§ 208. Dissenting views. Mr. Justice Brown, in his dissenting opinion, said on the point of the construction of the treaty stipulation: "I am also unable to concur in the construction given in the opinion of the court to the treaty stipulation with France and other foreign powers. The treaty with France of 1803 provides that 'the ships of France shall be treated upon the footing of the most favored nations in the ports above mentioned' of Louisiana. Article 15 of the treaty with Greece of December 22, 1837, set forth in the opinion, provides that vessels arriving directly from the Kingdom of Greece at any port of the United States of America, and provided with a bill of health granted by an of ficer having competent power to that effect at the port whence such vessel shall have sailed, setting forth that no malignant or contagious diseases prevailed in that port, shall be subjected to no other quarantine than such as may be necessary for the visit of the health officer of the port where such vessels shall have arrived, after which said vessels shall be allowed immediately to enter and unload their cargoes: Provided always, That there shall be on board no person, who, during the voyage, shall have been attacked with any malignant or contagious diseases; that such vessels shall not, during their passage, have communicated with any vessel liable itself to undergo a quarantine; and that the country whence they came shall not at that time be so far infected or suspected that, before their arrival, an ordinance had been issued in consequence of which all vessels coming from that the United States of America, and provided with a bill of health granted by an officer having competent power to that effect at the port whence such vessel shall have sailed, setting forth that no malignant or contagious diseases prevailed in that port, shall be subjected to no other quarantine than such as may be necessary for the visit of the health officer of the port where such vessel shall have arrived, after which said vessels shall be allowed immediately to enter and unload their cargoes; Provided, always, that there shall be on board no person who, during the voyage, shall have been attacked with any malignant or contagious disease; that such vessels shall not, during the passage, have communicated with any vessel liable itself to undergo a quarantine; and that the country whence they came shall not at that time be so far infected or suspected that, before their arrival, an ordinance had been issued in consequence of which all vessels coming from that country should be considered as suspected, and consequently subject to quarantine." 8 Stats. at Large, 506. country should be considered as suspected, and consequently subject to quarantine.' "If the law in question in Louisiana, excluding French ships from all access to the port of New Orleans, be not a violation of the provision of the treaty that vessels 'shall be subjected to no other quarantine than such as may be necessary for the visit of the health officer of the port where such vessels shall have arrived, after which said vessels shall be allowed immediately to enter and unload their cargoes,' I am unable to conceive a state of facts which would constitute a violation of that provision. Necessary as efficient quarantine laws are, I know of no authority in the states to enact such as are in conflict with our treaties with foreign nations.'' 30 § 209. South Carolina Dispensary Act.-In 1892 a statute was passed in South Carolina prohibiting the manufacture or sale of intoxicating liquors as a beverage in that state, but providing for the appointment of a commissioner who was authorized to purchase all intoxicating liquors for lawful sale in the state, and to furnish the same to certain persons designated as dispensers, who in turn should sell them on the conditions prescribed by the act. It was declared in the statute that "the manufacture, sale, barter, or exchange, or the keeping or offering for sale, barter, trade or exchange, within this state of any spirituous, malt, vinous, fermented or other intoxicating liquors, or any compound or mixtures thereof, by whatever name called, which will produce intoxication, by any person, business, firm, corporation or association, shall be regulated and conducted as provided in this act." A bill in equity was filed by certain Italian subjects against the governor and treasurer of the state, to enjoin them from carrying out the provisions of this law, and among other grounds urged, it was contended that the act was in conflict with the treaty with Italy. The court stated that the complainants had under the treaty the same rights as citizens of the United States, and that it would be absurd to say that they had greater rights. The court declared that the right to sell intoxicating liquors is within the police power of the states, and that "The police power is a right reserved by the states, and 30 Compagnie Francaise V. State Board of Health of Louisiana, 186 U. S. 380, 22 Sup. Ct. Rep. 811, 46 L. .ed. 1209. has not been delegated to the general government. In its lawful exercise, the states are absolutely sovereign. Such exercise cannot be affected by any treaty stipulations." 31 § 210. Treaty devesting state of right to tax.-A treaty may exempt a foreign citizen from the payment of a succession tax, either by direct language or by implication under the favored nation clause. The statute of Louisiana provided that "every person not domiciled in this state, and not being a citizen of any state or territory of the Union, who shall be entitled, whether as heir, legatee, or donee, to the whole or any part of the succession of a person deceased, whether such person shall have died in this state or elsewhere, shall pay a tax for the benefit of the Charity Hospital of ten per cent on all sums due, on the value of all property which may have actually been received from said succession, or so much thereof as is situated in this state, after deducting all debts due by the said succession." Resistance to a demand for the payment of this tax was based on the provisions of the Italian treaty of 1871 that: "The citizens of each of the contracting parties shall have power to dispose of their personal goods within the jurisdiction of the other, by sale, donation, testament, or otherwise; and their representatives, being citizens of the other party, shall succeed to their personal goods, whether by testament or ab intestato, and they may take possession thereof, either by themselves, or others acting for them, and dispose of the same at their will, paying such duties only as the inhabitants of the country wherein such goods are "Cantini v. Tillman, 54 Fed. 969, per Simonton, District Judge. The language of the treaty relied on in that case was: Art. 2. The citizens of each of the high contracting parties shall have liberty to travel in the states and territories of the other; to carry on trade, wholesale and retail; to hire and occupy houses and warehouses; to employ agents of their choice; and generally to do anything incident to or necessary for trade, upon the same terms as the natives of the country, submitting themselves to the laws there established. "Art. 3. The citizens of each of the high contracting parties shall receive in the states and territories of the other the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives, on their submitting themselves to the conditions imposed upon the natives."' shall be subject to pay in like cases. As for the case of real estate, the citizens and subjects of the two contracting parties shall be treated on the footing of the most favored nation." For the purpose of determining what rights were conferred by the clause that the citizens of the foreign country should, in the case of real estate, "be treated on the footing of the most favored nation," the court proceeded to examine treaties made with other nations, and as in some other treaties provisions existed declaring that foreign citizens might enjoy real property in the same manner as citizens of the United States, and should not be subjected to taxes on transfer or inheritance different from those paid by American citizens, or to taxes which should not be equally imposed, the court held that subjects of Italy were exempt from the payment of this tax levied against foreign heirs.32 Likewise, it was held that foreign citizens were exempt from the payment of this tax under the treaty with France 33 and Bavaria.34 But where the tax has become vested in the state before the conclusion of a treaty, a treaty subsequently made cannot devest the right to the tax.35 This is true, not only where the words. of the treaty are doubtful, but also even if the words of the treaty had imported such an intention.3 It was held in Louisiana that the words "personal goods" in the treaty of 1795 between the United States and Spain refer to movable property only, and that the only action taken by the two governments respecting real estate was to provide for the consequences of the special case where foreign citizens should be prohibited from inheriting real estate. Hence a succession or inheritance tax may be charged on foreign heirs and legatees.37 § 211. Criminal procedure. While a foreign citizen is entitled to the equal protection of the laws, he cannot claim more. 412. See Amat's Succession, 18 La. Ann. 403. 22 Succession of Rixner, 48 La. Ann. 563, 19 South. 601, 32 L. R. A. 189. In Succession of Robasse, 49 La. Ann. 1413, 22 South. 767, the authorities are reviewed, and Succession of Rixner, 48 La. Ann. 558, 19 South. 597, 32 L. R. A. 177, affirmed. 33 Dufour's Succession, 19 La. Ann. 391; Prevost's Succession, 12 La. Ann. 577; Marquis de Circe's Succession, Manning's Unreported Cases, 369. Crusui's Succession, 19 La. Ann. Prevost v. Greenaux, 19 How. (U. S.) 1, 15 L. ed. 572. 36 Prevost v. Greenaux, 19 How. (U. S.) 1, 15 L. ed. 572. Succession of Sala, 50 La. Ann. 1009, 24 South. 674. In the "Anarchist Cases" of Chicago it was claimed in the supreme court of the United States that certain federal questions were involved, and among other suggestions made in behalf of two of the petitioners-one of whom was born in Germany and the other in Great Britain-was that they had been denied by the state court rights guaranteed to them by treaties between the United States and their respective countries. The court said that as to this contention it was sufficient to say that no such questions were made or decided in the courts below, and they could not be raised in the supreme court of the United States for the first time. While of course it is a dictum, not necessary to the decision, yet it should be observed that Mr. Chief Justice Waite, in delivering the opinion of the court, added: "Besides, we have not been referred to any treaty, neither are we aware of any, under which such a question could be raised." 38 § 212. Consuls acting as judges.-Courts of a state may be deprived by a treaty of jurisdiction exercised by them over a certain class of actions or proceedings. The treaty between the United States and Norway provides that "the consuls, vice-consuls, or commercial agents, or the persons duly authorized to supply their places, shall have the right as such to sit as judges and arbitrators on such differences as may arise between the captains and crews of the vessels belonging to the nation, whose interests are committed to their charge, without the interference of the local authorities, unless the conduct of the crews or of the captain should disturb the order or tranquility of the Ex parte Spies, 123 U. S. 131, 8 Sup. Ct. Rep. 21, 31 L. ed. 80. That to authorize a writ of error to a state court, the question involved must have been decided in the court below, see Chappell v. Bradshaw, 128 U. S. 134, 9 Sup. Ct. Rep. 40, 32 L. ea. 370; Brooks v. Missouri, 124 U. S. 394, 8 Sup. Ct. Rep. 443, 31 L. ed. 456; Leeper v. Texas, 139 U. S. 467, 11 Sup. Ct. Rep. 579, 35 L. ed. 227; French v. Hopkins, 124 U. S. 524, 8 Sup. Ct. Rep. 589, 31 L. ed. 537; Baldwin v. Kansas, 129 U. S. 57, 9 Sup. Ct. Rep. 195, 32 L. ed. 642; |