the Argentine Republic provided that "If any citizen of the two contracting parties shall die without will or testament in any of the territories of the other, the consul-general, or consul of the nation to which the deceased belonged, or the representatives of such consul-general or consul in his absence shall have the right to intervene in the possession, administration and judicial liquidation of the estate of the deceased, conformably for the benefit of the creditors and legal heirs." It was held in the surrogate's court of New York that under the most favored nation clause in the treaty with Italy, the privileges granted to consuls of the Argentine Republic were also granted to those of Italy, and hence the consuls of that country had the paramount right to take possession of the estates of Italian subjects dying intestate within his consulor jurisdiction and administer them.17

Under the treaty of 1832 between the United States and Russia 18 the two contracting powers have the liberty of having consuls in their respective ports, who are to enjoy the privileges and powers granted to those of the most favored nation. As the most favored nation clause of the treaty of 1853 with the Argentine Republic 19 provides that if any citizen of either of the two contracting parties should die without will or testament in the territory of the other, the consul-general or consul of the nation to which the deceased belonged, or his representative, shall have the right to intervene in the possession, administration and liquidation of the estate of the deceased, it follows that where a Russian subject dies intestate, leaving personal property, the Russian vice-consul is entitled to the appointment of administrator of the estate to the exclusion of the public administrator, who, in the absence of such a provision, would be entitled to administer 20

§ 203. Power of court to appoint attorney for absent heirs displaced by treaty.-The power of a court to appoint an attor

17 Matter of Fattosini, 33 Misc. Rep. 18, 67 N. Y. Supp. 119. The correctness of this decision was questioned by Surrogate Thomas in Matter of Logiorato, 34 Misc. Rep. 31, 69 N. Y. Supp. 507, but it was approved in Matter of Lobrasciano, 38 Misc. Rep. 415, 77 N. Y. Supp. 1040.

18 8 Stats. 848.

19 10 Stats. 1001.

20 In re Wyman, 191 Mass. 276, 114 Am. St. Rep. 601, 77 N. E. 379. But see Succession of Thompson, 9 La. Ann. 96; Sturgis v. Slacum, 35 Mass. (18 Pick.) 36; Ferrie v. Public Administrator, 3 Bradf. Sur. 249.

ney for absent heirs authorized by a provision of the code is displaced by a treaty providing that upon the death of a citizen of a foreign country in the United States, without any testamentary executor appointed by him, the consul shall have the right to appear personally or by delegate in all proceedings on behalf of the absent or minor heirs.21 As to this provision being within the scope of the treaty-making power, Mr. Justice Miller, speaking for the court, said: "It is idle to call in question the competency of the treaty-making power, nor do we think any question can be raised that the subject of this treaty under discussion here is properly within the scope of the power. That subject is the rights of French subjects to be represented here by the consul of their country. On that subject the treaty provision is plain. The treaty by the organic law is the supreme law of the land, binding all courts, state and federal."' 22

$204. State pilotage laws.--A provision in a treaty that "no higher or other duties or charges shall be imposed in any ports of the United States on British vessels than those payable in the same ports by vessels of the United States" will not supersede state pilotage laws as applied to a British vessel coming from a foreign port, because of the exemption of coastwise vessels of the United States from pilotage under the Revised Statutes of the United States, or on account of any lawful exemption of coastwise vessels created by the laws of the state.23

The regulations of a state providing for the appointment of pilots and restricting the right to pilot to those who may receive such appointment do not infringe any inherent rights guaranteed by the federal Constitution, nor do they creat a monopoly or combination forbidden by the federal anti-trust laws.24

"Succession of Robasse, 47 La. Ann. 1452, 49 Am. St. Rep. 433, 17 South. 867.

= Succession of Robasse, 47 La. Ann. 1452, 49 Am. St. Rep. 433, 17 South. 867. Said the court further: "The treaty discloses no purpose to require our courts to appoint as the attorney for the absent heirs the delegate of the French consul. Its

purpose is accomplished by placing the delegate before the court, as representing the absent heirs, and precluding any attorney to represent them."

23 Olsen v. Smith, 195 U. S. 332, 25 Sup. Ct. Rep. 52, 49 L. ed. 224.

24 Olsen v. Smith, 195 U. S. 332, 25 Sup. Ct. Rep. 52, 49 L. ed. 224.

§ 205. Trademarks protected by treaty.-Treaties frequently provide for the protection of trademarks. But what constitutes a trademark may be a subject of discussion. Under the laws of Germany, words alone, and apart from some symbol or design, are not the subject of appropriation for a trademark. The provision, however, in the treaty with Germany that citizens of that country shall enjoy in the United States the same protection as native citizens in matters of trademarks will not prevent a citizen of Germany from acquiring by prior use in the United States a trademark in a particular word.25 Nor will the provision in a treaty that if a trademark has become public property in the country of its origin, it shall likewise be free in the territory of the other party, interfere with the appropriation in this country by prior use of a word which cannot be made the subject of appropriation in the other country, party to the treaty.26

§ 206. Persons adding to the prevalence of disease.-A statute of Louisiana empowered the state board of health in its discretion to "prohibit the introduction into any infected portion of the state of persons acclimated or unacclimated or said to be immune, when in its judgment the introduction of such persons would add to or increase the prevalence of the disease." It was held that this statute was not unconstitutional as infringing upon the right and power of Congress to regulate commerce, nor was it in contravention of the treaties with France and Italy.27 This case came before the supreme court of the United States. By a divided court the statute was held not to be in conflict either with the Constitution or with any treaty. As to the claim that it conflicted with treaty provisions, Mr. Justice White, who delivered the opinion of the court, said that, assuming that the treaties were applicable, they were not intended to, and did not, deprive the government of the United States of those powers whose exercise was necessary for the health and safety of the people, and that if the treaties were to have the effect claimed,

25 Baltz Brewing Co. V. Kaiserbrauerei, 74 Fed. 222, 20 C. C. A. 402.

20 Baltz Brewing Co. V. Kaiserbrauerei, 74 Fed. 222, 20 C. C. A. 402.

"Compagnie Francaise etc. v. State Board of Health, 51 La. Ann. 645, 72 Am. St. Rep. 458, 25 South. 591, 56 L. R. A. 795.

they would be equally operative against a quarantine established by the United States as by a state government. Mr. Justice Brown, with whom was Mr. Justice Harlan, dissented, and stated that while efficient quarantine laws were necessary, there was no authority in the states to enact such laws as would conflict with treaties with foreign nations.28

§ 207. Views of majority of court.-On the point urged that the statute as applied and construed was void because it was in conflict with the treaties with Italy and France guaranteeing certain rights, privileges and immunities to the citizens of those. countries, Mr. Justice White, voicing the opinion of the court, said:

"Reliance is placed, to sustain this proposition, on the provisions of a treaty concluded with the Kingdom of Italy on February 26, 1871; on the terms of a treaty with Great Britain on July 3, 1815, as also a treaty between the United States and the Kingdom of Greece, concluded December 22, 1837, and one concluded with the Kingdom of Sweden and Norway on July 4, 1827. The treaties of other countries than Italy are referred to upon the theory that as by the treaty concluded with France on April 30, 1803, by which Louisiana was acquired, it was provided that France should be treated upon the footing of the most favored nation in the ports of the ceded territory, therefore the treaties in question made with other countries than France were applicable to the plaintiff in error, a French subject.

"Conceding, arguendo, this latter proposition, and therefore assuming that all the treaties relied on are applicable, we think it clearly results from their context that they were not intended to, and did not, deprive the government of the United States of those powers necessarily inhering in it and essential to the health and safety of its people. We say the United States, because if the treaties relied on have the effect claimed for them, that effect would be equally as operative and conclusive against a quarantine establishment by the government of the United States as it would be against a state quarantine operating upon and affecting foreign commerce by virtue of the inaction of Congress. Without

"Compagnie Francaise V. State Sup. Ct. Rep. 811, 46 L. ed. 1209.

Treaties-16

Board of Health, 186 U. S. 380, 22

reviewing the text of all the treaties, we advert to the provisions of the one made with Greece, which is principally relied upon.

"It is apparent that it provides only the particular form of document which shall be taken by a ship of the Kingdom of Greece and reciprocally by those of the United States for the purpose of establishing that infectious or contagious diseases did not exist at the point of departure. But it is plain from the face of the treaty that the provision as to the certificate was not intended to abrogate the quarantine power, since the concluding section of the article in question expressly subjects the vessel holding the certificate to quarantine detention, if, on its arrival, a general quarantine had been established against all ships coming from the port whence the vessel holding the certificate had sailed. In other words, the treaty having provided the certificate and given it effect under ordinary conditions, proceeds to subject the vessel holding the certificate to quarantine, if, on its arrival, such restriction had been established in consequence of infection deemed to exist at the port of departure. Nothing in the text of the treaty, we think, gives even color to the suggestion that it was intended to deal with the exercise by the government of the United States of its power to legislate for the safety and health of its people or to render the exertion of such power nugatory by exempting the vessels of the Kingdom of Greece, when coming to the United States, from the operation of such laws. In other words, the treaty was made subject to the enactment of such health laws as the local conditions might evoke not paramount to them. Especially where the restriction imposed upon the vessel is based, not upon the conditions existing at the port of departure, but upon the presence of an infectious or contagious malady at the port of arrival within the United States, which, in the nature of things, could not be covered by the certificate relating to the state of the public health at the port whence the ship had sailed." 29

29

Compagnie Francaise V. State Board of Health, Louisiana, 186 U. S. 380, 22 Sup. Ct. Rep. 811, 46 L. ed. 1216. The language of article 15 of the treaty with Greece referred to in the above opinion is as follows:

"Article 15. It is agreed that vessels arriving directly from the United States of America at a port within the dominions of His Majesty the King of Greece, or from the Kingdom of Greece, at a port of