lature, or in the people directly. They had done away with kingly rule;-was it possible that they intended to invest the legislature with kingly power? On the contrary, the people who established the state governments intended to curb, control and restrain the legislative will by certain constitutional limitations.

The decision in the Georgia case destroys constitutional guarantees, and makes the police power a Super-constitution. A short time before the Georgia Supreme Court enunciated its doctrine, the Supreme Court of the United States in Noble State Bank v. Haskell, had placed a different king upon the throne,-public sentiment. The doctrine of that case makes state constitutions the shuttlecocks of public opinion, and substitutes for a government of laws, a government by public clamor. Mr. Justice Holmes, who delivered the unanimous opinion of the court, said:

"It may be said in a general way that the police power extends to all the great public needs. Camfield v. United States, 167 U. S. 518. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and proponderant opinion to be greatly and immediately necessary to the public welfare."

Aristotle classes civilized governments under three heads, Royalty, Aristocracy and Constitutional Government. Each may partake of some of the attributes of the others, but retain its general character. We condemn royalty, but permit the President of the United States to exercise powers far beyond any that the King of England exercises or would dare to as

of Royalty, Aristocracy and Constitutional Government. Aristotle thus points them.

out:

"Of the above-mentioned forms, the perversions are as follows: of royalty, tyranny; of aristocracy, oligarchy; of constitutional government, democracy. For tyranny is a kind of monarchy which has in view the interest of the wealthy; democracy, of the needy; one of them the common good of all." Continuing, he says: "There is doubt as to what is to be the supreme power in the state. Is it the multitude? Or the good? Or the one best man? Or a tyrant? Any of these alternatives seems to involve disagreeable consequences. If the poor, for example, because they are more in number, divide among themselves the property of the rich-is not this unjust? No, by heaven (will be the reply), for the lawful authority (i. e., the people) willed it. But if this is not injustice, pray what is?"

We now begin to see wherein comes Russia's claim to be a pure democracy. Her government is that of the multitude, and she has taken private property, and particularly land, from its former owners, and is holding and administering it for what she contends is the good of the many, -the public welfare.

If Lenine and Trotsky were asked why they abolished the "right to privately own land within the boundaries of the Russian Republic," and "confiscated without compensation for the loss incurred all land, mines, forests and waters," they would reply that it was "for the general welfare, happiness, comfort and prosperity of the people;" that the "public safety and public morals required it; that private ownership in these properties caused wealth to be accumulated in the hands of the few, and the many reduced to poverty, suffering and crime; that when poverty is widespread, men will steal to get what they cannot otherwise acquire, and women will sell their virtue to get the necessities of life. and to feed their starving children." They point to the condition of the masses in Russia under the Romanoff dynasty, and say

that "private ownership in these properties is inimical to the public welfare; producing idleness, pauperism, suffering and crime," and consequently the right of property in them "is declared not to exist in any person, association of persons or corporations." This doctrine sounds strangely familiar. Perhaps Trotsky, when living in the United States, read some of our legislative enactments and the decisions of our courts sustaining them under the doctrine of our Super-constitution, and was inspired thereby to embody them in the Russian law.

We are advised that the war has caused a social revolution out of which will come a government based on the claims of labor. There can be no doubt that there exists in this country a strong and growing public sentiment that is restive under constitutional restraints and restrictions, that would have the courts adopt a latitudinarian construction to enable the people to enact into law any new and untried doctrine that fancy may suggest or prejudice demand. That we are in great danger, the authorities in Washington fully realize. The danger that they are trying to avert is the extension to this country of the Marxian doctrine as applied in Russia, where life, liberty and property are being ruthlessly destroyed on the altar of that doctrine.

When these doctrines are sanctioned by the "prevailing morality" or advocated by a "strong and proponderant opinion," laws enacted to put them in force in this country will be sustained as a proper exercise of the police power.

That I am not unduly alarmed at the growth and prevalence of these views is seen from the drastic means being used by the federal government to get rid of those who openly teach them.

I quote now from another source, to show that the views of Trotsky are not confined to him, and that we do not accomplish much when we direct all our efforts

to checking what we call Bolshevism, but which we seem to fear to define. A great leader of those forces that are now seeking to control all governments says:

"We realize further that there can be no true freedom so long as property and power are concentrated in the hands of a few, and the democratic watchword for the struggle of the future is "Through Equality to Freedom." "

Again, "It would be idle, however, to deny that the temper of democracy after the war will not be so placable as it has hitherto been. Whether we like it or fear it, we have to recognize that in the course of the last three and a half years people have become habituated to thoughts of violence."

"We believe that the path to the democratic control of industry lies in the common ownership of the means of production; and we shall strenuously resist every proposal to hand back to private capitalists the great industries and services that have come under government control during the war."

*

"The outstanding fact of world politics at the present time * * is that a great tide of revolutionary feeling is rising in every country. Everywhere the peoples are becoming conscious of power."

Again, "When the leaders of democracy speak of Revolution-" "they intend simply to warn the dominant classes that any attempt to keep democracy fettered and subordinate is foredoomed to failure. By peaceable methods or by direct assault, socratic control." ciety is going to be brought under demo

This is no Russian Bolshevist speaking; it is Mr. Arthur Henderson, former member of the British Parliament, and of the British Coalition Cabinet, and Secretary of the English Labor Party, in his word, "The Aims of Labor."

I have quoted so extensively from this great labor leader, neither to endorse nor to combat his views, but to illustrate what I am trying to make clear, that there is a great movement on foot, aggressive and insistent, for a readjustment of American ideals of the sacredness of property and our standards of justice and equality. The

American idea of equality, is equality before the law, and must be for all alike; that legislation in favor of a class is as obnoxious as legislation against a class, and that all classes and all persons shall stand alike before the law, and there must be no special law for a particular person or a particular class. But these ideals may give way to newer ones, and other property may by law be declared not to be the subject of private ownership, and may be entirely destroyed, or confiscated to the state. Property in large manufacturing plants, or in transportation companies may be taken from the present owners and held by the state for the common good, or taken away in part, by giving to others than the present owners an interest and share in its management and earnings.

This sounds like a strange doctrine to lovers of constitutional government, but strange as it may sound, whenever the "prevailing morality" or a "strong and preponderant public opinion" demands this radical destruction of property rights, it will be justified, sanctioned and sustained by the Super-constitution that the courts have created, nurtured and deified.

The framers of our government knew that there was but one way to protect personal liberty and property from such movements, and that was to place them within the protection of written constitutions so that no law could be passed in time of great public passion, prejudice, or emotion to impair them.

Hear the words of wisdom of Chief Justice Marshall:

"Whatever respect might have been felt for the state sovereignty, it is not to be disguised that the framers of the Constitution viewed with some apprehension the violent acts which might grow out of the feelings of the moment; and that the people of the United States, in adopting that instrument, have manifested a determination to shield themselves and their property

from the effect of those sudden and strong passions to which men are exposed."

One of the early decisions of the Supreme Court of the United States thus expressed its disapproval of the doctrine that whatever is demanded by the people may be written in the law, uncontrolled by constitutional inhibition:

"It must be conceded that there are such rights in every free government beyond the control of the state. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is, after all, but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all on which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many."13

This country is in no danger from a revolution of force. No one fears or should fear the rantings of long-whiskered Russians or other foreigners against our government. The voice of every Red within our gates, raised in one loud acclaim against constitutional guarantees will be ineffectual to destroy them; while the doctrine of Mr. Justice Holmes in Noble State Bank v. Haskell, and the Georgia court in Barbour v. State, will blow away like chaff before the wind, all constitutional protection of life, liberty and property.

The time is not far distant when the radicals will see that it is not necessary to advocate the nullification of our Constitution, but that they need only to get control of legislatures and congress, and they may then write in the law the destruction of all rights of persons and property, and wipe out all contracts, and when the Constitu

(13) Loan Assn. Topeka, 20 Wall. (U. S.) 655, 22L. Ed. 455

tion is invoked to restrain them, they will have as their champion, the apotheosized Police Power, at whose feet all constitutional guarantees must humbly kneel petitioning observance, but impotent to demand it. They may then shout, "The Constitution is dead-Long live the Super-constitution!"

We come now to the war decisions, where the claim of a federal police power is first advanced by Mr. Justice Brandeis. In the case of Hamilton v. Kentucky Distilleries and Warehouse Co., decided December 15, 1919, Mr. Justice Brandeis said:

"But is none the less true that when the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by the state of its police power, or that it may tend to accomplish a similar purpose. The Fifth Amendment imposes in this respect no greater limitation upon the national power than does the Fourteenth Amendment upon state power. If the nature and conditions of a restriction upon the use or disposition of property is such that a state could, under the police power, impose it consistently with the Fourteenth Amendment without making compensation, then the United States may for a permitted purpose impose a like restriction consistently with the Fifth Amendment without making compensation; for prohibition of the liquor traffic is conceded to be an appropriate means of increasing our efficiency."

war

In marked contrast to this radical,-I almost said Red, doctrine, is the judicial utterance of Mr. Justice Bradley in the Legal Tender Cases :14

"A constitutional government, notwithstanding the right of eminent domain, can not take physical and forcible possession of all that it may need to defend the country, and is reluctant to exercise such a power when it can be avoided. It must purchase, and by purchase command materials and supplies, products of manufacture, labor, service of every kind. The

(14) 12 Wall.

The

government cannot, by physical power, compel the workshops to turn out millions of dollars' worth of manufactures in leather, and cloth, and wood, and iron, which are the very first conditions of military equipment. It must stimulate and set in motion the industry of the country. In other words, it must purchase."

The opinion of Mr. Justice Brandeis that I have quoted from seems to limit the exercise of police power by the federal government to periods when the United States is at war, but a careful analysis will disclose that it is not so limited.

The authority for the federal government to exercise police power, as claimed in this decision is predicated upon the power granted to congress by the Constitution, "To declare war," and from Sec. 8, Art. 1:

"To make all laws which may be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or any department of officers thereof."

The claim for such unlimited power was first put forth in the draft cases.15 It was then held that congress, under the authority of Sec. 8, Art. 1, could pass any law conducive to the successful termination of the war. Under this authority laws regulating eating, drinking, moving from place to place, use of fuel, and what-not, were sustained; but as this clause of the Constitution embraces not only the power to pass laws to carry into effect the power "to declare war," but every other power granted by the Constitution, it is manifest that this and subsequent decisions in effect sustain the power of congress to enact any law necessary, expedient, or desirable to carry into execution any of the powers of the government.

Following the draft cases, and the Hamilton v. Kentucky Distilleries and Warehouse Company case, came the decision in Ruppert v. Caffey et al., decided January

(15) Arver v. United States 245 U. S. 366.

5, 1920. In the opinion of the majority of the court Mr. Justice Brandeis said:

"The police power of a state over the liquor traffic is not limited to the power to prohibit the sale of intoxicating liquors. supported by a separate implied power to prohibit kindred non-intoxicating liquors so far as necessary to make the prohibition of intoxicants effective; it is a single broad power to make such laws, by way of prohibition, as may be required to effectively suppress the traffic in intixocating liquors. Likewise, the implied war power over intoxicating liquors extends to the enactment of laws which will not merely prohibit the sale of intoxicating liquors, but will effectually prevent their sale. Furthermore, as stated in Hamilton v. Kentucky Distilleries and Warehouse Company, supra, while discussing the implied power to prohibit the sale of intoxicating liquors: 'When the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend an exercise by a state of its police power.' *** The incidents attending the exercise by Congress of the war power to prohibit the liquor traffic are the same as those that attend the states' prohibition under the police power."

The distinction, if any, between this statement, and an open and avowed assertion of police power in the federal government, is a mere matter of words. From Chief Justice Marshall down to 1917, the power was but another name for the "reserved sovereignty" of the states, that could not be exercised by the federal government without destroying that reserved sover- i eignty.

I can do no better than close with the words of Mr. Justice McReynolds in his dissenting opinion in the wartime prohibition cases in which Mr. Justice Day and Mr. Justice Van Devanter joined:

THOMAS, J. This is an action brought by plaintiff against defendant as executor of the estate of Benjamin Lezer Liveson, deceased, on a "rejected claim," evidenced by a check given to plaintiff by the deceased on February 28, 1916, in the sum of $4,000, and intended as a gift to plaintiff.

From the record it appears that on March 2, 1916, the plaintiff deposited the check in question with the National Bank of Long Beach for collection; that on March 3, 1916, the check was presented to the bank on which it was drawn, and in which it is conceded the deceased had on deposit a sum approximating $9,000, and by said bank payment thereof refused, the check being returned marked "signature incorrect;" and that on March 4, 1916, Liveson, the drawer, died.

The case was tried to the court without a

complete effect to every part according to the true intendment-none should suffer emasculation by any strained or unnatural

of the plaintiff as prayed for. The appeal is from the judgment so entered, on the judgment roll alone. There is just one point,