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nations in treaty relations with this Government; in each case, however, the statute and treaty must be carefully ex

the state and aliens in the same circumstance and sustained the tax as valid. Appellants quote from the opinion as follows: ‘But we concur with the supreme court of Louisiana in the opinion that the treaty does not regulate testamentary disposition of citizens or subjects of the contracting powers with reference to property within the country of their origin or citizenship. The cause of the treaty was that the citizens and subjects of each of the contracting powers were or might be subject to onerous taxes upon property possessed by them within the states of the other by reason of their alienage, and it is, perhaps, to enable such citizens to dispose of their property, paying such duty only as the inhabitants of the country where the property lies pay under like conditions. The case of a citizen or subject of the respective countries residing at home, and disposing of property there in favor of a citizen or subject of the other, was not in contemplation of the contracting powers, and is not embraced in this article of the treaty. This view of that treaty is applicable to the one before us, but we fail to see wherein it supports the claim that the facts of this case do not bring it within the provisions of this treaty.

“IV. Appellants cite authorities to the effect that the states alone have the right to regulate, by legislation, descents and conveyances of real estate within their borders, and from this it is argued that the federal government has no power, by treaty,' to interfere with the right of the state in regard to the descent of property upon the death of its citizens;' that treaties made without authority are not valid; that this treaty is in conflict with the laws of Iowa, and is, therefore, of no force or effect. It may be conceded that the states alone have such power; that they alone may declare to what kindred the estate of persons dying intestate shall descend. It must also be conceded that the federal government alone has power to treat with other governments as to rights of the citizens of each within the territory of the other.

This treaty does not attempt to regulate descents of real property in Iowa. It does not declare that, when a son or daughter dies without issue, the estate shall go to the parents. It is left to the state, and Iowa has so provided. This treaty simply declares that, if that parent is disqualified by alienage, as to the citizens of these two governments, this disqualification is removed. In Article 6 of the Constitution of the United States, it is provided that this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution, or the laws of any state, to the contrary notwithstanding. Many cases may be found wherein the courts have enforced treaty stipulations, similar to this, in favor of foreign claimants; but the case of People vs. Gerke, 5 Cal. 381, is the first we find wherein the power of the federal government in this respect was questioned. In that case, Deck, a citizen of Prussia, died in

amined, as in several instances the treaty stipulations do not provide for actual inheritance, but only give certain rights

San Francisco, le ing undisposed of a larg amount of real prop in that state. Article 14 of our treaty with Prussia is the same as Article 3 of this treaty. The attorney general, on behalf of the state, denied the power of the federal government to make such a provision by treaty, and argued, as is done in this case, that to exercise such power would permit the federal government to control the internal policy of the states, and in cases like this to alter materially the statutes of descent. The court, after an able consideration of the subject, concludes as follows: 'I can see no danger which can result from yielding to the federal government the full extent of powers which it may claim from the plain language, intent, and meaning of the grant under consideration. Upon some subjects the policy of a state government, as shown by her legislation, is dependent upon the policy of foreign governments, and would be readily changed upon the principle of mutual concession. This can only be effected by the action of that branch of the state sovereignty kuown as the 'General Government;' and, when effected, the state policy must give way to that adopted by the governmental agent of her foreign relations. The reasoning and conclusion of the opinion are strongly emphasized by what is added by Justice Ryan. While the question of the power of the federal government in this respect was not directly passed upon in the following cases, they show that the courts have uniformly enforced such treaties, without doubting the power of the federal government to make them: Chirac vs. Chirac, 2 Wheaton, 259; Hauenstein vs. Lynham, 100 U. S. 483; Geofroy vs. Riggs, 133 U. S. 258 (10 Sup. Ct. Rep. 295); Fairfax vs. Hunter, 7 Cranch, 603; Carneal vs. Banks, 10 Wheaton, 189; Hughes vs. Edwards, 9 Wheaton, 489. In the recent case of Wunderle vs. Wunderle, 144 Ill. 40 (33 N. E. Rep. 195), the subject of descents and alienage is considered at length and with marked care and ability, as affected by the common law, and by statutes of the states and by treaties with the United States. In considering the effect of conflict between the statute of the state and a treaty with the United States, the court, after citing article 6 of the federal constitution, says: 'In construing this article, it has been held that provisions in regard to the transfer, devise, or inheritance of property are fitting subjects of negotiation and regulation, by the treaty-mórking power of the United States, and that a treaty will control or suspend the statutes of the individual states whenever it differs from them. Hence, if the citizen or subject of a foreign government is disqualified under the laws of a state from taking, holding, or transferring real property, such disqualification will be removed, if a treaty between the United States and such foreign government confers the right to take, hold, or transfer real property.' If it may be said that chapter 85 of the Acts of the Twenty-second General Assembly is in conflict with said treaty of January 21, 1845, reason and the authorities support the conclusion that the treaty must control.

of conversion into money, or of tenure for a limited period ; the statute in such cases is only superseded to the extent

“It follows from the conclusions we have reached that an undivided one-half of the property in question vested in Mrs. Opel upon the death of her daughter, and upon her death it passed to her children, subject to the conditions imposed by said treaty, and that the other undivided one-half passed to the heirs of John C. Hormel, deceased. The decree of the district court being in harmony with these conclusions, it is affirmed."

Doeherel vs. Hillmer, Sup. Ct. Iowa, 1897, 102 Iowa, 169, LADD, J. The treaty with Prussia of 1828 provides that on the death of any person holding real estate within the territory of the one party, where such real estate would, by the law of the land descend on a citizen or subject of the other were he not disqualified by alienage, such citizen shall be allowed a reasonable time to sell the same and to withdraw the proceeds without molestation and exempt from all duties of detraction on the part of the governments of the respective States.

The court held, relying upon Opel vs. Shoup, 100 Iowa, 407; Wilcke vs. Wilcke, 102 Iowa, 173; Schultze vs. Schultze, 33 N. E. Rep. 201; Hauenstein vs. Lynham, 100 U. S. 463, that the provisions in this treaty controled, and that the claimants who were residents of Hanover, Germany, claiming the property as heirs of their mother, who had inherited under a will of an Iowa citizen, took an absolute fee although by an act of the Legislature of Iowa a non-resident alien could only acquire and hold real property of limited value providing that within five years from the date of purchase the property is placed in the actual possession of a relative and that such occupant become a citizen within ten years. The opinion says: “ Clearly under the terms of the treaty with the king of Prussia, alienage does not affect the right of inheritance, when the heir or devisee is a citizen or subject of the country of the decedent, and this is not limited to one step in transmission."

Meier vs. Lee, 106 Iowa Rep. 303, Sup. Ct. Iowa, 1898, GIVEN, J.

In this case certain persons claimed real estate in Iowa. They were not entitled to inherit under the laws of Iowa, but they invoked the provisions of the treaty with Sweden of 1783, but the court held that they did not apply.

That part of the opinion relating to the treaty point is as follows:

“II. Appellants cite the treaty of 1783, between the king of Sweden and the United States (page 1042, Treaties and Conventions between the United States and Other Powers), and insist that, under article 6 thereof, appellants' mother was not disqualified from inheriting an interest in this land. Article 6 contains the following: “The subjects of the contracting parties in the respective states may freely dispose of their goods and effects, either by testament, donation, or otherwise, in favor of such persons as they think proper; and their heirs, in whatever place they shall reside, shall receive the succession ab intestato, either in person or by their attorney, without having occasion to take out let. lers of naturalization.' Conceding that this treaty is still in force,-a

that the disabilities are removed, although it has been held that limited fees allowed by State laws, under certain conditions, pass into absolute fees in favor of foreigners with whose government treaty stipulations exist.

A recent case in Nebraska, a Federal court decision however, establishes a similar rule for that State as to the supremacy of treaties made by the Federal Government over State statutes relating to aliens and real estate.?

$352. The rule in Tennessee.-The Supreme Court of Tennessee decided in 1826 in favor of the supremacy of treaties of the United States over all State laws; Judge Catron, who afterwards became one of the Justices of the Supreme Court was one of the justices deciding the case. His colleague discussed the treaty-making power, and the effect of treaties upon State statutes, in the following words, which show that he fully appreciated the necessity for Federal action in regard to all our foreign relations: “Shall it be allowed the State Legislatures, by their acts, to oppose and prevent the executing of a treaty in which the whole Union is interested ?

Must the whole Union, because of the misconduct of one state be forced into a war? The treaty also should be a law, operating immediately and directly upon the people. If the State Legislatures must be applied to, to pass laws for the execution of treaties, which are in any respect burthen

matter we do not determine,-we are of the opinion that it does not apply to lands. "Goods: A valuable possession or piece of property; especially, and almost universally, in the plural, goods, wares, commodities, chattels.' 'Effects: Goods, movables, personal estate.' Webster. “Goods and effects have never been held to include real estate. The demurrer was properly sustained, and the decree is therefore affirmed.”

2 Bahuaud vs. Bize, U. S. Cir. Ct. French citizens or subjects are conNebraska, 1901, 105 Fed. Rep. 485, cerned. The decision rests largely MUNGER, J.; held, that as resident upon Boyd vs. Nebraska, 143 U. S. aliens are permitted to hold real 135, and Geofroy vs. Riggs, 133 U.S. estate in Nebraska that, under the 258. The Act of the Legislature provisions of the treaty of 1853 be- of Nebraska was passed March 16, tween the United States and France, 1889 (Laws, 1889, p. 483). non-resident aliens, citizens of $ 352. France, can acquire and hold land, 1 Cornet vs. Winton, Sup. Ct. and that the state statute prohibit- Tenn. 1826, 2 Yerger (Tenn.) 143, ing non-resident aliens from acquir-|(see p. 165) CATRON and HAYing real estate by inheritance or WOOD, JJ. otherwise is inoperative so far as

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some, they will never do it. Congress applied to the State Legislatures to pass laws for the execution of the Fourth Article of the Treaty of Peace, from 1783 to 1787, and no law was ever made for the purpose. The British nation complained, and was nearly driven into a war, because of the inexecution of the treaty; and finally, the United States would have been involved in war, had it not been for the timely formation of the Federal Constitution, and the declaration contained therein, that treaties should be the supreme law, above all laws and obstructions which could stand in the way. In the United States, the unsullied honor of the nation, and the complete performance of all that it stipulates, is one of the great objects which the constitution proposes to effect.”

$ 353. The rule in Kentucky and Michigan.-In Kentucky, it was decided in 1862, that the law of the State would have to give way as soon as a treaty took effect. In Michigan the Supreme Court of the State held that “when a treaty has been made by the proper Federal authorities, and ratified, it becomes the law of the land, and the courts have no power to question or in any manner look into the powers or rights of the nation or tribe with whom it is made. The action of the treaty-making power is conclusive upon such inquiry. And when territorial rights are, by treaty, recognized as having existed in one tribe, we are bound to regard it.” 2

$ 354. The rule in Pennsylvania. The rule was adopted in Pennsylvania as early as 1788, which was prior to the Constitution going into effect. It was held that as pro

§ 353.

ing the war, and not appearing, 1 Yeaker's Heirs vs. Yeaker's was attainted with treason, and his Heirs, Ct. of Appeals, Ky., 1862, 4 estates confiscated; after peace Metcalfe (Ky.), 33, STITES, Ch. J. was declared he returned to Penn

2 Maiden vs. Ingersoll, Sup. Ct. sylvania; his estates had never been Mich. 1859, 6 Mich. 373, CAMP- taken possession of under the conBELL, J.

fiscation; he was arrested and gave $ 354.

bail; on the return the CHIEF JUSRespublica vs. Gordon, Sup. Ct. TICE decided that any proceedings Penna., 1778, 1 Dallas, 252, MC- against him “would contravene the KEAN, Ch. J.

express articles in the treaty of The defendant was included in peace and amity, entered into bean act of proclamation issued dur-tween the Uuited States of Amer


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