidding its use by companies which traverse other streets of the city; 78 it may forbid washing and ironing in public laundries within definite limits between prescribed hours; 79 it may prohibit the keeping of a private market within six squares of a public market,80 and it may forbid the maintenance of a cow stable within municipal limits without the permission of the municipal assembly.81 So also a saloonkeeper may be denied a renewal of his license upon the

72 New York v. Barker, 179 U. S. 279. See also F. C. & P. R. v. Reynolds, 183 id. 471.

7 F. C. & P. R. v. Reynolds, 183 U. S. 471.

74

" L. & N. R. v. Kentucky, 183 U. S. 503.

Booth v. Illinois, 184 U. S. 425.

76 Otis v. Parker, 187 U. S. 606.

"St. L. C. C. Co. v. Illinois, 185 U. S. 203.

78 Railroad Co. v. Richmond, 96 U. S. 521.

" Barbier v. Connolly, 113 U. S. 27; Soon Hing v. Crowley, ibid. 703.

so Natal v. Louisiana, 139 U. S. 621.

81 Fischer v. St. Louis, 194 U. S. 361.

ground that he is not a suitable person to conduct the business; 82 a prisoner may be tried and sentenced by a judge de facto of a court de jure; 83 a prisoner convicted of conspiracy to defraud may be subjected to a heavier sentence than is imposed on a co-conspirator; 84 judicial procedure may be regulated, provided the same course of procedure be applied to all persons under similar conditions; 85 a board of education which has not sufficient funds to maintain two high schools may exclude negroes from a high school which is maintained for the benefit of white students; 86 and a mayor may be given authority to grant or refuse permission to move buildings along the streets of a city.87 The power of enforcement by appropriate legislation, vested by the Amendment in Congress, does not authorize congressional legislation with regard to individuals, for the Amendment restrains state and not individual action; it has, therefore, been held that Section 5519, Revised Statutes of the United States, declaring it to be a crime punishable by fine and imprisonment for any two or more persons to conspire to deprive any person of the equal protection of the law is unconstitutional.88 It has also been held that the Civil Rights legislation of Congress 89 declaring that all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of inns, transportation facilities, etc., and subjecting to fine and imprisonment, and also to

82

Crowley v. Christensen, 137 U. S. 86.

83 In re Manning, 139 U. S. 504.

4 Howard v. Fleming, 191 U. S. 126.

Duncan v. Missouri, 152 U. S. 377; Tinsley v. Anderson, 171 id. 101; Maxwell v. Dow, 176 id. 581; cf. Missouri v. Lewis, 101 id. 22; Brown v. New Jersey, 175 id. 172; Minder v. Georgia, 183 id. 559.

86

Cumming v. Board of Education, 175 U. S. 528.

87 Wilson v. Eureka City, 173 U. S. 32. See also Davis v. Massachusetts, 167 id. 43; Gundling v. Chicago, 177 id. 183.

88 U. S. v. Harris, 106 U. S. 629.

89 Act 1st March, 1875, 18 Stat. 335.

a liability to damages in an action at law, any person violating the provisions of the statute, is unauthorized by the Amendment, the ground of decision being that the Amendment is prohibitory of state legislation and action, and that, therefore, it is not in the power of Congress to directly legislate for the protection of individual rights against wrong doing by individuals.90

The police power.

The

132. The police power is that function of government, by the exercise of which, all persons, who are subject to the sovereignty of the government exercising the power, are, for ends of public policy, restrained in their use, or enjoyment, of some right of person or of property. police power may attain its end by absolutely prohibiting the exercise of a particular right, or by so regulating the exercise of that right as to permit its use under conditions, and, if the power exists, the extent to which it may be exercised in any case is limited only by the will of the government, or the department thereof, in which the power may be vested, unless a restraint be imposed by organic law. It is clear that the United States cannot exercise within the territory of a state any portion of the state's police power, but it is equally clear that the United States can exercise therein whatever of the police power is applicable to the protection or regulation of the rights of person or of property which are granted by the Constitution of the United States. It may be said upon one side, that the autonomy of the states is nothing more than a name, if the police power is not to be exclusively exercised by them, and that the constitutional grant to the United States of any power which in its exercise may affect the internal

"Civil Rights Cases, 109 U. S. 3. See also Barney v. City of New York, 193 id. 430.

concerns of a state must be understood to have been made on the implied condition that its exercise is to be subject to the police power of the state. It may be said, on the other side, that, as the power of police involves a power not only to control, but also to forbid, the powers granted by the Constitution to the United States would be nugatory, if the states might veto, under the pretense of regulating. It may be repeated here as it has been said in another connection,1 that while the states did not, by the adoption of the Constitution, surrender their local powers of government, yet, nevertheless, the territorial limits of each state's jurisdiction, the grant to the United States of powers conflicting with state sovereignty, and a due regard to the right of citizens of other states, must so limit each state's otherwise unlimited police powers, that those powers shall not be so exercised as to interfere with the full exercise of the powers granted to the United States. Therefore, persons or property brought within the territory of a state in the exercise of any federal right are exempt from obstructive state control until the federal power shall have ceased to operate, and the persons, or property, on which it acted shall have merged in the mass of persons, or property, within the territory of the state.

CHAPTER XII.

THE FEDERAL SUPREMACY AND THE RESERVED RIGHTS OF THE STATES.

133. The results of federal supremacy.

134. The constitutional reservation of the rights of the states.

135. The nature and extent of those reserved rights.

136. The importance of the preservation of the rights of both the United States and the states.

The results of federal supremacy.

133. A consideration of the cases which have been cited in the preceding chapters of this book leads to the conclusion that the supremacy of the government of the United States, within its constitutional sphere of action, involves: first, the exercise of judicial power by the government of the United States for the purposes of enforcing the rights created by the Constitution, laws, and treaties of the United States, of punishing offenses against the laws of that government, and of finally determining the judicial construction of the Constitution, statutes, and treaties of the United States, and of the constitutions and statutes of the states, so far as regards subjects of federal jurisdiction; second, the exemption of all property and agencies of the federal government from state control; and third, the non-exercise by the states of powers clashing with the powers granted by the Constitution to the government of the United States.

The constitutional reservation of the rights of the states.

134. Articles IX and X of the Amendments to the Constitution declare that, "the enumeration in the Constitution of certain rights shall not be construed to deny