Opinion, per NICHOLS, C. J.

right to administer upon the estates of their deceased fellow countrymen, anything in the laws of the several states of the Union to the contrary notwithstanding.

There is no federal holding to the effect that the national government can constitutionally exercise any such sweeping power; indeed, within the last four years, the supreme court of the United States itself questions the right of the federal government to enter into any such engagement with a foreign power. See Rocca v. Thompson, supra.

While this is a question of power rather than policy, yet we feel that public policy, whether looked at from a national or a state standpoint, would forbid the exercise of such a power.

Shaw, J., of the supreme court of California, in the case of Estate of Ghio, 157 Cal., 552, 557, says: "It is also of grave importance because its solution in favor of the appellant necessarily ascribes to the federal government the intent, by means of its treaty-making power, to materially abridge the autonomy of the several states and to interfere with and direct the state tribunals in proceedings affecting private property within their jurisdictions. It is obvious that such intent is not to be lightly imputed to the federal government, and that it cannot be allowed to exist except where the language used in a treaty plainly expresses it, or necessarily implies it."

The constitution of the United States does reserve to the exclusive domain of the executive and the United States senate the treaty-making power, yet this grant to the federal government and the

Opinion, per NICHOLS, C. J.

denial to the several states has its limitations of power.

A treaty duly ratified has no more binding force than an act of congress generally, and as to its subject-matter clearly it cannot overstep the limitations of the federal constitution.

It would manifestly be beyond the power of the United States government to provide by treaty with Italy that subjects of Italy resident of Ohio should be entitled to exemption from execution for debts for an amount in excess of that granted citizens of Ohio, or to provide that such subjects should be entitled to obtain a divorce on the ground of desertion or wilful absence for one year, whereas to other citizens the right was limited to absence for three years.

The administration of the estates of the deceased inhabitants of a state is peculiarly a state and not a federal matter, and many of our most distinguished secretaries of state for the United States have always recognized it as a state affair.

It is clearly to be seen that in the making of the Swedish treaty full recognition was given to this fact, and the government at Washington limited the rights and prerogatives granted consuls of Sweden and of all other countries and bound itself to vouch for only such rights and privileges as the laws of each country would permit; the meaning of the word "country" being, so far as it applied to the United States, "the states of such country."

Substantially similar language is to be found in every treaty entered into between our own government and every foreign country, the form of the

Opinion, per NICHOLS, C. J.

limitation varying, sometimes reading "So far as the laws of each country will permit;" at other times reading "Conformably with the laws of the country." But in no instance can there be found a case where the government of the United States binds itself by treaty to confer any such exclusive right of administration independent of the statelaw-conformity limitation. Such a uniform construction of its own limitation of power by the federal government, existing for so long a period of time, is certainly tantamount to a declaration that the several states have, under the tenth amendment to the federal constitution, the reserved right to regulate the matter of the administration of the estates of aliens dying intestate within their jurisdictions as a strictly domestic concern.

The second proposition of the syllabus in Rocca

✓ Thompson, supra, reads: "There is no Federal probate law, but right to administer property left by a foreigner within the jurisdiction of a State is primarily committed to state law."

This does not hold, of course, that congress might not enact a probate law applicable to the administration of the estates of deceased aliens, but, taken with the "Quaere" which immediately follows the proposition just quoted, it suggests the existence of a substantial doubt in the minds of the judges of the Union's highest tribunal, the court saying: "Quaere: Whether it is within the treaty-making power of the National Government to provide by treaty with foreign nations for administration of property of foreigners dying within a State, and

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to commit such administration to consuls of the nation to which deceased owed allegiance.'

This court, however, will not undertake to decide this phase of the case. It certainly would be much more appropriate for the supreme court of the United States to determine the limitation of the federal government as to its treaty-making power, and in view of the construction given the language of the Swedish treaty of 1911 by the court of appeals of the seventh district of Ohio, it would seem that it is imperative that the supreme court of the United States give to the courts of the several states the proper construction it feels should be given this language, and at the same time define the limitation of power on the part of the federal government, if any there be, in this respect.

This court, in the instant case, has reached a conclusion different from that of the court of appeals in construing the Swedish treaty. It feels that the federal government, in entering into this engagement, has not sought to give to foreign consuls the sole, prior and paramount right of administration, as asserted by the defendant in error.

We hold that the federal government has had due regard for the rights of the several states and has not accorded any privileges to foreign consuls in conflict with the laws of all or any of the several states of the Union. The claim that these superior and paramount rights have been accorded foreign consuls rests wholly on the last clause of Article 14 of the Swedish treaty, reading: "and, moreover, have the right to be appointed as administrator of such estate."

Opinion, per NICHOLS, C. J.

If this clause stood as an independent paragraph of the treaty there would be available a good and valid argument to the effect that the federal government had assumed to ignore or set aside the laws of the several states on the subject of the administration of estates, and had granted to foreign consuls a prior and paramount right and privilege denied to any of our own citizens. But this clause, under no sensible rule of construction, can be isolated from the context of Article 14, but must be read with it, and its true meaning and intent thus ascertained. Taking the article as an entirety, it is readily to be ascertained that the right of a foreign consul to take charge of the property of the deceased pending the appointment of an administrator is subject to a positive limitation in the express language of the treaty. It can only be done "so far as the laws of each country [state] will permit."

Now this is mere custodianship-preservation only not administration. It cannot approach in importance to the matter of administration, settlement and distribution. It is temporary in its nature: implies the exercise of dominion only for the purpose of safe-keeping.

It is unthinkable that our national government would surround this limited privilege or grant of power to a foreign consul with the safeguard of conformity to state laws and in the same article and in the very next expression grant the far greater power of complete administration without restriction or limitation of any kind whatever.