The First section of the Fourteenth Amendment opens with a definition of citizenship, not only citizenship of the United States, but citizenship of the states. As declared by the Supreme Court, the main purpose of this Amendment was to establish the citizenship of the negro. To be a citizen of a state, a man must reside within the state; but it is only necessary that he should be born or naturalized in the United States to make him a citizen of the United States. The Supreme Court has declared that the right of suffrage was not one of the privileges and immunities of citizenship before the adoption of the Amendment, that at the time of its adoption suffrage was not coextensive with the citizenship of the state or universal, and "that neither the constitution nor the Fourteenth Amendment made all citizens voters."

The debates in Congress, and the declared purpose of its authors and advocates, establish beyond controversy that the primary purpose of the Fourteenth Amendment was to protect the negro race, and to force negro suffrage upon the South, by means of the penalty of a loss of its representation. The Fourteenth Amendment did not establish universal suffrage, either directly or by implication. It imposed only the penalty of reduced representation on a state that denied or abridged the right of the negro to vote, on account of his race or color.

The Second Section of the Fourteenth Amendment did not vest in Congress the power to reduce the representation of a state, which had regulated the suffrage in any manner it saw proper, provided the regulations were uniform, and did not discriminate against individuals on account of race, color or previous condition of servitude.

The Fifteenth Amendment simply invested the citizens of the United States with the right of exemption from discrimination, in the exercise of the elective franchise, on account of race, color or previous condition of servitude. Any action of a state, not directed by way of discrimination against the negro as a class, or on account of race, does not come within either amendment. As declared in Pope v. Williams, 193 U. S. 632, a state, so far as the federal constitution is concerned, might provide by its own constitution and laws that none but native-born citizens should be permitted to vote.

It follows, therefore, that the passage of the Fifteenth Amendment withdrew from Congress the constitutional power to reduce the representation of a state on account of any legislation which discriminated against the negro as a voter on account of his race. If a state passed a law which violated the provisions of the Fifteenth

Amendment, such a law was unconstitutional and void. If the law was void, it could not deny or abridge the right of the negro to vote. The courts of the country are fully competent to protect the negro in all his rights of suffrage, by rendering inoperative any hostile or discriminating legislation, in violation of the Fifteenth Amendment. The radical doctrine now asserted is that a state can be stripped of its power, punished and degraded for passing laws which, by operation of the Fifteenth Amendment, are absolutely void. Fortunately for the country, this dangerous doctrine has no warrant or support in the constitution, and was repudiated and denied by the Congress that framed the Fifteenth Amendment. The Southern states can place their reliance, not upon partisan majorities in Congress, not on the shifting sands of political expediency, not on the support of political allies, nor the endorsement of the conservative and intelligent sentiment of the country, but rather on that supreme judicial tribunal of the Republic, which has always "held with a steady and an even hand the balance between State and Federal power."

Legal Aspects of Congressional Railroad Rate Making.-RICHARD OLNEY. The former Secretary of State in a brilliant and wellreasoned article, presents three points in opposition to the right of Congress to make rates for railroads. His inquiries are: First, does the commerce clause authorize Congress to prescribe charges of foreign and inter-state carriers? Second, if it does, may Congress delegate the power to a Commission? Third, if it does, is the power qualified by the prohibition upon any preference to the ports of one state over those of another?

While the present Attorney-General contends that differential rate making is not obnoxious to the Port Preference Clause, it is believed that contention will not bear examination, because equalization of the advantages of ports is the immediate result; although the differentials also promote the interests of carriers; yet they are made primarily in the interest of ports; and are prejudicial to the producer; and must have the equalization of ports as the primary object. It therefore follows, that if Congress makes rates, the present system of port differentials must be abandoned. If Congress may make rates, is it competent to delegate that power? It is argued that the question is still open, although there are dicta in various cases in support of the affirmative answer.

It is shown that a distinction is necessarily to be made between a legitimate function and an administrative or judicial function, citing Field v. Clark, 143 U. S. 649, where the President was authorized to suspend free introduction of certain products when satisfied that

the producing country was imposing unequal duties on the products of this country. The Court said:

"The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made."

Thus it is reasoned that Congress may not authorize a Commission to make certain rates, but that if Congress legislates upon the subject it must, itself, prescribe the rates; distinguishing on this point Butterfield v. Stranahan, 192 U. S. 470, and citing in support of the author's reasoning State v. Burdge, 95 Wis. 390, and C. & N. W. Co. v. Dey, 35 Fed. 866.

It is believed that rate making for American railroads must rest for its final adoption and sanction upon the authority of the national legislature itself, and not upon any subordinate or administrative tribunal. But can Congress itself make rates? Mr. Olney argues that if the government may prescribe the charges it may also engage in the business, and if the commerce clause of the constitution gives Congress the right to make rates, government ownership is an inevitable sequence. Against such a construction is cited the decision of Chief Justice Marshall, 9 Wheat. 189, 194. The commerce clause gives the government the power to regulate trade and commerce, but from either trade or commerce itself it is excluded by the very law of its being. Both may be regulated but neither carried on.

Earlier dicta, possibly reading to the contrary, are quite irreconcilable with the recent decision in L. & N. v. Kentucky, 161 U. S. 677. And if for the reasons given the United States may not carry on the railroad business it would seem to follow that it is constitutionally incapable of prescribing their charges, for a constitutional limitation cannot be broken down by the form in which the thing is done; the Court will look through the form to the substance. By a parity of reasoning, a political organism which is not legally competent to own and carry on the business of national transportation, is likewise legally incompetent to prescribe charges for transportation by private parties.

In conclusion, railroad rate making by the national government presents legal and constitutional difficulties of the most serious character. It raises issues which concern the division of power between the several states and the United States; which have not been fully and finally passed upon by the national Supreme Court; and which, if submitted to that tribunal half or even a quarter of a century ago, would in all human probability have been determined adversely to the jurisdiction of the general government. J. D. W.

The Fraternity.

The total membership of Phi Delta Phi is 7,743; that of the American Bar Association is 2,021.

Many of the addresses and papers presented at chapter and club meetings and theses written by members are suitable for THE BRIEF, and should be secured by the chapter officers and forwarded for publication. The coöperation will be appreciated.

Faculties are coöperating more and more with the chapters as the chapters take a serious and matured view of their meetings and make their work supplement that of the law schools. Dean Reinhard of the Indiana University Law School writes that Foster chapter in choosing its initiates acts on the recommendation of the faculty. All of the faculty at the Virginia and the Syracuse Law Schools are members. The Comstock chapter at Syracuse is closely allied with their faculty, and as a result made its annual banquet of December 14 one of the most notable legal gatherings ever held in that city.

JOINT MEETINGS.

We have previously advised joint meetings of chapter and alumnus clubs so situated that such meetings could be held conveniently. The three chapters in Chicago and the chapters at San Francisco and Stanford held such meetings with excellent results. Further joint meetings should be held this year. The three New York chapters, Story at Columbia, Field at New York University, and Dwight at the New York Law School, could have an excellent meeting either by themselves or in connection with the New York alumnus club. The three Chicago chapters, Booth at Northwestern, Douglas at Chicago, and Fuller at Lake Forest, could likewise hold a meeting by themselves or in connection with the Chicago club. Minor at Virginia, and Marshall at Washington, have visited each other and could meet with the Washington alumnus club. At Boston, Choate and Webster could have a meeting, and at San Francisco Pomeroy and Miller could again meet in connection with the San Francisco club. The joint meetings that have been held have been

extremely successful, and if the above chapters arrange such meetings this year they will be pleased with the results.

PETITION OF THE EVARTS LAW CLUB.

Attention is called to the petition of the Evarts Law Club of the Brooklyn Law School, the law department of St. Lawrence University in this issue. The club consists of a strong body of young men, who have maintained club rooms and kept their organization for three years in spite of the fact that their previous petitions for a chapter were denied. Their former petitions were presented prior to the amendment to the constitution at the St. Louis convention, when petitions were sent to the chapters and acted upon by them individually. The chapters reported their vote to the Council, two negative votes rejecting a petition. By the St. Louis amendment petitions are now presented at the conventions and a one-fourth negative vote is necessary to rejection. The Evarts petition will be the first acted upon under the amendment, and it is believed that it will be granted.

The petitioners are certainly in earnest. They have an excellent library and are endorsed by the entire faculty of their law school and a great many alumni of various chapters practicing in New York City and Brooklyn, and undoubtedly would make a strong and enthusiastic chapter. If granted, there will be three chapters in New York City and the new chapter in Brooklyn. The New York Alumnus Club receives little support from Brooklyn, where some two hundred and fifty alumni are located, and a chapter, if established there, will undoubtedly result in the formation of a strong alumnus club in Brooklyn within a year after the chapter is established. We believe that the Brooklyn Law School has a promising future, and that the granting of the petition will result in general benefit to the Fraternity.

THE ALUMNUS CLUBS.

The alumnus field needs attention. THE BRIEF'S Professional Directory and the Catalogue are being used more and more in the interchange of professional business among the members of the Fraternity, and THE BRIEF and the Secretary are requested weekly to furnish names and addresses of alumni in some desired location, to whom a case can be sent. This practical work will be furthered by the issuing of the new catalogue, which is being prepared by the Secretary, but the condition of the alumnus clubs is not satisfactory.