Page:Harvard Law Review Volume 32.djvu/94

60 6o HARVARD LAW REVIEW The settled principle is not confined to cases dealing with in- terstate or foreign commerce. As Mr. Justice Holmes said in the principal case: "The manufacture of oleomargarine is as much a matter of state regulation as the manufacture of cotton cloth. Congress levied a tax upon the compound when colored so as to resemble butter that was so great as obviously to prohibit the manufacture and sale. In a very elaborate discussion the present Chief Justice excluded any inquiry into the purpose of an act which apart from that purpose was within the power of Congress. McCray v. United States, 195 U. S. 27. . . . Fifty years ago a tax on state banks, the obvious purpose and actual effect of which was to drive them, or at least their circulation, out of existence, was sustained, although the result was one that Congress had no con- stitutional power to require. The Court made short work of the argu- ment as to the purpose of the Act. 'The judicial cannot prescribe to the legislative departments of the government limitations upon the exercise of its acknowledged powers.'" ^^ Administration of local property by executors, administrators and trustees seems a matter purely of local control; and on that ground section 1 1 of the Federal Reserve Act, empowering the federal banks to act in such capacity within the state, was held invalid by the Supreme Court of Michigan. The judgment was reversed by the Supreme Court of the United States in First National Bank v. Fellows.^^ The state was held incompetent "to prohibit such business from being united by Congress with the banking function, since to do so would be but the exertion of state au- thority to prohibit Congress from exerting a power which under the Constitution it had a right to exercise." So Congress is not to be denied the right to exercise its power of eminent domain by reason of the effect on state laws or state policy .^^ Yet the passage of title to lands within the state is a matter peculiarly within the state authority. A more striking example* is with reference to the state power over militia. Before the Constitution was adopted it was generally considered that the state control over militia was essential to the « 247 U. S. 278, 279 (1918). 6» 244 U. S. 416 (1917). " Kohl V. United States, 91 U. S. 367 (1875); Chappell v. United States, 160 U. S. 499, 509, 510 (1896).