i- -/. ^' * '■■' ."<^ lOo, ^^- ^V -^ n: ^ ■? 'Si - A*- ^ j'^«c'"''*fet %<• V. . .,- ...,'1,, r- .y. ^ * .':*'>-V^. ■• - ■" - . ^^■ .0^ v>'^ ,0 ,v^ ■^. ^-., ^,,^y 0' ^, ' 'J * "^*S^ n.^' . a ^ .S^'^^ 'e^ ' * » 1 -v " ' ^ ,. * 3 N o ^ ^^> ,-f,,^^; ^ i2^ ,.0' c "^^yt'^:? ^=:f^" .^ .XV^' -'■.. ^ ^^ ' « -« ''o. .\\ o 0^ V^^^ ^^\y:^ xO o^ » ^^p_l^ ^0^ %,^' >^^a:^ % J" :i ^^\ '-'--iM^ ,#■% '.¥w: <^\ '-'J Up '- ' y- A- ^-^• ^^"^ X. ^ ■" ft ft > ,-o>\^!i:^^^ "" ,^\v- -.^o. !.\ , ^ ' " + -^ " ^ '^ /_^f^<',V ,/ x^^ "^a. ^^^-^ o 0' <^^ * 8 1 1 ' o^\x-^' CASES ON CONSTITUTIONAL LAW SELECTED BY JOHN DAY SMITH, M. A., LL. M. Lecturer on American Constitutional Law, College of Law, University of Minnesota '•:^«^^ OF CO,v , r.T^^^r? 3 1896) ^ , ST. PAUL, MINN. WEST PUBLISHING CO. 1896 .St? Copyright. 1896. BY WEST PUBLISHING COMPANY. PREFACE. The difficnlty experienced by a large body of law students in ob- taining access to the United States Supreme Court Reports has led to the preparation of this volume. Tlie cases have been selected by the author to be studied in connection with his lectures, at the Uni- versity of Minnesota, on American constitutional law. With one exception they have been taken from the United States Supreme Court Reports. For the convenience of students, the Constitution of the United States has been inserted. It is not claimed that the whole field of American constitutional law has been covered in this compilation. The design has been to present those cases only which best illustrate the more important principles, leaving to the in- structor to add to the list such cases as he may think best. JOHN DAY SMITH. Minneapolis, Minn., March 10, IS'JO. (iii)* TABLE OF CONTENTS. Establislinient and Amendment of Con- stitutions. Amendmait of the Federal Constitutiov. Hans V. State of Louisiana. Page . 3 Tlie United States and the States. S(jvereignity of the States — Treaties. Fong Yue Ting v. United States 79 The Federal Executive. Pardoning Power. Ex parte Garland 214 Federal Jurisdiction. States as Parties. Hans V. State of Louisiana 3 Jurisdiction of Supreme Court. United States v. State of Texas 9 Powers and Procedure of Federal Courts — Habeas Corjnis. Cunningham v. Neagle 16 The Powers of Congi-ess. Exclusive and Concurrent Powers. United States t. Kagama 30 Enumerated Powers. Willamette Iron Bridge Co. v. Hatch 3-1: Bowman v. Chicago & N. W. Ry. Co 41 Regulation of Commerce. Gibbons v. Ogden 57 Pensacola Tel. Co. v. Western Union Tel. Co OS Pullman's Palace-Car Co. v. Common- wealth of Pennsylvania 71 Bobbins v. Taxing Dist., Shelby County... 75 The Police Power. Police, Power Vested in Congress. Fong Yue Ting v. United States 79 Police Power of lite States. State of Minnesota v. Barber 93 Wilkerson v. Rahrer. 98 Budd V. People of State of New York 104 The Police Power— Continued. Police Power of the Sfafes— Continued. Page Bowman v. Chicago & N. W. Ry. Co 41 Chicago, M. & St. P. Ry. Co, v. Minnesota.. 113 Gibbons v. Ogden 57 Powell V. Commonwealth of Pennsylvania.. 127 The Power of Taxation. Independence of Federal and State Qoverriments. Western Union Tel. Co. v. Commonwealth of Massachusetts 131 Pullman's Palace Car Co. v. Common- wealth of Pennsylvania 71 Limitations Imposed by Federal Constitution. Hylton V. United States 135 Pollock v. Farmers' Loan & Trust Co 137 Limitations Imposed by State Constitutions. Loan Association v. Topeka 172 Civil Rights and their Protection by the Constitution. Equal Protection of the Laws. Civil Rights Cases 176 Searches and Seizures. Boyd V. United States 184 Political and Public Rights. Citizenship. Elk V. Wilkius 19S Constitutional Guaranties in Criminal Cases. Privilege against Self- Criminating Evidence- Brown v. Walker. United States Marshal.. 199 Boyd V. United States 184 liaw^s Impairing the Obligation of . Contracts. Charters as Contracts. Dartmouth College v. Woodward 202 Stone V. Mississippi 211 £x Post Facto Laws. Validity of Ex Post Facto Statutes. Ex parte Garland 214 SMITH, CONST. LAW (V)^ CASES REPORTED. Page I Page Bowman t. Chicago & N. W. Ry. Co. (8 Pullman's PaJace-Car Co. v. Common- Sup. Ct. 689. IWZ, 125 U. S. 465).. 41 wealth of Pennsylvania (11 Sup. Ct. Boyd V. United States (6 Sup. Ct. 524, 116 U. S. 616) 184 Brown v. Walker (70 Fed. 46) 199 Budd V. People of State of New York (12 Sup. Ct. 468, 14.3 U. S. 517) 104 Chicago, M. & St. P. Ry. Co. v. State of Minnesota (10 Sup. Ct. 462. 702, 134 U. S. 418) 113 Civil Rights Cases. The (3 Sup. Ct. 18. 109 U. S. 3) 176 Cunningham v. Neagle (10 Sup. Ct. 658, 135 U. S. 1) 16 Elk V. Wilkins (5 Sup. Ct. 41, 112 U. S. 94) 193 79 Fong Yue Ting v. United States (13 Sup Ct. 1016. 149 U. S. 698) Garland, Ex parte (4 YYall. 333) 214 Gibbons v. Ogden (9 Wheat. 1) 57 Hans V. State of Louisiana (10 Sup. Ct. 504, 134 U. S. 1) 3 Hylton V. United States (3 Dall. 171) 135 s Lee Joe v. United States (13 Sup. Ct. 1016, 149 U. S. 698) 79 Loan Association v. Topeka <'20 Wall. 655) 172 876, 141 U. S. 18) 71 Bobbins v. Taxing District of Shelby Co., Tennessee (7 Sup. Ct. 592, 120 U. S. 489) 75 Robinson v. Memphis & Charleston R. Co. (3 Sup. Ct. 18, 109 U. S. 3) 176 State of Minnesota v. Barber (10 Sup. Ct. 862. 136 U. S. 313) 93 Stone V. Mississippi (101 U. S. 814) 211 Trustees of Dartmouth College v. Wood- ward (4 Wheat. 518) 202 United States v. Kagama (6 Sup. Ct. 1109, lis U. S. 375) 30 United States v. Nichols (3 Sup. Ct. 18, 109 U. S. 3) 176 United States v. Ryan (3 Sup. Ct. 18. 109 U. S. 3) 176 United States v. Singleton (3 Sup. Ct. IS. 109 U. S. 3) 17f. United States v. Stanley (3 Sup. Ct. 18, 109 U. S. 3) . 176 United States v. State of Texas (12 Sup. Ct. 488. 143 U. S. 621) 9 Pensacola Tel. Co. v. Western Union Tel. Co. (96 U. S. 1) 08 People of State of New York v. Walsh (12 Sup. Ct. 468, 143 U. S. 517) 104 Pollock V. Farmers' Loan & Trust Co. (15 Sup. Ct. 673. 157 U. S. 429) 137 Powell V. Commonwealth of Pennsylva- nia (8 Sup. Ct. 992, 127 U. S. 678) 127 , ■ SMITH.CONST.IJAW (vli) Western Union Tel. Co. v. Commonwealth ofMassachusetts (8 Sup. Ct. 961, 125 U. S. 5.30) 131 Wilkerson v. Rahrer (11 Sup. Ct. 865, 140 U. S. 545) 98 Willamette Iron Bridge Co. v. Hatch (8 Sup. Ct. 811, 125 U. S. 1) 34 Wong Quan v. United States (13 Sup. Ct. 1016 146 U. S. 698) 79 CONSTITUTION OF THE UNITED STATES. We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common de- fence, promote the general Welfare, and secure the Blessings of L'berty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America^ ARTICLE. I. Section. 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Section. 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Elect- ors in each State shall have the Qualifications requisite for Electors of the jnost numerous Branch of the State Legislature. No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in Avhich he shall be chosen. Representatives and direct Taxes shall be apportioned among the several States Avhich may be included within this Union, according to their respective Numbers, [which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other persons.] i The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six. New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Vir- ginia ten. North Carolina five. South Carolina five, and Georgia three. When vacancies happen in the Representation from any State, the Execu- tive Authority thereof shall i'Ssue Writs of Election to fill such Vacancies. 1 Superseded by Fourteenth Amendments. SMITH, CONST. LAW (ix) X CONSTITUTION OF THE UNITED STATES. The Hoiise of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. Section. 3. The Senate of the United States shall be composed of two Sen- ators from each State, chosen by the Legislatm-e thereof, for six Years; and each Senator shall have one Vote. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fomth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislatm-e, which shall then fill such Vacancies. No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tem- pore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to re- moval from Office, and disqualification to hold and enjoy any Office of honor. Trust or Profit under the United States: but the Party convicted shall never- theless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Section. 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. Section. 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Mem- bers for disorderly Behaviom% and, with the Concurrence of two thirds, expel a Member. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment re- quire Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the desire of one fifth of those Present, be entered on the Journal. CONSTITUTION OF THE UNITED STATES. xi Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. Section. 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Ti-easury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. No Senator or Representative shall, during the Time for which he was elect- ed, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased dm-ing such time; and no Person holding any Office under the United States, shall be a Member of either House dm'ing his Continuance in Office. Section. 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, Avho shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be retm-ned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Ad- journment) shall be presented to the President of the United States; and be- fore the Same shall take Effect, shall be approved by him, or being disap- proved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. Section. 8. The Congi-ess shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Natm-alization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate tffe Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; xii CONSTITUTION OF THE UNITED STATES. To provide for the Punishment of counterfeiting the Securities and current Coin of tlie United States; To establish Post Othces and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writ- ings and Discoveries; To constitute Tribunals inferior to the supreme Court; To detine and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of tlie Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline pre- scribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such Dis- trict (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;— And To make all Laws which shall be necessary and proper for eaiTying into Execution the foregoing Powers, and all other Powers vested by this Consti- tution in the Government of the United States, or in any Department or Of- ficer thereof. Section. 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congi-ess prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct. Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Ap- propriations made by Law; and a regular Statement and Account of the Re- ceipts and Expenditures of all public Money shall be published from time to time. CONSTITUTION OF THE UNITED STATES. XUl No Title Of Nobility shall be gmnted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. Section. 10. No State shall enter into any Treatj% Alliance, or Confedera- tion; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No State shall, without the Consent of the Congi-ess, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for ex- ecuting it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of tJie United States; and all such Laws shall be subject to the Revision and Controul of the Congress. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as wiU not admit of delay. ARTICLE. IL Section. 1. The Executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of fom- Years, and, together with the Vice President, chosen for the same Term, be elected, as follows Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding ah Office of Trust or Profit under the United States, shall be appointed an Elector. [The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Pei'sons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directiid to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Cer- tificates, and the Votes shall then be cotmted. The Person having the great- est Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of votes, then the House of Representatives shall immediately chuse by Ballot one of them for Presi- dent; and if no Person have a majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who ^IV CONSTITUTION OF THE UNITED STATES. have equal Votes, the Senate shall chuse from them by Ballot the Vice Presi- dent.] 2 The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. No Person except a natural bora Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Otflce of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fom-teen Years a Resident within the United States. In Case of the Removal of the President from Oflice, or of his Death, Resig- nation, or Inability to discliarge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, botli of the President and Vice President, declaring what Officer shall tlien act as President, and such Officer shall act accordingly, until the Disability be re- moved, or a President shall be elected. The President sliall, at stated Times, receive for his Services, a Compen- sation, wliich shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:— "I do solemnly swear (or affirm) that I will faithfmiy execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Section. 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive De- partments, upon any Subject relating to the Duties of theu- respective Of- fices, and he shall have Power to grant Reprieves and Pardons for Olfences against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the su- preme Court, and all other Officers of the United States, whose Appoint- ments are not herein otherwise provided for, and which shall be estab- lished by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law. or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall ex- pire at the End of their next Session. Section. 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occa- sions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers: he shall take Care that the Laws be faithfully executed, and shall Commission aU the Officers of the United States. 'Superseded by Twelfth Amendment. CONSTITUTION OF THE UNITED STATES. XV Section. 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Tx'eason, Bribery, or other high Crimes and Misdemeanors. ARTICLE. III. Section. 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congi-ess may from time to time ordain and establisli. The Judges, both of the supreme and inferior Courts, shall hold their Othces diu'ing good Behaviour, and shall, at stated Times, receive for their Sei"vices, a Compensation, which shall not be dimin- ished during their continiiance in Office. Section. 2. The judicial Power shall extend to all Cases, in Law and Eq- uity, arising imder this Constitution, the Laws of the United States, and Treaties made, or which shall be made, imder their Authority ;— to all Cases aifecting Ambassadors, other public Ministers and Consuls;— to all Cases of admiralty and maritime Jurisdiction;— to Controversies to which the United States shall be a Party; — to Controversies between two or more States;— between a State and Citizens of another State; 3 — between Citizens of differ- ent States,— between Citizens of the same State claiming Lands under Grants of diffei-ent States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministei-s and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the su- preme Coiu-t shall have appellate Jurisdiction, both as to Law and Fact, witli such Exceptions, and imder sucli regulations as the Congi'ess shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or i'laces as the Congress may by Law have directed. Section. 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture ex- cept dm'ing the Life of the Person attainted. ARTICLE. IV. Section. 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Con- gress may by general LaAvs prescribe the Manner in which such Acts, Rec- ords and Proceedings shall be proved, and the Effect thereof. Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any»State with Treason, Felony, or other Crime, who shall flee fi'om Justice, and be found in another State, shall on Demand of '^ Limited by the Eleventh Amendment. XVI CONSTITUTION OF THE UNITED STATES. the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labom*, but siiall be delivered up on Claim of the Party to whom such Service or Labour may be due. Section. 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States con- cerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. Section. 4. The United States shall giuirantee to every State in this Union a Republican Form of Government, and shall protect each of them against In- vasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. ARTICLE. V. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, oi", on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Pm-poses, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fomi:hs thereof, as the one or the other Mode of Ratification may be proposed by the Congi'ess; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the fii-st Article; and that no State, without its Consent, shall be deprived of it's equal Suffrage in the Senate, ARTICLE. VL All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. 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, any Thing in the Con- stitution or Laws of any State to the Contrary notwithstanding. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bovmd by Oath or Af- firmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office of public Tiiist under the United States. CONSTITUTION OF THE UNITED STATES, XVii ARTICLE. VII. The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of Septembev in the Year of our Lord one thousand seven hundred and Eighty seven and of the Indepeudance of the United States of America the Twelfth IN WITNESS whereof We have hereunto subscribed our Names. Go: WASHINGTON— Presidt. and deputy from Virginia. Attest William Jackson, Secretary. New Hampsliire. John Langdon Nicholas Gilsfan Massachusetts. Nathaniel Goriiam RuFus King Gonnectieut, Wm : Saml Johnson Roger Sherman Neio York. Alexander Hamiltox New Jexsey. WiL : LiVrNGSTON David Brearley Wm. Paterson JoNA : Dayton Pennsylvania. B Franklin Thojias Mifflin RoBT. Morris Geo. Clymer Tiios. FiTz Simons Jared Ingersoll James Wilson Gouv Morris Dclairnre. Geo : Read Gunning Bedford juu John Dickinson Richard Bassett Jaco : Broom M((r//Iand. James McHkxry Dan op St. Tugs. Jenifer Danl Carroll Virginia. John Blair — James Madison Jr. North CaroUna. Wm : Blount RiCHD. DoBBs Spaight Hu Williamson South Carolina. ,1. Rutledge Charles Cotesworth Pincknet Charles Pinckney Pierce Butler. Georgia^ William Few Abr Bat>dwin SMITH, CONST. LAW- ?:V111 AMENDMENTS OF THE CONSTITUTION. AMENDMENTS OF THE CONSTITUTION/ FIRST. Dec. 15, 1791. Congress shall make no law respecting an estabr lishnieut of relig:ion. or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to as- semble, and to petition the Government for a redress of grievances. . SECOND. 1791. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. THIRD. 1791. No Soldier .sh.-ill, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a man- ner to be prescribed by law. FOURTH. 1791. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, sup- ported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. FIFTH. 1791. No person shall be held to answer for a capital, or otherwise infamous crime, xmless on a presentment or indictment of a Grand Jury, ex- cept in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor t>e deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. SIXTH. 1791. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and dis- trict wherein the crime shall have been committed, which district shall have been previously ascertained by law. and to be informed of the nature and cause of the accusaiion; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence. Seventh. 1791. in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rales of the common law. EIGHTH. 1791. Excessive bail shall not be required, nor excessive fines im- posed, nor cruel and unusual punishments inflicted. NINTH. 1791. The enumeration in the Constitution, of certain rights, shall not be constnied to deny or disparage others retained by the people. TENTH. 1791. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. ELEVENTH. Jan. 8, 1798. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prose- cuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. * All the Amendments to the Constitution were proposed by Congress. AMENDMENTS OF THE CONSTITUTION. XIX TWELFTH. Sept 25, 1804. The Electors shall meet in their respective states, and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-Presi- dent, and of the number of votes for each, which hsts they shall sign and certify, and transmit sealed to the seat of the g-overnment of the United States, directed to the President of the Senate;— The President of the Senate shall, in presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;— The person having the great- est number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not ex- ceeding three on the list of those voted for as President, the House of Rep- resentatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representa- tion from each state having one vote; a quoi-um for this pm-pose shall con- sist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Repre- sentatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. The person having the gi-eatest number of votes as Vice-President, shall be the Vice-President, if such num- ber be a majority of the whole number of Electors appointed, and if no per- son have a majority, then from the two highest numbers on the list, the Sen- ate shall choose the Vice-President; a quorum for the pm-pose shall consist of two-thii'ds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally in- eligible to the office of President shall be eligible to that of Vice-President of the United States. TFIIRTEBNTH. Dec. 18, 1865. Section 1. Neither slavery nor involuntaiy servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place sub- ject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. FOURTEENTH. July 28, 1868. Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citi- zens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny ta any person within its jurisdiction the equal protection of the laws. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the r^embers of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way ^.bridged, except for par- XX AMENDMENTS OF THE CONSTITUTION. ticipation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty -one years of age in such State. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congi-ess, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insiirrec^ion or reliellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove sucli disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts iucm'red for payment of pensions and bounties for services in suppressing insurrection or rebellion, sliall not be questioned. But neither the United States nor any State .slaall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for tlie loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legis- lation, the provisions of this article. FIFTEENTH. :March 30, 1870. Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on accoxmt of race, color, or previous condition of servitude. Section 2. The Congress sliall have power to enforce this article by appro- priate legislation, t ILLUSTRATIVE CASES ON CONSTITUTIONAL LAW. SMITH.CONST.LAW. ay ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS. HANS V. STATE OF LOUISIANA.i (10 Sup. Ct. 504, 134 U. S. 1.) Supreme Court of the United States. March 3, 1890. In error to the circuit court of the Unit- ed States for the eastern district of Louis- iana. ,7. D. Rouse and Wm. Grant, for plain- tiff in error. W. H. Rogers, B. J. Sage, and Alex. Porter Morse, for defendant in error. BRADLEY, J. This is an action brought in the circuit court of the United States, in December, 1884, against the state of Louisiana, by Hans, a citizen of that state, to recover the amount of certain coupons annexed to bonds of the state, issued un- der the provisions of an act of the legisla- ture approved January 24, 1874. The bonds are known and designated as the "consol- idated bonds of the state of Louisiana," and the coupons sued on are for interest which accrued January 1, 1880. The grounds of the action are stated in the pe- tition as follows : "Your petitioner avers that by the issue of said bonds and cou- pons said state contracted witli and agreed to pay the bearer thereof the principal sum of said bonds forty years from the date thereof, to-wit, the 1st day of January, 1874, and to pay the interest thereon repre- sented by coupons as aforesaid, including the coupons held by your petitioner, semi- annually upon the maturity of said cou- I)ons ; and said legislature, by an act ap- proved January 24, 1874, proposed an amendment to the constitution of said state, which was afterwards duly adopted, and is as follows, to-wit: 'No. 1. The is- sue of consolidated bonds, authorized by the general assembly of the state at its reg- ular session in the year 1874, is hereby de- clared to create a valid contract between the state and each and every holder of said bonds, which the state shall by no means and in no wise impair. The said bonds shall be a valid obligation of the state in favor of any liolder thereof, and no court shall enjoin the payment of tlie principal or interest thereof or the levy and collec- tion of the tax therefor. To secure such levy, collection, and payment the judicial power shall be exercised when necessary. The tax required for the payment of the pi-incipal and interest of said bonds shall be assessed and collected each and every year until the bonds shall be paid, princi- pal and interest, and tlie proceeds shall be paid by the treasurer of the state to the holders of said bonds as the principal and interest of the same shall fall due, and no further legislation or appropriation shall be requisite for the said assessment, and collection and for such payment from the treasury.' And petitioner furrier avers that, notwithstanding said solemn com- pact with the holders of said bonds, said state hath refused and still refuses to pay said coupons held by petitioner, and by its constitution, adopted in 1879, or- dained as follows: 'That the coupons of said consolidated bonds falling due the 1st of January, 18s0, be, and thesameis hereby, remitted, and any interest taxes collected lAffirming 24 Fed. Rep. 55. to meet said coupons are hereby trans- ferred to defray the expenses of the state government;' and by article 257 of said constitution also prescribed that 'the con- stitution of this state, adopted in 1868, and all amendments thereto, is declared to be superseded by this constitution ; ' and said state thereby undertook to repudiate her contract obligations aforesaid, and to prohibit her officers and agents executing the same, and said state claims that by said provisions of said constitution she is relieved from the obligations of her afore- said contract, and from the payment of said coupons held by petitioner, and so re- fuses payment thereof, and has prohibited her officers and agents making such pay- ment. Petitioner also avers that taxes for the payment of the interest upon said bonds due January 1,1880, were levied, as- sessed, and collected, l3ut said state unlaw- fully and wrongfully diverted the money so collected, and appropriated the same to payment of the general expenses of the state, and has made no other pro vision for the payment of said interest. Petitioner also avers that said provisions of said con- stitution are in contravention of said con- tract, and their adoption was an active violation thereof, and that said state there- by sought to impair the validity thereof with your petitioner, in violation of article 1, section 10, of the constitution of the United States, and the effect so given to said state constitution does impair said contract. Wherefore petitioner prays that the state of Louisiana be cited to answer this demand, and that after due proceed- ings she be condemned to pay your peti- tioner said sum of ($87,500) eighty-seven thousand five hundred dollars, with legal interest from January 1, 1880, until paid, and all costs of suit; and petitioner prays for general relief. " A citation being issued, directed to the state, and served upon the governor there- of, the attorney general of the state filed an exception, of which the following is a copy, to-wit: "Now comes defendant, by the attorney general, and excepts to plain- tiff's suit, on the ground that this court is without jurisdiction ratione persouse. Plaintiff cannot sue the state without its permission; the constitution and law^s do not give this honorable court jurisdiction of a suit against the state; and its juris- diction is respectfully declined. Wherefore responc\jgnt prays to be hence dismissed, with costs, and for general relief." By the judgment of the court this exception was sustained, and the suit was dismissed. See Hans v. Louisiana, 24 Fed. Rep. 55. To this judgment the present writ of error is brought; and the question is presented whether a state can be sued in a circuit court of the United States by one of its own citizens upon a suggestion tliat the case is one that arises under the constitu- tion or laws of the United States. The ground taken is that under the con- stitution, as well as under the act of con- gress passed to carry it into effect, a case is within the jurisdiction of the federal courts, without regard to the character of the parties, if it arises under the constitu- tion or laws of the United States, or, which is the same thing, if it necessarily involves ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS. a. question undersaidconstitution or laws. The language relied on is that clause of the third article of the constitution, which de- clares that "the judicial power of the Unit- ed States shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; " and the corresponding clause of the act conferring jurisdiction upon the circuit court, which, as found in the act of March 3,1875, is as follows, to-wit: " That the circuit courts of theUnited States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, * * * arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority." It is said that these jurisdictional clauses make no excep- tion arising from the character of the par- ties, and therefore that a state can claim no exemption from suit, if the case is real- ly one arising under theconstitution,laws, or treaties of the United States. It is con- ceded that, where the jurisdiction depends alone upon the character of the parties, a controversy between a state and its own citizens is not embraced within it; butitis contended that, though jurisdiction does not exist on that ground, it nevertheless does exist if the caseit.self is one which nec- essarily involves a federal question; and, with regard to ordinary parties, this is un- doubtedly true. The question now to be decided is whether it is true where one of the parties is a state, and is sued as a de- fendant by one of its own citizens. That a state cannot be sued by a citizen of another state, or of a foreign state, on the mere ground that the case is one aris- ing under the constitution or laws of the United States, is clearly established by the decisions of this court in several recent cases. Louisiana v. Jumel, 107 U. S. 711, 2 Sup. Ct. Rep. 128; Hagood v. Southern, 117 U.S. 52, 6 Sup. Ct. Rep. 608; In reAyers, 123 U. S. 443, 8 Sup. Ct. Rep. 164. Those were ca.ses arising under the constitution of the United States, upon laws com- plained of as impairing the obligation of contracts, one of which was the constitu- tional amendment of Louisiana, com- plained of in tlie present case. Relief was sought against state officers who professed to act in obedience to those laws. This court held that the suits were ^rtually against the states themselves, and were consequently violative of the eleventh amendment of the constitution, and could not be maintained. It was not denied that they presented cases arising under the constitution; but, notwithstanding tiiat, they were held to be prohibited by the amendment referred to. In tlie present case the plaintiff in error contends that he, being a citizen of Louis- iana, is not embarrassed by the obstacle of the eleventh amendment, inasmuch as that amendment only prohibits suits against a state which are brought by the citizens of another state, or by citizens or subjects of a foreign state. It is true the amendment does so read, and, if there were no other reason or ground for abating his suit, it might be maintainable; and then we should have this anomalous result, that, in cases arising under the constitution or laws of the United States, a state may be sued in the federal courts by its own citizens, though it cannot be sued for a like cause of action by the citizens of other states, or of a foreign state; and may be thus sued in the federal courts, although n(jt allowing itself to be sued in its own courts. If this is the necessary consequence of the language of the constitution and the law, tlie result is no less startling and un- expected than was the original decision of this court, that, under the language of the constitution and of the judiciary act of 1789, a state was liable to be sued by a cit- izen of another state or of a foreign coun- try. That decision was made in the case of Chisholm v. Georgia, 2 Ball. 419, and cre- ated such a shock of siirprise throughout the country that, at the finst meeting of congress thereafter, the eleventh amend- ment to theconstitution was almost unan- imously proposed, and was in due course adopted by the legislatures of the states. This amendment, expressing the will of the ultimate sovereignty of the whole country, superior to all legislatures and all courts, actually reversed the decision of the su- preme court. It did not in terms prohibit suits by individuals against the states. but declared that the constitution should not be construed to import any power to authorize the bringing of such suits. The language of the amendment is that "the judicial power of the United States shall not be construed to extend to any suit, in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state. " The supreme court had construed the judicial power as ex- tending to such a suit, and its decision was thus overruled. The court itself so understood the efiect of the amendment, for after its adoption Attorney General Lee, in the case of Hollings worth v. Vir- ginia, (3 Dall. 378,) submitted this question to the court," whether the amendment did or did not supersede all suits depending, as well as prevent the institution of new suits, against anyone of the United States, by citizens of another state." Tilghman and Rawle argued in the negative, con- tending that the jurisdiction of the court was unimpaii'ed in I'elation to all suits in- stituted previously to the adoption of the amendment. But on the succeeding day, the court delivered an unanimous opinion "that, the amendment being constitution- ally adopted, there could not be exercised any jurisdiction, in any case, past or fut- ure, in which a state was sued by the citi- zens of another state, or by citizens or subjects of any foreign state. " This view of the force and meaning of the cimendment is important. It siiows that, on this question of the suability of the states by individuals, tlie highest au- thority of this country was in accord rath- er with the minority than with the major- ity of the court in the decision of the case of Chisholm v. Georgia; and this fact lends additional interest to the able opin- ion of Mr. Justice luEUEi L on that occa- sion. The other justices were more swayed by a close observance of the letter of the AMENDMENT OE THE EEDERAIi CONSTITUTION. constitution, without re{i:ard to former experience and usage; and because the let- ter said that the judicial power shall ex- tend to controversies "between a state and citizens of another state; " and "between a state and foreign states, citizens or sub- jects, " they felt constrained to see in this language a powerto enable the individual citizens of one state, or of a foreign state, to sue another state of the Union in the federal courts. Justice Iredell, on the contrary, contended that it was not the intention to create new and unheard of remedies, by subjectingsovereign states to actions at the suit of individuals, (which he conclusively showed was never done be- fore,) but only, by proper legislation, to invest the federal covirts with jurisdiction to hear and determine controversies and cases, be ween the parties designated, that were properly susceptible of litigation in courts. Uooking back from our present stand-x)oint at the decision in Chisholm v. Georgia, we do not greatly wonder at the effect which it had upon the country. Any such power as that of authorizing the federal judiciary to entertain suits by individuals against the states had been expressly disclaimed, and even resented, by the great defenders of the constitution while it was on its trial before the Amer- ican people. As some of their utterances are directly pertinent to the question now under consideration, we deem it proper to quote them. The eighty-first number of the Federal- ist, written by Hamilton, has the follow- ing profound remarks: "It has been sug- gested that an assignment of the public securities of one state to the citizens of an- other would enable them to prosecute that state in the federal courts for the amount of those securities, a suggestion which the followingconsiderations prove to be with- out foundation : It is inherent in the nat- ure of sovereignty not to be amenable to the suit of an individual without its con- sent. This is thegeneral sense and the gen- eral practice of mankind; and the exemp- tion, as one of the attributes of sovereign- ty, is now enjoyed by the government of every state in the Union. Unless, there- fore, there is a surrender of this immunity in the plan of the convention, it will re- main with the states, and the danger inti- mated must be merely ideal. The circum- stances which are necessary to produce an alienation of state sovereignty were dis- cussed in considering the article of taxa- tion, and need not be repeated here. A re- currence to the principles there established will satisfy us that there is no color to pretend thatthestate governments would, by the adoption of that plan, be divested of the privilege of paying their own debts In their own way, free from every con- straint but that whicli flows» from the obligations of good faith. The contracts between a natic^nand individuals are only binding on the conscience of the sovereign, and have no pretension to a compulsive force. They confer no right of action inde- pendent of the sovereign will. To what purpose would it be to authorize suits against states for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting state ; and to ascribe to the federal courts by mere, implication, and in destruction of a prcyexisting right of the state governments, a power which would involve such a con- sequence, would be altogether forced and unwarrantable. " The obnoxious clause to which Hamil- ton's argument was directed, and which was the ground of the objections which he so forcibly met, was that which declared that "the judicial power shall extend to all * * * controversies between a state and citizens of another state, * * * and be- tween a state and foreign states, citizens, or subjects. " It was argued by the oppo- nents of the constitution that this clause would authorize jurisdiction to be given to the federal courts to entertain suits against a state brought by the citizens of another state or of a foreign state. Ad- hering to the mere letter, it might be so, and so, in fact, the supreme court held in Chisholm v. Georgia; but looking at the subject as Hamilton did, ana as Mr. Justice Iredell did, in the light of history and ex- perience and the established order of things, the views of the latter wereclearly right, as the people of the United States in their sovereign capacity subsequently de- cided. But Hamilton was not alone in protest- ing against the construction put upon the constitution by its opponents. In the Vir- ginia convention the same objections were raised bj' George Mason and Patrick Hen- ry, and were met by Madison and Marshall as follows. Madison said: "Its jurisdic- tion [thefederal jurisdiction] in controver- sies between a state and citizens of anoth- er state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The only operation it can have is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court. This will give satisfaction to indiA'iduais, as it will prevent citizens on whom a state may have a claim being- dissatisfied with the state courts. * * * It appears to me that this [clause] can have no operation but this : to give a citi- zen a right to be heard in the federal courts, and, if a state should condescend to be a party, this court may take cogni- zance of it. " 3 Elliott, Debates, 533. Mar- shall, in answer to the same objection, said : " With respect to disputes between a state and the citizens of another state, its jurisdiction has been decriedwith unusual vehemence. Ihope that nogentlemau will think that a state will be called at the bar of the federal court. * * * It is not ra- tional to suppose that the sovereign pow- er should be dragged before a court. The intent is to enable states to recoverclaims of individuals residing in other states. * * * But, say they, there will be pai*- tiality in it if a state cannot be a defend- ant; if an individual cannot proceed toob- 'tain judgment against a state, though he may be sued b^' a state. It is necessary to be so, and cannot be avoided. I see a diffi- culty in making a state defendant which does not prevent its being plaintiff. " Id. 5.55. It seems to us that these views of those ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS. ^reat advocates and defenders of the con- stitution were most sensible and just, and tliey api^ly equally to the pi'esent case as to that then under discussion. Tiie letter is appealed to now, as it was then, as a f?round for sustaining" a suit brought by an individual against a state. The reason against it is as strong in this case as it was in that. It is an attempt to strain the constitution and thelawtoa construc- tion never imagined or dreamed of. Can we suppose that, when the eleventh amendment was adopted, it was under- stood to be left open for citizens of a state to sue their own state in the federal courts, while the idea of suits by citizens of other states, or of foreign states, was indignantly rei)elled? Suppose that con- gress, when proposing the eleventh amend- ment, had appoided to it a proviso that nothing therein contained should prevent a state from being sued bj' its own citizens in cases arising under the constitution or Jaws of the United States, can we imagine that it would have been adopted by the states? The supposition that it woidd is almost an absurdity on its face. The truth is that the cognizance of suits and actions unknown to the law, and for- bidden by the law, was not contemjjla ted by the constitution when establishing the judicial power of the United States. Some things, undoubtedly, were made jtistifiable which were not known as such at the common law; such, for exami)le, as con- troversies between states as to boundary lines, and other questions admitting of judicial solution. And yet thecaseof Penn V. Lord Baltimore, 1 Ves. Sr. 444, shows that some of these unusual subjects of liti- gation were not unknown to the courts even in colonial times; and several cases of the same general character arose under the articles of confederation, and were brought before the tribunal provided for that purpose in those articles. 131 U. S. App. .50. The establishment of this new branch of jurisdiction seeuied to be neces- sary from the extinguishment of diplo- matic relations between the states. Of other controversies between a state and another state or its citizens, which, on the settled princijjles of public law, are not subjects of judicial cognizance, this court has often declined to take jurisdii-tion. See Wisconsin v. Insurance Co., lL'7 U. S. 265, 288, 2S9, 8 Sup. Ct. Rep. 1370, and cases there cited. The suability of a state, without its con- sent, was a thing unknown to the law. This has been so often laid down and ac- knowledged by courts and jurists that it is hardly necessary to be formally asserted. It was fully shown by an exhaustive ex- amination of the old law by Mr. Justice luKDKLL in his opinion in Chisholm v. Georgia; and it has been conceded in every case since, where the question has, in any way, been presented, even in the cases which have gone furthest in sustaining suits against the officers or agents of states. Osborn v. Bank,9 Wheat. 7:JS; Da- vis V. Grav, 16 Wall, 203; Board, etc. v. McComb, 92 U. S. 531; U. S. v. Lee, 106 U. S. 196, 1 Sup. Ct. Rep. 240; Poindexter v. Greenhow, 109 U. S. 63, 3 Sup. Ct. Rei). S; Virginia Coupon Cases, 114 U. S. 369, 5 Sup. Ct. Rep. 903-934, 962, 1020. In all these cases the effort was to show, and the court held, that thesuits were not against the stateor the United States, but against the individu- als ; conceding that,if they had been against either the slate or the United States, they could not be maintained. Mr. Webster stated the law with precision in his letter to Baring Bros. & Co. of October 16, 1839. Works, vol. 6, p. 537. "The security for state loans, "he said, "is the plighted faith of the estate as a political community. It rests on the same basis as other contracts with established governments, — the same basis, for example, as loans made by the United States under the authority of con- gress ; that is to say, the good faith of the government making the l(e sued? * * * No sovereign state is liable to be sued without herconsent. Underthearticles of confederation, a, state could be sued only in cases of boundary. It is believed that there is no case where a suit has been brought, at any time, on bills of credit against a state; and it is certain that no^ suit could have been maintained, on this ground, prior to the constitution." "It may be accepted as a point of dei)arttirfr unquestioned, "said Mr. Justice Mili.kh in Cunningham v. Railroad Co., 109 U. S. 446, 451, 3 Sup. Ct. Rep. 292, " that neither a state nor the United States can be sued as defendant in any court in this country without theirconsent, except in the limited class of cases in which a state may be made a party in the supreme court of the United States by virtue of iIk^ origina! ju- risdiction conferred on this court bj- the constituticni. " Undoubtedly a state maybe sued by its own consent, as was the case in Curi-an V.Arkansas, 15 How. 304, 309, and in Clark V. Barnard, 108 U.S. 436, 447,2 Sup.Ct. Rep. 878. The suit in the former case was prose- cuted by virtue of a statelavv which the leg- islature passedin conformity to theconsti- tution of that state. But this court de- cided, in Beers v. Arkansas, 20 How. 527, that the state could rejoealthat law at any a time; that it was not a contract within the te'-ms of the constitution prohibiting: the passage of state lawsimi)aii'ing the ob- ligation of a contract. In that case the law allowing the state to besued was moditied pending certain suits against the state on its bonds, so as to require the bonds to be filed in court, which was objected to as an unconstitutional change of the law. Chief Justice Ta.mcv, delivering the opinion of the court, said : " It is an established prin- ciple of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and i)ermission; but it may, if it thinks proper, waive this privilege, and I)ermit itself to be made a defendant in a suit by individuals, or by another state. And, as this permission is altogt-ther vol- untary on the part of the sovereignty, it AMENDMENT OF THE FEDERAL CONSTITUTIOX. follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it maj^ suppose that jus- tice to the public requires it. * * * The prior law was not a contract. It was an ordinary act of legislation, prescribing the conditions upon which the state consented to waive the privilege of sovereignty. It contained no stipulation that these regula- tions should not be modified afterwards if, upon experience, it was found that further provisions were necessary to protect the public interest; and no such contract can be implied from the law, nor can this court inquire whether the law operated hardly or unjustly upon the parties whose suits were then pending. That was a question for tlie consideration of the legislature. They might have repealed the prior law al- together, and put an end to the jurisdiction of their courts in suits against the state, if they had thought proper to do so, or prescribe new conditions upon wliich the suits might still be allowed to proceed. In exercising this latter power the state vio- lated no contract with the parties. " The same doctrine w^as held in Railroad Co. v. Tennessee, 101 0. S. 387, 339; Railroad Co. V. Alabama, Id. 832; and In re Ayers, 123 U. S. 443, 505, 8 Sup.Ct. Rep. 104. But besides the presumption that no anomalous and unheard-of proceedings or suits were intended to be raised up by the constitution, — anomalous and unheard of when the constitution was adopted, — an additional reason why the jurisdiction claimed for the circuit court does not exist is the language of the act of congress by which its jurisdiction is conferred. The words are these: "The circuit courts of the United States shall have original cog- nizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, * * * aris- ing under the constitution or laws of the United States, or ti-eaties," etc. "Concur- rent with the courts of thesevei-al states." Does not this qualification show that con- gress, in legislating to carry the constitu- tion into effect, did not intend to invest its courts with any new and strange jurisdic- tions? The state courts have no power to entertain suits by individuals against a state without its consent. Then how does the circuit court, having onlj' concurrent jurisdiction, acquire any such power? It is true chat the same qualification existed in the judiciary act of 1789, which was be- fore the court in Chisholm v. Georgia, and the majority of the court did not think that it was sufficient to limit the jurisdic- tion of the circuit court. Justice Irkdeli. thought differently. In view of the man- ner in which that decision was received by the country, the adoption of th^ eleventh amendment, the light of history, and the reason of the thing, we think w^e are at lib- erty to prefer Justice Iredell's views in this regard. Some reliance is placed by the plaintiff upon the observations of Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 410. The chief justice was there con- sidering the power of review exercisable by this court over the judgments of a state court, wherein it might be necessary to make the state itself a defendant in en-or. He showed that this power was absolute- ly necessary in order to enable the judici- ary of the United States to take cogni- zance of all cases arising ui^iei" the consti- tution and laws of the United States. He also showed that making a state a defend- ant in error was entirely different fi-om suing a state in an original action in pros- ecution of a demand against it, and was not within the meaning of the eleventh amendment ; that the prosecation of a writ of error against a state was not the pros- ecution of a suit in the sense of that amend- ment, which had reference to the i)rosecu- tion by suit of claims against a state. " Where, "said the chief justice, "a state ob- tains a judgment against an individual, and the court rendering such judgment over- rules a defense set up under the constitution part of the treaty, having the 10 FEDERAL JURISDICTIOIN^. same force as if it had been inserted there- in. Article 4, S St. p. 250. At the date of the ratification of this treaty tlie country now con.stituting Texas belonged to Mexico, part of the monarchy of Spain. Subsequently, in 1824, Mexico became a separate, independ- ent power, whv?rel)y the boundary line desifiuated in the treaty of ISll) became the line between the United States and Mexico. On the 12th of January, 1828, a treaty between the United States and Mexico was concluded. aTid subsequently, April 5, 1S32, was ratified, whereby, as between those jjoverninents, the validity of the limits defined by the treaty of 1819 was confirmed. 8 St. p. 872. By a treaty concluded April 25, 1838, be- tween the United States and the republic of Texas, which was ratified and pro- claimed October 12 and 13. 18o8, it was de- clared that the treaty of limits made and concluded in 1S2S between the United States and Mexico "is binding upon the republic of Texas;" and in order to prevent future disjjutes and collisions in regard to the boundary between the two countries, as designated by the treaty of 1828, it waH stipulated: "article I. Each of the contracting par- ties shall appoint a commissioner and sur- veyor, who shall meet, l>efore tlie termina- tion of twelvemonths from the exchange of tlie ratification of this convention, at New Orleans, and proceed to run and mark that portion of the said boundary which extends from the mouth of the Sa- bine, where that river enters the Gulf of Mexico, to the Red river. 'J'hey shall make out jjlans and keep journals of their pro- ceedings, and the result agreed upon by them shall be considered as part of this convention, and shall have the same force as if it were inserted therein. » * * "Art. 2. And it is agreed that, until this line is marked out, as is provided for in the fru-egoing article, each of the contract- ing i)arties shall continue to exercise juris- diction in all territor^^ over which its ju- risdiction has hitherto been exercised, and that tiie remaining portion of the said boundary line shall be run and marked at such time hereafter as may suit the con- venience of both the contracting parties, until which time each of the said parties shall exerrise, without the interference of the other, within the territory of which the boundary shall not have been so marked and run, jurisdiction to the same extent to which it has l)een heretofore usually exercised." 8 St. p. 511. The treaty of 1838 hnd not been executed on the 1st day of March, 1845, when con- gress, by joint rescjlution, consented that "the territory properly included within, and rightfully belonging to, the republic of Texas, may be erected into a new state," upon certain conditions. 5 St. p. 797. Those conditions having been accepted, Texas, by a joint resolution of congress, passed December 29, 1845, was admitted into the Union on an equal footing with the original states in all respects what- ever. 9 St. p. 108. By an act of congress approved Septem- ber 9, 1850, certain propositions were made on behalf of the United States to the state of Texas, to become obligatoiy upon the parties when accepted by Texas, if such acceptance was given on or l)efore Decem- ber 1, 18.50. One of those pi-()positi(jns was^ that Texas would agref that its boundary on the north should commence at the point at which the meridian of 100 degrees west from Greenwich is intersect- ed by the parallel of 86 degrees 80 minutes north latitude, and run from that point due west to the meridian of 103 degrees west from (ireen wich ; thence due south to the thirty-second degree of north latitude; thence, on the parcillel of32degrees of north latitude, to the Rio Bravo del Norte; and thence with the channel of said river to the Gulf of Mexico,— another, tliat Texas cede to the United States all her claim to territory exteri(jr to the above limits and boundaries. In consideration of said es- tablishment of boundaries, cession of claim to territory, and relinquishment of claims, the United States agreed to pay to Texas the sum of $10,000,000 in a stock bearing 5 per cent, interest, and redeema- ble at the end of 14 years, the interest paj'- able half-yearly at the treasury of the United States. 9 St. p. 44G, c. 49. By an act of assembly apjiroved Novem- ber 25, 1850, the above propositions were accepted by Texas, and it agreed to be bound bj- them according to their true im- port. During the whole period of nearly 40 years succeeding the treaty of 1819, no ac- tion, except as above indicated, was taken to settle the boundary line in question. But in the year 18.59 a joint commissi(m on the part of the United States and Texas commenced the work of running that line, but separated without reaching any con- clusion. Nevertheless, in 18(50 the commis- sioner upon the part of the United States completed the work, without the co-oper- ation of the commissioner of Texas, and reported the result to the general land- office in 1861. Acccjrding to the determi- nation of the commissioner on the part of the United States, and under certain sur- veys made fi'om 1857 t(j 18.59, pursuant to a contract between two persons named Jones and Brown and the commissioner of Indian affairs, the true dividing and boundary line between t!ie United States and the United Mexican States began where the 100th meridian touched the main Red river aforesaid, running thence along the line or eourse of what is now known as the "South Uork of the Red River," or "River of the Treaty of 1819. " After the commissioners of the United States and Texas had failed to reach an agreement the legislature of Texas, by an act approved February 8, i860, declared "that all the territory contained in the following limits, to-wit; Beginning at the confluence of Red river and Prairie Dog river; thence running up Red river, passing the mouth of South Fork and fol- lowing main or North Red river to its in- tersection witli the twenty-third degree of west longitude; thence due north across Salt Fork and Prairie Dog river, and thence following that river to the place of beginning,— be, and the same is hereby, created into a county to be known by the JURISDICTION OF SUPREME COURT. II name and style of the 'County of Greer.'" Anf] by acts of its officers, proceeding un- der its statutes, Texas assumed and exer- cised control and jurisdiction of the terri- tory constituting what is called the "Countj' of Greer." Notwithstanding those assertions of control and jurisdiction, Texas, by an act approved Ma.v 2, 1882, made provision for running and marking the line in question. That act provided for the appointment by the governor of a suitable person or per- sons who, in conjunction with such per- son or persons as might be appointed bj' or on behalf of the United States for the same purpose, should run and mark the boundary line between the territories of the United States and the state of Texas, in order that "the question may be defi- nitely settled as to the true location of the one hundredth degree of longitude west from London, and whether the North Fork of Red river, or the Prairie Dog Fork of said river, is the true Red river desig- nated in the treaty between the United States and Spain, made Februarv 22, 1S19. " By an act of congress, approved Jan- uary 31, 1885, provision was made for the appointment of a commission by the presi- dent to act with the commission to be ap- pointed by the state of Texas in ascer- taining and marking the point where the 100th meridian of longitude crosses Rfd river, in accordance with the terms of the treaty of 1819; the person or persons so appointed to make report of his or their action in the premises to the secretary of the interior, who should transmit the same to congress at its next session after the report was made, 23 St. p. 296, c. 47. Unaer the lust-mentioned acts a joint coni mission was organized, and it assem- bled at Galveston, Tex., on February 23, 1886. Being unai)le to agree as to wheth- er the stream now known as the "North Fork of the Red River," or that now called the "South Fork or Main Red Riv- er, " was the river referred to in the treaty of 1819, the joint commission adjourned sine die with the understanding that each commission would make its report to the proper authorities and await instructions. The commissioners on tlie part of the United States reported that "the Prairie Dog Town Fork is the true boundary, and that the monument should be placed at the intersection of the one hundredth merid- ian with this stream," while the commis- sion on the part of Texas repcjrted tha t "the North Fork of Red river, as now named and deiinefited on the maps, is the Rio Roxo or Red River delineated on Mel- ish's maps described in the treaty of Feb- ruary 22. 1819, and is the boundary line of said treaty to the point where the one hundredth degree of west longitude crosses the same. " The United States claims to ha'S'e juris- diction over all the territory acquired by the treaty of 1819, containing 1,. 511, 576.17 acres, between what has been designated as the " Prairie Dog Town Fork, or Main Red River," and the North Fork of Red river, being the extreme portion of the In- dian Territory lying west of the North Fork of the Red river, and east of the one- hundredth meridia:! of west longitude from Greenwich, and that its right to said territory, su far from having been relin- quished, has been continuously asserted from the ratification of the treaty of 1819 to the present time. The bill alleges that the state of Texas, without right, claims, has taken posses- sion of, and endeavors to extend its lasv.s and jurisdiction over, the disputed ter- ritory, in violation of the treaty rights of the United States; that, during the year 1887, it gave public notice of its pur- pose to survey and place upon the market for sale, and otherwise dispose of, that ter- ritory ; and that, in consequence of its pro- ceeding to eject bona tide settlers from cer- tain portions thereof. President Cleveland, bj^ proclamation issued December 30, 1S87, warned all persons, whether claiming to act as officers of the county of Greer or otherwise, against selling or disposing of, or attempting to sell or dispose of, any of said lands, or from exercising or at- tempting to exercise any authoiity over them, and "against purchasing any i)art of said territory from any person or per- sons whatever." 25 St. p. 1483. The relief asked is a decree determining the true line between the United States and the state of Texas, and whether the land constituting what is called "Greer County " is within the boundary and ju- risdiction of the United States or of the state of Texas. The government pra3'S that its rights, as asserted in the bill, be established, and that it have such other relief as the nature of thecase may require. In supi)ort of the contention that the ascertainment of the boundary between a territory of the United States and one of the states of the Union is political in its nature and character, and not suscep- tible of judicial determination, the defend- ant cites Foster v. Neilson, 2 Pet. 2,53, 307, 309; Clierokee Nation v. Georgia, 5 Pet. 1, 21; U.S. V. Arredondo, 6 Pet. 691, 711; and Garcia v. l^ee, 12 Pet. 511, 517. In Foster v. Neilson, which was an ac- tion to recover certain la mis in Louisiana, the controlling question was as to whom the country between the Iberville and the Perdido rightfully belonged at the time the title of the plaintiff in that case was acquired. The United States, the court said, had perseveringly insisted that by the treaty of St. Ildefonso, made October 1, 1800, Spain ceded the disputed territorj' as part of Louisiana to France, and that France, by the treaty of Paris of 1803, ceded it to the United States. Spain in- sisted that the cession to France compre- hended only the territory which at that time was denominated " Louisiana. " Aft- er examining various articles of the tieaty of St. Ildefonso, Chief Justice Mar- shall, speMking for the court, said: "In a' controversy between two nations con- cerning national boundary, it is scarcely possible that the courts of either should refuse to abide by the measures adopted by their own government. There being no common tribunal to decide between them, each determines for itself on its own rights, and if they cannot adjust their dif- ferences peaceably the right remains with the strongest. The judiciary is not that department of the government to which 12 FEDERAL JUR1SDICTI0:N". the assertion of its interests ajrainst for- eign powers is confided ; and its duty, com- monly, is to decide upon individual rights, according to those principles which the po- litical departments of the nation liave es- tablished. If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous." Again: "Aft- er these acts of sovereign power over the teriitory in dispute, asserting the Ameri- can construction of tlie treaty' by which the government claims it, to maintain the opposite construction in its own courts would certainly be an anomaly in the his- tory and practice of nations. If those de- jjartments which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally as- serted its rights of dominion over a coun- try of which it is in possession, and which itclaims under a treaty; if the legislature has acted on the construction thus assert- ed, — it is not in its own courts that this con- slrnction is to be denied. A (ui«-stlon like this, respecting the boundaries of nations, is, ais has been truly said, more a i)olittcal than a legal question; and in its discus- sion the c, 10 Sup. ct. Rep. 504, referred to what had been said by certain statesmen at the time the constitution was under submission to the people, and said : "The letter is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual iigainst a state, * * * The truth is that the cog- nizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the constitution when establishing the judicial power of the United States. Some things, undoubt- edl3% were made justiciable which were not known as such at the common law ; such, for example, as controversies between states as to boundary lines, and other (juestions admitting of judicial solution. And yet the «'ase of Penn v. Lord Balti- more, 1 Ves. Sr. 444, shows that some of these unusual subjects of litigation were not unknown to the courts even in colo- nial times; and sevei-al cases of the same general character arose under the ariicles of confederation, and were brought before the tribunal provided for that purt)ose in those articles. 131 U. S. Append. 50. The establishment of this new branch of juris- diction seemed to be necessary from the extinguishment of diplouiatic relations between the states." That case, and others in this court relating to the sua- bility of states, proceeded upon the broad ground that "it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its con- sent. " The question as to the suability of one government by another government rests upon wholly different grounds. Texas is not called to the bar of this court at the suit of an individual, but at the suit of the government established for the com- mon and et^ual benefit of the people of all the states. The submission to judicial solution of controversies arisitig between these two governments, "each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other," ( Mc- Culloch V. State of Maryland, 4 Wheat. 31«, 400, 410,) but both subject to the su- preme law of the land, does no violence to the inherent nature of sovereis'ity. The states of the Union have agreed, in the constitution, that the judicial power of the United States shall extend to all cases arising under the constitution, laws, and treaties of the United States, without regard to the character of the parties, (excluding, of course, suits against a state by its own citizens or by citizens of other states, or by citizens or sub- jects of foreign states,) and equally to controversies to which the United States shall be a party, without regard to the subject of such controversies, and that this court may exercise original jurisdic- tion in all such cases "in wliich a state shall be party, " without excluding those in which tiie United States may be the op- posite party. The exercise, therefore, by this court, of such original jurisdiction in a suit brought by one state against an- other to determine the boundary line be- tween them, or in a suit brought by the United States against a state to (leter- mine the boundary between a territory' of the United States and that state, so far frt)m infringing in either case upon the sovereignty, is with the consent of the state sued. Such consent was given by Texas when admitted into the Union upon an equal footing in all respects with the other states. We are of opinion that this court has JURISDICTION OF SUPREME COURT. V jurisdiction to determine the dispnted question of boundary between the United States and Texas, It is contended that, even if this court has jurisdiction, the dispute as to bound- ar3' must be determined in an action at law, and that the act of conjjress requir- ing the institution of this suit in equity is unconstitutional and void, as, in effect, de- claring that legal rights shall be tried and determined as if they were equitable rights. This is not a new question in this court. It was suggested in argument, though not decided, in Fowler v Lind- sey, 3 Uall. 411, 413. Mr. Justice nVashixg- Tox, in that case, said : "I will not say that a state could sue at law for puch an incorporeal right as that of sovereignty and jurisdiction; but, even if a court of law would not afford a remeay, I can see no reason why a remedy should not be obtained in a court of equity. The state of New York might, I think, file a bill against the state of Connecticut, praying to be quieted as to the boundaries of the disputed territory ; and this court, in order to effectuate justice, might appoint com- missioners to ascertain and report those boundaries." But the question arose directly- in Riiode Island v. Massaeiiusetts, 12 Pet. 657, 734, which was a suit in equity in this court involving the boundary line between two states. The court said : " No court acts differently in deciding on boundary between states than on lines between separate tracts of land. If there is uncertainty where the line is, — if there is a confusion of boundaries by the nat- ure of interlocking grants, the oblitera- tion of marks, the intermixing of posses- sion under different proprietors, the ef- fects of accident, fraud, or time, or other kindred causes, — it is a case appropriate to equity. An issue at law is directed, a commission of boundary" awarded ; or, if the court are satisfied without either, they decree what and where the bound- ary of a farm, a manor, province, or state is and siiall be." When that case was be- fore tiie court at a subsequent term. Chief Justice Tanky, after stating that the case was of peculiar character, involving a question of boundary betvveen two sovereign states, litigated in a court of justice, and that there were no precedents as to forms and modes of proceedings, said: "The subject was, however, fuUj- considered at January term, 183S, when a motion was made by the defendant to dis- miss this bill. Upon that occasion the court determined to frame their proceed- ings according to those which had been adopted in the English courts in cases most analogous to this, where the bound- aries of great political bodies had been brought into question ; and, acting upon this principle, it was then decided that the rules and practice of the court of chancery should govern In conducting this suit to a final issue. The reasoning upon which that decision was founded is fully stated in the opinion then delivered; and, upon re-examining the subject, we are quite satisfied as to the correctness of this decision. " 14 Pet. 210, 256. The above cases (New Jersey v. New York, Missouri v. Iowa, Florida v. Georgia, Alabama v. Georgia, Virginia v. West Virginia, Missouri v. Kentucky, Indiana V, Kentucky, and Nebraska v. Iowa) were all original suits in equity in this court, involving the boundary of states. In view of these precedents, it is scarcely necessary' for the court to examine this question anew. Of course, if a suit in e(]uity is appropriate for deteroiining the boundary between two states, there can be no objection to the present suit as being in equity and not at law. It is not a suit simply to determine the legal title to, and the ownership of, the lands con- stituting Greer county. It involves the larger question of governmental author- ity and jurisdiction over that territory. The United States, in effect, asks the siiecilic execution of the terms of the treaty of 1819, to the end that the dis- order and public mischiefs that will ensue from a continuance of the present condi- tion of things may be prevented. The agreement, embodied in the treaty, to fix the lines with precision, and to place landmarks to designate the limits of the two contracting nations, could not well be enforced bj' an action at law. The bill and amended bill make a case for the in- terposition of a court of equity. Demurrer overruled. Mr. Chief Justice FULLER and Mr. Jus- tice LAMAR dissented. 16 FEDERAL JURISDICTION". CUNNINGHAM, Sheriff, v. NEAGLE.i (10 Sup. Ct. 658, 135 U. S. 1.) Supreme Court of the United States. April 14, 1890. G. A. Johnson, Atty. Gen. Cal., S. Shel- labari^er, J. M. Wilson, and Z. Monttxomery, for appellant. W. H. H. Miller, Atty. Gen., Jos. H. Cboate, and Jus. C. Carter, for ap- pellee. MILLER, J. This is an appeal by Ciin- niiijj,nani, sheriff of the county of San Joa- quin, in the state of California, from a jiidj^meut of the circuit court of theUnited States for the northern district of Califor- nia, discharging David Neagle from the custody of said sheriff, who held him a prisoner on a charge of murder. On the 16th day of August, 1880, there was pre- sented to Judge Sawyer, the circuit judge of the United States for the ninth circuit, embracing the northern district of Califor- nia, a petition signed, "David Neagle, Deputy United States Marshal," by A. L. Farish on his behalf. This petition repre- sented that the said Farislj was a deputy- marshal duly appointed for the northern district of California by J.C. Franks, who was the marshal of that district. It fur- ther alleged that David Neaglewas,at the time of the occurrences recited in the peti- tion, and at the time of filing it, a duly-ap- pointed and acting deputy United States maishal for the same district. It then proceeded to state that said Neagle was imprisoned, confined, and restrained of his liberty in the county jail in San Joaquin county, in the state of California, by Thomas Cunningham, sheiMff of said coun- ty', upon a charge of murder, under a war- rant of arrest, a copy of which was an- nexed to the petition. The warrant Avas as follows : "In the justice's court of Stockton town- ship. State of California, county of San Joaquin — ss. : The people of the state of California to any sheriff, constable, mar- shal, or policeman of said state, or of the county of San Joaquin: Information on oath having been this day laid before me by Sarah A. Terry that the crime of mur- der, a felony, has been committed within said county of San Joaquin on the 14th day of August, A. D. 1SS9, in this, that one David S. Terry, a human being then and there being, was willfully, unlawfully, fe- loniously, and with malice aforethought, shot, killed, and murdered, and accusing Stephen J. Field and David Neagle thereof, you ai'e therefore commanded forthwith to arrest the above-named Stephen J. Field and David Neagle, and bring them before me. at my office in the city of Stockton, or, in case of my absence or inability to act, before the nearest and most accessible magistrate in thecounty. Dated at Stock- ton this 14th day of August, A. D. 1889. H. V. J. SwAix, Justice of the Peace. "The defendant, David Neagle, having been brought befoi'e me on this warrant, is committed for examination to the sher- iff of San Joaquin county, California. 1 Dissentiuj omitted. opinion of Mr. Justice Lamar Dated August 15, 1889. H. V. J. Swaix, Justice of the Peace. " The petition then recites the circum- stances of a rencounter between said Neagle and David S. Terry, in which the latter was instantly killed by two shots from a revolver in the hands of the former. The circumstances of this encounter,- and of what led to it, will be considered w^th more particularity hereafter. The main allegation of this petition is that Neagle, as United States deputy-marshal, acting under the orders of Marshal Franks, and in pursuance of instructions from the at- torney general of the United States, had, in consequence of an antici])ated attempt at violence on the part of Terry against the Honorable Stephen J. Field, a justice of the supreme court of the United States, been in attendance upon said justice, and was sitting by his side at a breakfast table when a murderous assault was made by Terry on Judge Field, and in defense of the life of the judge the homicide was com- mitted for which Neagle was held by Cun- ningham. The allegation is very distinct that Justice Fieed was engaged in the dis- charge of his duties as circuit justice of the United States for that circuit, having held court at Los Angeles, one of the places at which the court is by law held, and, hav- ing left that court, was on his vA-ay to San Francisco for the purpose of holding the circuit court at that place. The allegation is also very full that Neagle Avas directed by Marshal Franks to accompany him for the purpose of protecting him, and that these orders of Franks Avere given in an- ticipation of the assault which actually occurred. It is also stated, in more gen eral terms, that Marshal Neagle, in killing Terry under the circumstances, was in the discharge of his duty as an officer of the United States, and Avas not, therefore, guilty of a murder, and that his imprison- ment under the Avarrant held by Sheriff Cunningham is in violation of the laAvs and constitution of the United States, and that he is in custody for an act done in pursuance of the laws of theUnited States. This petition beingsworn toby Farish and I)resented to Judge Saavyer, he made the following order : " Let a AA-rit of liubens cor- pus issue in pursuance of the prayer of the within petition, returnable before the Unit- ed States circuit court for the northern district of California. Saavyek, Circuit Judge. " The writ vA-as accordingly issued and deliA^ered to Cunningham, Avho made the following return : "County of San Joa- quin, State of California. Sheriffs Office. To the honorable circuit court of the United States for the Northern District of California: I hereby certify and return that before the coming to me of the an- nexed writ of habeas corpus the said David Neagle was committed to my custody, and is detained by me by virtue of a warrant issued out of the justice's court of Stock- ton township, state of California, county of San Joaquin, and by the indorsement made upon said warrant. Copy of said Avarrant and indorsement is annexed here- to, and made a part of this return. Never- theless, I have the body of the said David Neagle before thehonorable court, as I am in the said writ commanded. August 17, POWERS AND PROCEDURE OF FEDERAL COURTS. 17 1889. Thos. Cunningham, Sheriff San Joa- quin County, California. " Various plead- ings and amended pleadings were made, which do not tend much to the elucidation of the matter before us. Cunningham filed a demurrer to the petition for the writ of habeas corpus; and Neagle filed a traverse to the return of the sheriff, which was ac- companied by exhibits, the substance of which will be hereafter considered, when the case comes to be examined upon its facts. The hearing in the circuit court was had before Circuit Judge Sawyer and District Judge Sabin. The sheriff, Cunningham, was represented by G. A. Johnson, attor- ney general of the state of California, and othercounsel. A large body of testimony, documentary and otherwise, was submit- ted to the court, on which, after a full con- sideration of the subject, th6 court made the following order: "In the matter of David Neagle. On habeas corpus. In the above-entitled matter, the court, having heard the testimonj' introduced on behalf of the petitioner, none having been offered for the respondent, and also the argu- ments of the counsel for petitioner and re- spondent, and it appearing to the court that the allegations of the petitioner in his amended answer or traverse to the return of the sheriff of San Joaquin county, re- spondent herein, are true, and that the pris- oner is in custody for an act done in pur- suance of a law of the United States, and in custody in violation of the constitution and laws of the United States, it is there- fore ordered that petitioner be, and he is hereby, discharged from custody." From that order an appeal was allowed, which brings thecase to this court, acccompanied by a voluminous record of all the matters which were before the court on the hear- ing. If it be true, as stated in this order of thecourt discharging theprisoner, that he was held "in custody for an act done in pursuance of a law of the United States, and in ciistody in violation of the consti- tution and laws of the United States," there does not seem to be any doubt that, under the statute on that subject, he was properly discharged by the circuit court. Section 753 of the Revised Statutes reads as follows: "The writ of habeas corpus^ shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of theauthority of the United States, or is committed for trial before some court thereof ; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; or is in custody in violation of the constitution, or of a law or treaty of the United States ; or, being a subject or citizen of a foreign state, and domiciled therein, is in custody for an act done or omitted under- any al- leged right, title, authority, privilege, pro- tection, or exemption claimed under the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon 2 Rev. St. U. S. §§ 7.51. 7.52. give power to the supreme court, the circuit and district courts, and the several justices and judges of said courts to issue writs of habeas corijus. SMITH, CONST. LAW— 2 the law of nations; or unless it is necessa- ry to bring the prisoner into court to tes- tify. " And section 761 declares that when, by the writ of habeas corpus, the peti- tioner is brought up for a hearing, the "court or justice or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and ar- guments, and thereupon to dispose of the party as law and justice require. " This, of course, means that if he is held in custody in violation of the constitution or a law of the United States, or for an act done or omitted in pursuance of a law of the United States, he must be discharged. By the law, as it existed at the time of the enactment of the Revised Statutes, an appeal could be taken to the circuit court from any court of justice or judge inferior to the circuit court in a certain class of ha- beas corpus cases. But there was no ap- peal to the supreme court in any case ex- cept where the prisoner was the subject or citizen of a foreign state, and was commit- ted or confined under the authority or law of the United States, or of any state, on account of any act done or omitted to be done under the commission or authority of a foreign state, the validity of which de- pended upon the law of nations. But aft- erwards, by the act of congress of March 3, 1885, (23 St. 437,) this was extended by amendment as follows: "That section seven hundred and sixty-four of the Revised Statutes be amended so that the same shall read as follows: 'From the final de- cision of such circuit court an appeal may be taken to the supreme court in the ca.ses described in the preceding section.' " Tiie preceding section here referred to is section 763 3 and is the one on which the prisoner relies for his discharge from custody in this case. It will be observed that in both the provisions of the Revised Statutes and of this latter act of congress the mode of re- view, whether by the circuit court of the judgment of an inferior court or justice or judge, or by this court of the judgment of a circuit court, the word "appeal," and not "writ of error," is used; and, as con- gress has alv^^ays used these words with a clear understanding of what is meant by them, namely, that by a writ of error on- ly questions of law are brought up for re- view, as in actions at common law, wiiile by an appeal, except when specially pro- vided otherwise, the entire case, on both law and facts, is to be reconsidered, there seems to be little doubt that, so far as it is essential to a proper decision of this case, the appeal requires us to examine into the evidence brought to sustain or defeat the right of the petitioner to his discharge. The history of the incidents which led to the tragic event of the killing of Terry by the prisoner, Neagle, had its origin in a suit brought by William Sharon, of Ne- vada, in the circuit court of the United States for the districtof California, against Sarah Althea Hill, alleged to be a citizen of California, for the purpose of obtaining a decree adjudging a certain instruuient 3 Section (63 provides, among other cases, for the issiiing of writs of habeas corpus by the circuit courts on petition of persons alleged to be restrained of their liberty in violation of the constitution or laws of the United States. J8 FEDERAL JURISDICTION. in writiiifi' possessed and exhibited by her, purporting to be a declai'ation of marriage between tlieni under the Code of California, to be a forgery, and to have it set aside and annulled. This suit, which was com- menced October 3, 1.SS3, was finally heard before Judge Sawyer, the circuit judge for that circuit, and Judge Deady, United States district judge for Oregon, who had been duly appointed to assist in holding the circuit court for the district of Califor- nia. The hearing was on September 29, Issf). and on the 15th of January, ISSG, a deci-ee was rendered granting the prayer of the bill. In that decree it was declared that the instrument purporting to be a declaration of mai'riage, set out and de- scribed in the bill of complaint, "was not signed or executed at any time by William Sharon, the C(jmi)lainant ; that it is not genuine; that it is false, counterfeited, fabricated, forged, and fraudulent, and, as such, is utterly null and void. And it is further ordered and decreed that the re- spondent, Sarah Althea Hill, deliver up and dei)osit Avith ihe clerk of the court said in- strument, to be indorsed ' Canceled,' and that the clerk write across it, 'Canceled,' and sign his name and affix his seal there- to. " The i-endition of this decree was ac- companied by two opinions; the principal one being written by Judge Deady, and a concurring one by Judge Sawyer. They were very full in their statement of the fraud and forgei-y practiced by IMiss Hill, and stated that it was also accompanied by jterjury; and, inasmuch as Mr. Sharon had died l)etween the hearing of the argu- ment of tlie case, on the 29th of September, 1(SS.~), and tlie time of rendering this decis- ion, January 15, ]8S(5, an order was made setting forth that fact, and declaring that the decree was entered as of the date of the hearing, ntiiic jtro tunc. Nothing was done under this decree. The defendant, Sarah Althea Hill, did not deliver up the instrunient to tlie clerk to be canceled, but she continued to insist upon its use in the state court. Under these circumstances, Frederick W.Sharon, as the executor of the will of his father, William Sharon, filed in thecircuit court for the northern district of California, on Marcli 12, 1S.SS, a bill of revivor, stating the circumstances of the decree, the death of his father, and that the decree had not been performed; alleging, also, the inter- marriage of Miss Hill witli David S.Terry, of the city of Stockton, in California, and making the said Terry and wife parties to tliis bill of revivor. The defendants both demurred and answered, resisting the prayer of the i)laintiff, and denying that the petitioner was entitled to any relief. This case was argued in the circuit court before Field, cii-cviit justice. Sawyer, cir- cuit judge, andSABiN, district judge. While the matter was held under advisement. Judge Sawyer, on returning from Los Angeles, in the southern district of Cali- fornia, where he had been holding court, found himself on the train as it left Fres- no, which is nndei-stood to have been the residence of Teji-y and wife, in a car in which he notic(>d that Mr. and Mrs. Terry were in a section behind him, on the same side. On this trip from Fresno to San Francisco, Mrs. Terry grossly insulted Judge Sawyer, and had her husband change seats so as to sit directly in front of the judge, while she passed him with in- solent remarks, and pulled his hair with a vicious jerk, and then, in an excited man- ner, taking her .seat by her husband's side, said: "1 will give him a taste of what he will get by and by. I^et him render this decision if he dares," — the decision being the one already mentioned, then under ad- visement. Terry then made some remark about too many witnesses being in the car, adding that "the best thing to do with him would be to take him out into the bay, and drown him." These incidents were witnessed by two gentlemen who knew all the parties, and whose testimony is found in the record before us. This was August 14,1888. Onthe:jdof September the court rendered its decision granting the prayer of the bill of revivor in the name of Frederick W. Sharon and against Sarah Althea Terry and her husband. Da- vid S. Terry The opinion was delivered by Mr. Justice P'ield, and dui-ing its de- livery a scene of great violence occurred in the court-room. It appears that shortly beforf' the court opened on that day, both the defendants in the case came into the court-ro(un and took seats within the bar at the table next the clerk's desk, and al- most immediately in front of the judges. Besides Mr. Justice Fieed, there were present on the bench Judge Sawyer and Judge Sarin, of the district court of the United States for the district of Nevada. The defendants had denied thejurisdiction of the court originally to render the de- cree sought to be revived, and the opinion of the court necessarily discussed this question, without reaching the merits of the controversy. When allusion was made to this question, Mrs. Terry arose from her seat, and, addressing the justice who was delivering the 0])inion, asked, in an excited manner, whether he was going to order her to give up the niarriagecontract to be canceled. Mr. Justice Field said: "Be seated, madam." She repeated the question, and was again told to be seat- ed. She then said, in a very excited and violent manner, that Justice Field had been bought, and wanted to know the price he had sold himself for; that he had got Newland's money for it, and every- body knew that he had got it, or words to that effect. Mr. Justice Field then di- rected the marshal to remove her from the court-room. She asserted that she would not go from the room, and that no one could take her from it. Marshal Franks proceeded to carry out the order of the court by attempting to compel her to leave, when Terry, her husband, arose from his scat under great excitement, ex- claiming that no man living should touch his wife, and struck the marshal a blow in his face so violent as to knock out a tooth. He then unbuttoned his coat, thrust his hand under his vest, apparently for the purpose of drawing a bowie-knife, when he was seized by persons present, and forced down on his back. In the meantime Mrs. Terry was removed from the court-room by the marshal, and Terry was allowed to rise, and was accom- panied by officers to the door leading to the marshal's office. As he was about POWERS AND PROCEDURE OF FEDERAL COURTS. 19 leaving the room, or immediately after being out of it, he succeeded in drawing a bowie-knife, when his arms were seized by a, deputy-marshal and others present to prevent him from using it; and they were able to wrench it from him only after a severe struggle. The most prominent per- son engaged in wresting the knife from Terry was Neagle, the prisoner now in <;ourt. For this conduct both Terry and his wife were sentenced by the court to imprisonment for contempt, — Mi-s. Terry for one month, and Terry for six months ; and these sentences were immediately car- ried into effect. Both the judgment of the court on the petition for the revival of the decree in the case of Sharon against Hill, and the judgment of the circuit court im- prisoning Terry and wife for contempt, have been brought to this court for re- view; and in both cases the judgments have been affirmed. The report of the cases may be found in Ex parte Terry, 128 U. S. 289, 9 Sup. Ct. Rep. 77, and Terrv v. Sharon, LSI U. S. 40, 9 Sup. Ct. Rep. 705. Terry and Mrs. Terry were sepai-ately in- dicted by the grand jury of the circuit ■court of the United States, during the same term, for their part in these transac- tions; and the cases were pending in said court at the time of Terr3''s death. It also appears that Mrs. Terry, during her part of this altercation in the court room, was making efforts to open a small satchel which she had with her, but through her excitement she failed. This satchel, which was taken from her, was found to have in it a revolving pistol. From that time until his death the de- nunciations by Terry and his wife of Mr. Justice Field were open, frequent, and of the most vindictive and malevolent char- acter. While being transported from San Francisco to Alameda, where they were imx-)risoned, Mrs. Terry repeated a number of times that she would kill both Judge Field and Judge Sawyer. Terry, who was present, said nothing to restrain her, but added that he was not through with Judge Field yet; and, while in jail at Al- ameda, Terry said that after he got out of jail he would horsewhip Judge Field, and that he did not believe he would ever re- turn to California, but this earth was not large enough to keep him from finding- Judge Field and horsewhipping hiin ; and, in reply to a remark that this would be a dangerous thing to do, and that Judge Field would resent it, he said : "If Judge Field resents it, I will kill him." And while in jail Mrs. Terry exhibited to a witness Terry's knife, at which he laughed, and said, " Yes, I always carry that, " and made a remark about judges and marshals, Uiat " they were all a lot of cowardly curs, " and he would "see some of them in their graves yet. " Mrs. Terry a'so said that she expected to kilT Judge Field some day. Perhaps the clearest expression of Terry's feelings and inten- tions in the matter Avas in a conversation with Mr. Thomas T. Williams, editor of one of the daily newspapers of California. This interview was brought about by a message from Terry requesting Williams to call and see him. In speaking of the oc- currences in the court, he said that Justice Field had put a lie in the record about him, and when he met Field he would have to take that back, " and if he did not take it back, and apologize for having lied about him, he would slap his face or pull his nose. " "I said to him, " said the wit- ness, "'Judge Terry, would not that be a dangerous thing to do? Justice Field is not a man who would permit any one to put a deadly insult upon him, like that.' He said, 'Oh, Field won't fight.' I said: 'Well, judge, I have found nearly all men will fight. Nearly every man will fight when there is occasion for it, and Judge Field hag had a character in this state of having the courage of his convictions, and being a brave man.' At the conclusion of that branch of the conversation, I said to him : 'Well, Judge Field is not your phys- ical equal, and if any trouble should oc- cur he would be very likely to use a weap- on.' He said: 'Well, that's as good a thing as I want to get.' The whole im- pression conveyed to me by this conversa- tion w^as that he felt he had some cause of grievance against Judge Field; that he hoped they might meet, that he might have an opportunity to iorceaquaiM'el up- on him, and he would get him into a fight." Mr. Williauis says that after the return of Justice Field to California, in the spring or summer of 1889, he had other conversations with Terry, in which the same vindictive feelings of hatred were manifested and expressed by him. It is useless to go over the testimony on this subject more particularly. It is sufficient to say that the evidence is abundant that both Terry and wife contemplated some attack upon Judge Field during his offi- cial visit to California in the summer of 1889, which they intended should result in his death. Many of these matters were published in the new^spapeI•s, and the press of California was filled with the con- jectures of a probable attack by Terry on Justice Field as soon as it became known that he was going to attend the circuit court in that year. So much impresssed were the friends of Judge Field, and of public justice, both in California and in Washington, with the fear that he would fall a sacrifice to the resentment of Terry and his wife, that ap- plication was made to the attorney gen- eral of the United States suggesting the pi-opriety of his furnisliing some protec- tion to the judge while in California. This resulted in a correspondence between the attorney general of the United States, the district attorney, and the marshal of the northern district of California on that sub- ject. This correspondence is here set out: "Department of Justice, Washington, April 27th, 1889. John C. Franks, United States Marshal, San Francisco, Cal. — Sir: The proceedings which have heretofore been had in connection with the case of Mr. and Mrs. Terry in your United States circuit court have become matter of public notoriety, and I deem it my duty to call your attention to the propriety of exercis- ing unusual caution, in case further pro- ceedings shall be had in that case, for the protection of his honor. Justice Field, or whoever may be called upon to hear and determine the matter. Of course, I do not know what may be the feelings or purpose of Mr. and Mrs. Terry in the premises, but 20 FEDERAL JURISDICTION^. many thirij2:s whicti have happened indi- cate that violence on their part is not im- possible. It is due to the dignity and in- dependence of the court, and the character of its judge, that no effort on the part of the government shall be spared to make them feel entirely safe and free from anxie- ty in the discharge of their high duties. You will understand, of course, that this letter is not for the public, but to put you upon your guard. It will be proper for you to show it to the district attorney if deemed best. Yours, truly, W. H. H. Mil- ler, Attorney General." "United States Marshal's Office, North- ern District of California, San Francisco, May 6, 1889. Hon. W. H. H. Miller, Attor- ney General, VA'ashington, D. C. — Sir: Yours of the 27th ultimo at hand. AVhen the Hon. Judge Lorenzo Sawyer, our cir- cuit judge, returned from Los Angeles, some time before the celebrated court scene, and informed me of the disgraceful action of Mrs. Terry towards him on the cars while her husband sat in front, smil- ingly approving it, I resolved to u'atch the Terrys, (and so notified my deputies,) whenever they should enter the court- room, to be ready to suppress the very first indignity offered by either of them to the judges. After this, at the time of their ejectment from the court-room, when I held Judge Terry and his wife as prisoners in my private office, and heard his threats against Justice Fieed, I was more fully determined than ever to throw around the justice and Judge Sawyer every safeguard I could. I have given the matter careful consideration, with the determination to fully protect the federal judges at this time, trusting that the de- partment will reimburse me for any rea- sonable expenditure. I have always, whenever there is any likelihood of either Judge or Mrs. Terry appearing in court, had a force of deputies with myself on hand to watch their every action. You can rest assured that when Justice Field arrives he, as well as all thefederal judges, will be protected from insults, and where an order is made it will be executed with- out fear as to consequences. I shall fol- low your instructions, and act with more than usual caution. I have already con- sulted with the United States attorney, J. T. Carey, Esq., as to the advisability of making application to you, at the time the Terrys are tried upon criminal charges, for me to select two or more detectives to assist in the case, and also assist me in protecting Justice Field while in my dis- trict. I wish the judges to feel secure, and for this purpose will see to it that their every wish is promptly obeyed. I notice your remarks in regai-d to the publicity of your letter, and will obey your request. I shall only be too happy to receive any suggestions from you at any time. The opinion among the better class of citizens here is very bitter against the Terrys, though, of course, they have their friends, and, unfortunately, among that class it is necessary to watch. Your most obedient servant, J. C. Franks, U. S. Marshal, Northern Dist. of Cal. " "San Francisco, Cal., May 7, 18S9. Hon. W. H. H. Miller, U. S. Attorney General, Washington, D. C. — Dear Sir: Marshal Franks exhibited to meyour letter bearing date the 27th ult., addressed to him upon the subject of using. due caution by way of protecting Justice Field and the federal judges here in the discharge of their duties in matters in which the Terrys are inter- ested. I noted your suggestion with a great degree of pleasure, not because our marshal is at all disposed to leave any- thing undone within his authority or pow- er to do, but because it encouraged him to know and feel that the head of our depart- ment was in full sympathy with theefforts being made to protect the judges, and vin- dicate the dignity of our courts. I write merely to suggest that there is just reason, in tlie light of the past and the threats made by Judge and Mrs. Terry against Justice Field and Judge Sawyer, to ap- prehend personal violence at any moment and at any place, as well in court as out of court, and that, while due caution has always been taken by the marshal when either Judge or Mrs. Terry is about the building in which the courts are held, he has not felt it within his authority to guard either Judge Sawyer or Justice Field against harm when away from the appraisers' building. Discretion dictates, however, that a protection should be thrown about them at other times and places, when proceedings are being had before them in which the Terrys are inter- ested; and I verily believe, in view of the direful threats madeagainstJustice Field, that he will be in great danger at all times while here. Mr. Franks is a prudent, cool, and courageous officer, who ^vill not abuse any authority granted him. I would there- fore suggest that he be authorized, in his discretion, to retain one or more deputies, at such times as he may deem necessary, for the puri)oses suggested. That publicity may not be given to the matter, it is im- portant that the deputies whom he may select be not known as such; and, that efficient service may be assured for the purposes indicated, it seems to me that they should be strangers to the Terrys. The Terrys are unable to appreciate that an officer should perforin his official duty when that duty in any way requires his efforts to be directed against them. The mai'shal, liis deputies, and myself suffer daily indignities and insults from Mrs. Terry, in court and out of court, commit- ted in the presence of her husband, and Avithout interff^-ence upon his part. I do not purpose being deterred from any duty, nor do 1 puri)ose being intimidated in the least degree from doing my whole duty in the premises; but I shall feel doubly as- sured in being able to do so knowing that our marshal has your kind wishes and en- couragement in doing everything needed to protect the officers of the court in the discharge of their duties. This, of course, is not intended for the public files of your office, nor will it be on file in my office. Prudence dictates great caution on the part of the officials who may be called up- on to haveanj'thing to do in the premises, and I deem it to be of the greatest impor- tance that the suggestions back and forth be confidential. I shall write you further upon the subject of these cases in a few POWERS AND PROCEDURE OF FEDERAL COURTS. 21 days. I have the honor to be your moat obedient servant, John T. Carey, U.S. At- torney. " "Department of Justice, Washington, D. C, May 27, 1889. J. C. Franks, Esq., United States Marshal, San Francisco, Cal. — Sir: Referring to former correspondence of the department relating to a possible disor- der in the session of the approaching term of court, owing to the small number of bailiffs under your control to preserve or- der, you are directed to emi^loy certain special deputies at a per diem of five dol- lars, payable out of the appropriation for fees and expenses of marshals, to be sub- mitted to the court, as a separate account from your other accounts against thegov- ernraent, for approval, under section 846, Revised Statutes, as an extraordinary ex- pense, that the same maybe forwarded to this department in order to secure execu- tive action and approval. Very respect- fully, W. H. H. Miller, Attorney Gen- eral." The result of this correspondence was that Marshal Franks appointed Mr. Nea- gle a deputy-marshal for the northern dis- trict of California, and gave him special in- structions to attend upon Judge Field both in court and while going from one court to another, and protect him from any assault that might beattemptedupon him by Terry and wife. Accordingly, when Judge Field went from San Francisco to Los Angeles, to hold the circuit court of the United States at that place, Mr. Neagle ac- companied him, remained with him for the few days that he was engaged in the busi- ness of that court, and returned with him to San Francisco. It appears from the uncontradicted evidence in the case that, while the sleeping-car in which were Jus- tice Field and Mr. Neagle stopped a mo- ment, in the early morning, at Fresno, Terry and wife got on the train. The fact that they were on the train became known to Neagle, and he held a conversation with the conductor as to what peace-officers could be found at Lathrop,where the train stopped for breakfast ; and the conductor was requested to telegraph to the proper officers of that place to have a constable or some peace-officer on the ground when the train should arrive, anticipating that there might be violence attempted by Ter- ry upon Judge Field. It is sufficient to say that this resulted in no available aid to assist in keeping the peace. When the train arrived, Neagle informed Judge Field of the presence of Terry on the train, and advised hira to remain, and take his breakfast in the car. This the judge refused to do, and he and Neagle got out of the car, and went into the dining-room, and took seats beside each other in the place assigned them by the person in charge of the breakfast-room ; and very shoi'tlj' after this Terry and wife came into the room, and Mrs. Terry, recognizing Judge Feld, turned and left in great haste, while Terry passed beyond where Judge Field and Neagle were, and took his seat at an- other table. It was afterwards ascertained that Mrs. Terry went to the car, and took from it a satchel in which was a revolver. Before she returned to the eating-room, Terry arose from his seat, and, passing around the table in such a way as brought him behind Judge Field, who did not see him or notice him, came up where he was sitting with his feet under the table, and struck him a blow on the side of his face, which was repeated on the other side. He also had his arm drawn back and his fist doubled up, apparently to strike a third blow, when Neagle, who had been observ- ing him all this time, arose from his seat with his revolverin his hand, and in a very loud voice sh(juted out: "Stoi)!stop! I am an officer!" Upon this Terry turned his attention to Neagle, and, as Neagle testifies, seemed to recognize him, and im- mediately turned his hand to thrust it in his bosom, as Neagle felt sure, with the purpose of drawing a bowie-knife. At this instant Neagle fired two shots from his re- volver into the body of Terry, who imme- diately sank down, and died in a few min- utes. Mrs. Terry entered the room, with the satchel in her hand, just after Terry sank to the floor. She rushed up to the place where he was, threw herself upon his body, madeloud exclamations and moans, and commenced inviting the spectators to avenge her wrong upon Field and Neagle. She appeared to be carried a^wa^* by pas- sion, and in a very earnest manner charged that Field and Neagle had murdered her husband intentionally ; and shortly after- wards she appealed to the persons present to examine the body of Terry to see that he had no weapons. This she did once or twice. The satchel which she had, being taken from her, was found to contain a revolver. These are the material circum- stances produced in evidence before the cir- cuit court on the hearing of this habeas corpus case. It is but a short sketch of a history which is given in OA'er 500 pages in the record, but we think it is sufficient to enable us to apply the law of the case to the question before us. Without a more minute discussion of this testimony, it pro- duces upon us the conviction of a settled purpose on the part of Terry and his wife, amounting to a conspiracy, to murder Justice Field ; and we are quite sure that if Neagle had been merely a brother or a friend of Judge Field, traveling with him, and aware of all the previous relations of Terry to the judge, — as he was, — of his bitter animosity, his declared purpose to have revenge even to the point of killing him, he would have been justified in what he did in defense of Mr. Justice Field's life, and possibly of his own. But such a justification would be a proper subject for consideration on a \v\a\. of the case for murder in the courts of the state of California ; and there exists no authority in the courts of the United states to di-scharge the prisoner while held in custody by the state authorities for this offense, unless there be found in aid of the defense of the prisoner some ele- ment of power and authority asserted un- der the government of the United States. This element is said to be found in the facts that Mr. Justice Field, when at- tacked, was in the immediate discharge of his duty as judge of the circuit courts of the United States within California; that the assault upon him grew out of the ani- mosity of Terry and wife, arising out of 22 FEDERAL JURISDICTION. the previous discharge of liis duty as cir- cuit justice in the case, for which tliey were committed for contempt of court; and that the deputy-marshal of the Unit- ed States who killed Terry in defense of Field's life, was chai-ged with a duty, un- der the law of the United States, to pro- tect Field from the violence which Terry was inflicting, and wliich was intended to lead to Field's death. To the inquiry whether this proposition is sustained by law and the facts wliich we have recited, we now address ourselves. Mr. Justice Fiicld was a member of the supreme court of the United States, and had been a member of that court for over a (piarter of a century, during which he had become venerable for his age and for hislong and valuable service inthatcourt. The business of the supreme court has be- come so exacting that for many years past the justices of it have been compelled to renuiin for the lari^er part of the year in Washington city, from whatever part of the country they may have been ap- pointed. The term for each year, includ- ing the necessary travel and preparations to attend at its beginning, has generally lasted from eight to nine montlis. But the justices of tliis court have imposed upon them other duties, the most impor- tant of which ai'ise out of the fact that they are also judges of the cii'cuit courts of the United States. Of these circuits there are nine, to each one of which a jus- tice of tlie supreme court is allotted, under section G06 of the Revised Statutes, the provision of which is as follows: "The cliief justice and associate justices of the supreme court shall be allotted among the circuits by an order of the court; and a new allotment shall be made whenever it becomes necessary or convenient, by reason of the alteration of any circuit, or of the new appointment of achief justiceor asso- ciate justice, or otherwise. " Section GIO declares that it "shall be tlie duty of the chief justice and of each justice of the su- preme court to attend at least one term of the circuit court in each district of the cir- cuit to which he is allotted during every period of two years." Although this en- actment does not require, in terms, that the justices siiall go to their circuits more than t)nce in two years, the effect of it is to compel most of them to do this, be- cause there are so many districts in many of the circuits that it is impossible for the circuit justice to reach them all in one year; and the result of this is that hegoes to some of them in one year, and to others in the next year, thus requiring an attendance in the circuit every year. The justices of the supreme court have been members of the circuit courts of the United States ever since the organization of the government; and their attendance on the circuit, and appearance at the places Avhere the courts are held, has always been tiiought to be amatterof importance. In order to enable him to perform this duty, Mr. Justice Fikld had to travel each year from \Vashingt(ui city, near the Atlantic coast, to San Francisco, on the Pacific coast. In doing this, lie was as much in the discharge of a duty imposed upon him by law as he was while sitting in court and try- ing causes. There are many duties which the judge performs outside of the court- room where hesits to pronouncejudgment or to presid'! over a trial. The statutes of the United States, and the established practice of the courts, require that the judge perform a very large share of his ju- dicial labors at what is called "chambers. " This chamber work is as important, as necessary, as much a discharge of his of- ficial duty, as that performed in the court- house. Important cases are often argued before the judge at any place convenient to the parties concerned, and a decision of the judge is arrived at by investigations made in his own room, w^ierever he may be; and it is idle to say that this is not as much the performance of judicial duty as the filing of the judgment with the clerk, and the announcement of the re- sult in open court. So it is impossible for a justice of the supreme court of the United States, who is compelled by the obligations of duty to be so much in Washington city, to discharge his duties of attendance on the circuit courts, as pre- scribed by section (!10, without travaling, in the usual and most convenient modes of doing it, to the place wlicre the court is to be held. Th-^is duty is as much an ob- ligation imposed by the law as if it had said in words: "The justices of the su- preme Court shall go from Washington city to the place where their terms are held every year. " .Justice Field had not only left Washington, and traveled the 3,000 miles or more which was necessary to reach his circuit, but he had entered upon the duties of that circuit, had held tiie court at San Francisco for some time, and, taking a short leave of that court, had gone down to Los Angeles, another place where a court was to be held, and sat as a judge there for several days, hear- ing cases and rendering decisions. It was in the necessary act of returning from Los Angeles to San Francisco, by the usual mode of travel between the two places, where his court was still in session, and where he was required to be, that lie was assaulted by Terry in the manner which we have already described. The occurrence which we are called upon to consider was of so extraordinary a character that it is not to be expected that many cases can be found to cite as author- ity ui)on the subject. In the case of U. S. v. The Little Charles, 1 Brock. 380,* a ques- tion arose bef(jre Chief Justice Marshall, holding the circuit court of the United States for Virginia, as to the A'alidity of an order made by the district judge at his chambers, and not in court. The act of congress authorized stated terms of the district court, and gave the judge power to hold special courts, at his discretion, either at the place appointed by the law, or such other ])!ace in the district as the nature of the business and his discretion should direct. He says: " It does not seem to be a violent construction of such an act to consider the judge as constituting a court whenever he proceeds on judicial business;" and cites the practice of the courts in support of that view of the sub- 4 Fed. Cas. No. 15,613. POWERS AND PROCEDURE OF FEDERAL COURTS. 23 jf^ct. In tbf case of U. S. v. Gieason. 1 Woolw. 128,5 the prisoner was indicted for the murder of two enrolling officers who were charged with the duty of arresting deserters, or those who had been drafted into the service and had failed to attend. These men, it was said, had visited the re- gion of country where they were mur- dered, and, liaving failed of accomplisliing their purpose of arresting the deserters, were on their return to their home wlien they were liilled; and thecourt was asked to instruct the jury that under these cir- cumstances they were not engaged in the duty of arresting tlie deserters named. " It is claimed by the counsel for the defend- ant, " says the report, "that if the parties killed liad been so engaged, and had come to that neigborhood with the purpose of arresting the supposed, deserters, but at the moment of the assault had abandoned the intention of making thea.rrests at tliat time, and were returning to lieadquarters at Grinnell with a view to making other arrangements for arrest at another time, they were not so engaged as to bring the case within the law. " But the court lield that this was not a sound construction of the statute, and "that if the parties les to the peace of the state of California, — are ques- tions too clear to need argument to prove them. That it would be the dvity of a sheriff, if one had been present at this as- sault by Terry upon Judge Field, to pre- vent this breach of the peace, to prevent this assault, to prevent the murder which was contemplated by it, cannot be doubt- ed. And. if, in performing his duty, it be- came necessary, for the protection of Judge Field or of himself, to kill Terry, in a case where, like this, it was evidently a ques- tion of the choice of who should be killed, — the assailant and violator of the law and disturber of the peace, or the unoffending man who was in his power, — there can be no question of the authority of the shei'iff to have killed Terry. So the marshal of the United States, charged with, the duty of protecting and guarding the judse of the United States court against this spe- cial assault upon his person and his life, be- ing present at the critical moment, when prompt action was necessary, found it to be his duty — a duty which he had no liber- ty to refuse to perform-to take the steps which resulted in Terry's death. This duty was imposed on him hy the section of the Revised Statutes which we have recited, in connection with the powers con- ferred by the state of California upon its peace officers, which become, by this stat- ute, in proper cases, transferred as duties to the marshals of the United States. But, all these questions being conceded, it is urged against the relief sought by this writ of habeas corpus that the question of Ihe guilt of the prisoner of the crime of murder is a question to be determined by the laws of (Jalifornia, and to be decided by its courts, and that there' exists no power in the government of the United States to take away the prisoner from the custody of the proper authorities of the state of California, and carry him before a judge of the court of the United States, and release him without a trial by juiy according to the laws of the state of Cal- ifornia. That the statute of the United States authorizes and directs such a pro- ceeding and such a judgment in a case where the offense charged against the pris- oner consists in an act done in pursuance of a law of the United States, and by virtue of its authority, and where the imprison- ment of the party is in violation of the con- stitution and laws of the United States, is clear by its express language. The enact- ments now found in the Revised Statutes of the United States on the subject of the wi'it of habeas corpus are the result of a long course of legislation forced upon con- gress by the attempt of the states of the Union to exercise the power of imprison- ment over officers and other persons assert- ing rights under the federal governn-ent or foreign governments, which the states denied. The original act of congress on the subject of the writ of habeas corpus, by its fourteenth section, authorized the judges and thecourts of the United States, in the case of prisoners in jail or in custody under or by color of the authority of the United States, orcommitted fortrial before some court of the same, or when necessary to be brought into court to testify, to issue the writ, and the judge or court before whom they were brought was directed to makeinqniry in to the cause of commitment. 1 St. 81. This did not pi-esent tjie ques- tion, or at least it gave rise to no ques- tion which came before the courts, as to releasing by this writ parties held in cus- tody under the laws of the states. But when, during the controversy growing out of thenullitication laws of South Carolina, officers of the United States were arrested and imprisoned for the perfoi-mac.ce of their duties in collecting the revenue cf the United States in that state and held by the state authorities, it became necessary for the congress of the United States to take some action for their relief. Accord- ingly the act of congress of March 2, 1S33, (4 St. (i34,) among other i*emedies for such condition of affairs, provided by its seventh section that the federal judges should grant writs of 73a/7ea,s' co77>;i.S' in all cases of a prisoner in jail or confinement, where he should be committed or confined on or by any authority or law for any act done or omitted to be done in pursuance of a law of the United States, or any order, process, or decree of an.y judge or court thereof. The next extension of thecircumstances on which a writ of corpus habeas might issue by the federaljudges arose out of the celebrated McLeod Case, in which Mc- Leod, charged with murder, in a state couj't of New York, had pleaded that he was a British subject, and that what he harl done was under and by the authoi-ity of his government, and should be a matter of international adjustment, and that he was not subject to be tried by a court of New YoT"k under the laws of that state. Thefederal government acknowledged the force of this reasoning, and undertook to obtain from the government of the state of New York the I'elease of the prisoner, but failed. He was, how^ever, tried and acquitted, and afterwards released by the state of New York. This led to an exten- sion of the powers of thefederal judges un- derthewi-it of habeas corpus bv the act of August 2i), 1842, (5 St. 539,) entitled "An 28 FEDERAL JURISDICTION. act to provide further remedial justice in the courts of the United States. " It con- ferred upon them thepower to issue a writ of bahfiis corpus in all cases where the prisoner claimed that the act for wiiich he was held in custody was done under the sanction of any foreign power, and where the validity and effect of this plea depend- ed upon the law of nations. In advocat- in{>- the bill, which afterwards became a hiw on this subject. Senator Berrien, who introduced it ixito the senate, observed : "The object was to allow a foreigner pros- ecuted in one of the states of the Union f(^r an offense committed in that state, but which, he pleads, has been committed un- der authority of his own sovereignty or the authority of the low of nations, to be brought up on that issue before tlie only competent judicial power to decide iipon matters involved in foi-eign relations or the law of nations. The plea must show that it has reference to the laws or trea- ties of the United States or the law of na- tions ; and showing this, the writ of hnbens coi-pns is awarded to try that issue. If it shall appear that the accused lias a bar on the plea alleged, it is right and proper that he should not be delayed in prison, awaiting the proceedings of the state ju- risdiction in the preliminary issue of his ])lea at bar. If satisfied of the existence in fact and validity in law of thebar,the fed- ei'al jurisdiction will have thepower of ad- ministering prompt relief. " No more forc- ible statement of the principle on which tlie law of the case now before us stands can be made. The next extension of the powers of the court under the writ of habeas corpus was the act of February 5, 1N(;7, (14 St. :jS5;) and this contains the broad ground of the present Revised Statutes, under which the relief is scjuglit in the case before us, and includes all cases of restraint of liber- ty in violation of the constitution or a law or treaty of the United States, and de- clares that "the said court or judge shall proceed in a summary way to determine the facts of the case, by hearing festimony and the ai-guments of the parties inter- ested, and, if it shall appear that the peti- tioner is deprived of his or her lib- erty in contravention of the constitution or laws of the United States, he or she shall forthwith be discharged and set at liberty. " It would seem as if the argument might close here. If the duty of the United States to protect its officers from violence, even to death, in discharge of the duties which its laws impose upon them, be es- tablished, and congress has made the writ of linbeas cor]>ns one of the means by which this protection is made efficient, and if the facts of this case show that the prisoner was acting both under the au- thority of law and the directions of his siii)erior officers of the department of jus- tice, we can see no reason why this vvrit should not be made to serve its purpose in the present case. We have already cited such decisions of this court as are most important and directly in point, and tliere is a series of cases decided by the circuit aTid district courts to the same purport. Several of these arose out of proceedings under the fugitive slave law, in which the marshal of the United States, while en- gaged in apprehending the fugitive slave with a view to returning him to his mas- ter in another state, Avas arrested by the authorities of the state. In many of these cases they made application to the judges of the United States for relief by the wi-it of hiibcas corpus, which gave rise to sev- eral very interesting decisions on this sub- ject. In Ex pai'te Jenkins, 2 Wall. Jr. .521, 521), 6 the marshal, who had been engaged, while executing a warrant, in arresting a fugitive, in a bloody encounter, was him- self arrested under a warrant of a justice of the peace for assault with intent to kill, which makes the case very analogous to the one now under consideration. He pre- sented to the circuit court of the United States for the eastern district of Pennsyl- vania a petition for a writ of habeas cor- pus, which was heard before Mr. Justice Grikh, who held that under the act of ISo.'l, already referred to, the marshal was entitled to his discharge, because what he had done was in pursuance of and by the authority conferred upon him by the act of congress concerning the rendition of fugitive slaves. He said : "The authority conferred on the judges of the United States by this act of congress gives them all the power that any other court could exercise under the writ of habeas corpus, or gives them none at all. If, under such a writ, they may not discharge their officer when imprisoned ' by any authority ' for an act done in pursuance of a law of the United States, it would be impossible to discover for what useful purpose the act was passed. * * * It was passed w^hen a certain state of this Union had threat- ened to nullify acts of congress, and to treat those as criminals who should at- tempt to execute them ; and it was intend- ed as a remedy against such state legis- lation. " This same matter was up again when the fugitive slave, Thomas, had the marshal arrested in a civil suit for an al- leged assault and battei-y. He was car- ried before Judge Kane on another writ of habeas corpus, and again released. Id. 581. A third time the marshal, being in- dicted, was arrested on a bench warrant issued by the state court, and again brought before the circuit court of the United States by a writ of habeas corpus, and discharged. Some remarks of Judge Kane on this occasion are very pertinent to the objections raised in the present case. Hesaid (Id. 543:) "It has been urged that my order, if it shall withdraw the relators from the prosecution pending against them, [in the state court,] will, in effect, prevent their trial by jury at all, since there is no act of congress under which they can be indicted for an abuse of process. It will not be an anomaly, how- ever, if the action of this court shall inter- fere with the trial of these prisoners by a jury. Our constitutions secure that mode of trial as a right to the accused; but they nowhere recognize it as aright of the government, either state or federal, still less of an individual prosecutor. The ac- tion of a jury is overruled constantly by 6 Fed. Cas. No. 7,259. POWERS AND PliOCEDURE OF FEDERAL COURTS. 29 the granting of new trials after conviction. It is arrested by tlie entering of nolle pro- aegnis while the case is at bar. It is made ineffectual at any time by the discharge on habeas corpus. * * * And there is no harm in this. No one imagines that because a man is accused he must there- fore, of course, be tried. Public prosecu- tions are not devised for the purpose of indemnifying the wrongs of individuals, still less of retaliating them." Many oth- er decisions by the circuit and district courts to the same purport are to be fou7id, among them the following: Ex parte Robinson, 6 McLean, 355;''' U. S. v. Jailer Fayette Co., 2 Abb.U. S. 265 ;» Ram- sey v. Jailer Warren Co., 2 Flip. 451 ;9 In re Neill, S Blatchf. 156 ;io Ex parte Bridges, 2 Woods, 42S ;ii Ex parte Royall, 117U. S. 24L 6 Sup.Ct. Rep. 734. Similar language was used by Mr. Choate in the senate of the United States upon the passage of the act of 1842. He said : "If you have the power to interpose after judgment, you have the powertodo so before. If youcan reverse a judgment, youcan anticipate its rendition. If, within the constitution, your judicial power extends to these cases or these con- troversies, wiiether you take hold of the case or controversy at one stage or an- other is totally immaterial. The single question submitted to the national tribu- nal, the question whether, under the stat- ute adopting the law of nations, the pris- oner is entitled to the exemption or im- munity he claims, ma.y as well be extract- ed from the entire case, and presented and decided in those tribunals before any judg- ment in the state court, as for it to be re- vised afterwards on a writ of error. Ei- ther way, they pass on no other question. Either way, they do not administer the criminal law of a state. In the one case as much as in the other, and no more, do they interfere with state judicial power. " The same answer is given in the present case. To the objection, made in argument, that the prisoner is discharged by this writ from the po wer of the state court to try him for the whole offense, the replj'^ is that if the prisoner is held in the state court to au- sw^er for an act which he was authorized to do by the law of the United States, which it was his duty to do as marshal of the United States, and if, indoing thatact, he did no more than what was necessary and proper for him to do, he cannot be g-uilty of a crime under the law of the state 7 Fed. Gas. No. 11,935. 8 Fed. Gas. No. 15,463. 9 Fed. Gas. No. 11,547. 10. Fed. Gas. No. 10,089. 11 Fed. Gas. No. 1,862. of California. When these things are shown, it is established that he is innocent of any crime against the laws of the state, or oi any ocner authority'' whatever. There is no occasion for any further trial in the state court, or in any court. The circuit court of the United States was as corai>etent to ascertain these facts as any other tribunal, and it was not at all nec- essary that a jury should be impaneled to render a verdict on them. It is the exer- cise of a ijower common under all systems of criminal jurisprudence. There must al- ways be a preliminary examination by a committing magistrate, or some similar authority, as to whether there is an offense to be submitted to a jury; and, if this is submitted in the first instance to a grand jury, that is still not the right of trial by jury which is insisted on in the present argument. We have thus given, in this case, a most attentiveconsiderationto all thequestions of law and fact which we have thought to be properly involved in it. We have felt it to be our duty to examine into thefacts w'ith a completeness justified by the im- portance of the case, as well as from the duty imposed upon us by the statute, which we think requires of us to place our- selves, as far as possible, in the place of the circuit court, and to examine the tes- timon^' and the arguments in it, and to dispose of the party as law and justice re- quire. The result at which we have ar- rived upon this examination is that, in the protection of the person and the life of Mr. Justice Field whilein the discharge of his official duties, Neagie was authorized to resist the attack of Terry upon him ; that Neagie was correct in the belief that, without prompt action on his part, the assault of Terry upon the judge would have ended in the death of the latter; that, such being his well-founded belief, he was justified in taking the life of Terry, as the only means of jjreventing the death of the man who was intended to be his victim; that in taking the life of Terry, under the circumstances, he was acting under the authority of the law of the Unit- ed States, and was justified in so doing; and that he is not liable to answer in the courts of California on account of his part in that transaction. We therefore affirm the judgment of the circuit court authoiiz- ing his discharge from the custody of the sheriff of San Joaquin county. Field, J., did not sit at the hearing of this case, and took no part in its decision Mr. Chief Justice Fuller and Mr. Jus- tice Lamar dissented. so THE POWERS or CONGRESS. UNITED STATES v. KAGAMA et al. (6 Sup. Ct. 1109, 118 U. S. 373.) Suiu-eme Court of the United States. May 10, 1886. On a certificate of division in opinion be- tween tlie judges of tlie circuit court of the T'nited States for the district of California. Atty. Gen. Garland and Sol. Gen. Goode, for the United States. Jos. D. Redding, for defendants. MILLER, J. The case is brought here bj' certittcate of division of opinion between the circuit judge and the district judge holding the circuit court of the United States for district of California. The ques- tions certified arise on a demurrer to an indictment against two Indians for murder committed on the Indian reservation of Hoopa Valley, in the state of California, the person miudered being also an Indian of said res- ervation. Though there are six cpiestions certified as the subject of difference, the point of them all is well set out in the third and sixth, which are as follows: "(3) Whether the provisions of said section 0, (of the act of congress of March 3, 188.").) making it a crime for one Indian to commit murder up- on another Indian, upon an Indian reserva- tion situated wholly within the limits of a state of the Union, and making such Indian so committing the crime of murder within and upon such Indian reservation 'subject to the same laws,' and subject to be 'tried in the same courts, and in the same manner, and subject to the same penalties, as are all other persons' committing the crime of murder 'within the exclusive jurisdiction of the United States,' is a constitutional and valid law of the United States." "(G) Whether the courts of the United States have jurisdiction or authority to try and punish an Indian belonging to an Indian tribe, for committing the crime of murder upon another Indian belonging to the same Indian tribe, both sustaining the usual trib- al I'elations, said crime having been com- mitted upon an Indian reservation made and set apart for the use of the Indian tribe to which said Indians both belong." The indictment sets out in two counts that Kagama, alias Pactah Billy, an In- dian, murdered lyouse, alias Ike, another Indian, at Humboldt county, in the state of California, within the limits of the Hoopa "S'alley reservation, and it charges Maha- waha. alias Ben, also an Indian, with aid- ing and abetting in the murder. The law referred to in the certificate is the last section of the Indian appropriation act of that year, and is as follows: "See. 9. That immediately upon and after the date of the passfige of this act all In- dians committing against the person or property of another Indian or other person any of the following crimes, namely, mur- der, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny, within any territory of the United States, and ei- ther within or without the Indian reserva- tion, shall be subject therefor to the laws of said territory relating to said crimes, and shall be tried therefor in the same courts, and in the same manner, and shall be sub- ject to the same penalties, as are all other persons charged with the commission of the said crimes respectively; and said courts are hereby given jurisdiction in all such cases; and all such Indians committing any of the above crimes against the person or property of another Indian or other person, within the boundaries of any state of the Unit- ed States, and within the limits of any In- dian reservation, shall be subject to the same laws, tried in the same courts, and in the same manner, and subject to the same penalties, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States." The above enactment is clearly separable into two distinct definitions of the condi- tions under which Indians may be punished for the same crimes as defined by the com- mon law. The first of these is where the offense is committed within the limits of a territorial government, whether on or off an Indian reservation. In this class of cases the Indian charged with the crime shall be judged by the laws of the territory on that subject, and tried by its courts. TTiis proposition itself is new in legislation of congress, which has heretofore only under- taken to punish an Indian who sustains the usual relation to his tribe, and who commits the offense in the Indian country, or on an Indian reservation, in exceptional cases; as where the offense was against the person or property of a white man, or was some viola- tion of the trade and intercourse regulations imposed by congress on the Indian tribes. It is new, bec*ause it now proposes to pun- ish these offenses when they are committed by one Indian on the person or property of another. The second is where the offense is committed by one Indian against the per- son or property of another, Avithin the lim- its of a state of the Union, but on an Indian reservation. In this case, of which the state and its tribunals would have jurisdic- tion if the offense was committed by a white man outside an Indian reservation, the courts of the United States are to exercise jurisdiction as if the oft'ense had been com- mitted at some place within the exclusive jurisdiction of the United States. The first clause subjects all Indians, guilty of these crimes committed Avithin the limits of a ter- ritory, to the laws of that territory, and to its courts for- trial. The second, which ap- plies solely to offenses by Indians which are committed within the limits of a state and the limits of a reservation, subjects the oJfenders to the laws of the United States EXCLUSIVE AND CONCURRENT POWERS. ai passed for the government of places under the exclusive jurisdiction of those laws, and to trial by the courts of the United States. This is a still further advance, as asserting this jurisdiction over the Indians within the limits of the states of the Union. Although the offense charged in this indict- ment was committed within a state, and not within a territory, the considerations which are necessary to a solution of the problem in regard to the one must in a large degree af- fect the other. The constitution of the Unit- ed States is almost silent in regard to the re- lations of the government which Avas estab- lished by it to the numerous tribes of Indians within its borders. In declaring the basis on which representation in the lower branch of the congress and direct taxation should be ap- portioned, it Avas fixed tnat it should be ac- cording to numbers, excluding Indians not taxed, which, of course, excluded nearly all of that race; but which meant that if there were such within a state as were taxed to support the government, they should be count- ed for representation, and in the computation for direct taxes levied by the United States. This expression, "excluding Indians not tax- ed," is found in the fourteenth amendment, where it deals with the same subject under the new conditions produced by the emanci- pation of the slaves. Neither of these shed much light on the power of congress over the Indians in their existence as tribes distinct from the ordinary citizens of a state or teiTi- tory. The mention of Indians in the constitution which has received most attention is that found in the clause which gives congress i "power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." This clause is re- lied on in the argument in the present case, the proposition being that the statute under consideration is a regulation of commerce with the Indian tribes. But we think it would be a very strained construction of this clause that a system of criminal laws for In- dians living peaceably in their reservations, which left out the entire code of trade and in- tercourse laws justly enacted under that pro- vision, and established punishments for the common-law crimes of murder, manslaughtei-, arson, burglary, larceny, and the like, with- out any reference to their relation to any kind of commerce, was authorized by the grant of power to regulate commerce with the Indian tribes. While we are not able to see in either of these clauses of the constitution and its amendments any delegation of power to en- act a code of criminal law for the punishment of the worst class of crimes known to civilized life when committed by Indians, there is a sug- gestion in the manner in which the Indian tribes are introduced into that clause which may have a bearing on the subject before us. The commerce with foreign nations is distinctly stated as submitted to the control of congress. Wei-e the Indian tribes foreign nations? If so, they came within the first of the three classes of commerce mentioned, and did not need to be repeated as Indian tribes. Were they nations, in the minds of the framers of the constitution? If so, the natural phi-ase would have been "foreign nations and Indian nations," or, in the terseness of language uni- formly used by the framers of tbe instrament, it would naturally have been "foreign and Indian nations." And so in the case of Cher- okee Nation v. Georgia, brought in the su- preme court of the United States, under the declaration that the judicial power extends to suits between a state and foreign states, and giving to the supreme court original ju- risdiction where a state is a party,, it was con- ceded that Georgia as a state came within the clause, but held that the Cherokees were not a state or nation, within the meaning of the constitution, so as to be able to maintain the suit. 5 Pet. 20. But these Indians are within the geograph- ical limits of the United States. The soil and the people within these limits are under the political control of the government of the United States, or of the states of the Union. There exists within the broad domain of sov- ereignty but these two. There may be cities, counties, and other organized bodies, with limited legislative functions, but they are all derived from, or exist in, subordination to one or the other of these. The territorial govern- ments owe all their powers to the statutes of the United States conferring on them the powers which tliej^ exercise, and which are liable to be withdrawn, modified, or repealed at any time by congress. What authority the state governments may have to enact crim- inal laws for the Indians will be presently considered. But this power of congress to organize territorial governments, and make laws for their inhabitants, arises, not so much from the clause in the constitution in regard to disposing of and making rules and regula- tions concerning the territory and other prop- erty of the United States, as from the own- ership of the country in Avhich the territories are, and the right of exclusive sovereignty which must exist in the national government, and can be found noAvhere else. Murphy v. Ramsey, 114 U. S. 15, 44, 5 Sup. Ct. 747. In the case of American Ins. Co. v. Canter, 1 Pet. 542, in which the condition of the peo- ple of Elorida, then under a territorial govern- ment, Avas under consideration, Marshall, C. J., said: "Perhaps the poAver of governing a territoi-y belonging to the United States Avhich has not, by becoming a state, acquired the means of self-gOA'ernment, may result neces- sarily from the fact that it is not within the jurisdiction of any particular state, and is Avithin the poAver and jurisdiction of the United States. The right to goA'ern may be the inevitable consequence of the right to ac- quire territory. WhicheA'er may be the source whence the poAA-er is derived, the possession of it is unquestionable." In the case of U. S. v. Rogers, 4 Hoav. 572, 82 THE POWERS OF CONGRESS. where a white man pleaded in abatement to an indictment for murder, committed in the country of the Cherokee Indians, that he had been adopted by and become a member of the Cherokee tribe, Chief Justice Taney said: "The country in which the crime is charged to have been committed is a part of the territory of the United States, and not witliin the limits of any particular state. It is true it is occupied by the Cherokee Indians, but it has been assigned to them by the United States as a place of domicile for the tribe, and they hold with the assent of the United States, and under their author- ity." After referring to the policy of the European nations and the United States in asserting dominion over all the countiy dis- covered by them, and the justice of this course, he adds: "But had it been other- wise, and were the right and propriety of exercising this power now open to ques-tion, yet it is a question for the law-making and political departments of the government, and not for the judicial. It is our duty to ex- pound and execute the law as we find it, and we think it too firmly and clearly estab- lished to admit of dispute, that the Indian tribes, residing within the territorial limits of the United States, are subject to their authority, and when the country occupied by one of them is not within the limits of one of the states, congress may by law pun- ish any offense committed there, no matter whether the offender be a white man or an Indian." The Indian reservation in the case before us is land bought by the United States from Mexico by the treaty of Guadaloupe Hidal- go, and the whole of California, with the allegiance of its inhabitants, many of whom were Indians, was transferred by that ti'eaty to the United States. The relation of the Indian tribes living Avithin the borders of the United States, both before and since the Revolution, to the people of the United States, has always been an anomalous one, and of a complex character. Following the policy of the European governments in the discovery of America, towards the Indians who were found here, the colonies before the Revolution, and the states and the United States since, have recognized in the Indians a possessory right to the soil over which they roamed and hunted and established oc- casional villages. But they asserted an ulti- mate title in the land itself, by which the Indian tribes were forbidden to sell or trans- fer it to other nations or peoples without the consent of this paramount authority. When a tribe wished to dispose of its land, or any part of it, or the state or the United States wished to purchase it, a treaty with the tribe was the only mode in which this could be done. The United States recognized no right in private persons, or in other nations, to make such a purchase by treaty or other- wise. With the Indians themselves these re- lations are equally difficult to define. They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as states, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulat- ing their internal and social relations, and thus far not brought under the laws of the Union or of the state within whose limits they resided. Perhaps the best statement of their posi- tion is found in the two opinions of this court by Chief Justice Marshall in the case of Cherokee Nation v. Georgia, 5 Pet. 1, and in the case of Worcester v. Georgia, 6 Pet. 530. These opinions are exhaustive; and in the separate opinion of Mr. .lustice Bald- win, in the former, is a very valuable re- sume of the treaties and statutes concerning the Indian tribes previous to and during the confederation. In the first of the above cases it was held that these tribes were nei- ther states nor nations, had only some of the attributes of sovereignty, and could not be so far x-ecognized in that capacity as to sustain a suit in the supreme court of the United States. In the second case it was said that they were not subject to the juris- diction asserted over them by the state of Georgia, which, because they were within its limits, where they had been for ages, had attempted to extend her laws and the juris- diction of her courts over them. In the opinions in these cases they are spoken of as "Avards of the nation;" "pupils;" as local de- pendent communities. In this spirit the United States has conducted its relations to them from its organization to this time. But, after an experience of a hundred years of the treaty-making system of government, congress has determined upon a new depar- ture, — to govern them by acts of congress. This is seen in the act of March 3. 1871, em- bodied in section 2079 of the Revised Statutes: "No Indian nation or tribe, within the teiTi- toiy of the United States, shall be acknowledg- ed or recognized as an independent nation, tribe, or power, with whom the United States may contract by treaty; but no obligation of any treaty lawfully made, and ratified with any such Indian nation or tribe prior to March 3, 1871, shall be hereby invalidated or impaired." The Case of Crow Dog. 109 U. S. 5.5fi, 3 Sup. Ct. 396, in which an agreement with the Sioux Indians, ratified by an act of congress. was supposed to extend over them the laws of the ITnited States and the jurisdiction of its conrts. covering murder and other grave crimes, shows the purpose of congress in this new departure. The decision in that case admits that if the intention of con- gress had been to punish, by the United States courts, the murder of one Indian by another, the law would have been valid. But the court could not see, in the agreement with the Indians sanctioned by congress, a purpose to repeal section 2146 of the Re- EXCLUSIVE AND CONCUKRENT POWEllS. m vised Statutes, which expressly excludes from that jurisdiction the case of a crime committed by one Indian against another in the Indian country. The passage of the act now under consideration was designed to re- move that objection, and to go furtlier bj' in- cluding such crimes on reservations lying within a state. Is this latter fact a fatal ob- jection to the law? The statute itself con- tains no express limitation upon the powers of a state, or the jurisdiction of its courts. If there be any limitation in either if these, it grows out of the implication arising from the fact that congress has defined a crime committed within the state, and made it pun- ishable in the courts of the United States. But congress has done this, and can do it, Avith regard to all offenses relating to mat- ters to which the federal authority extends. Does that authority extend to this caseV It will be seen at once that the nature of the offense (murder) is one which in most all cases of its commission is pimishable by the laws of the states, and within the juris- diction of their courts. The distinction is claimed to be that the offense under the stat- ute is committed by an Indian, that it is committed on a. reservation set apart within the state for residence of the tribe of In- dians by the United States, and the fair in- ference is that the offending Indian shall be- long to that or some other tribe. It does not interfere with the process of the state courts within the reservation, nor Math the opera- tion of state laws upon Avhite people found there. Its effect is confined to the acts of an Indian of some tribe, of a criminal char- acter, committed within the limits of the reservation. It seems to us that this is within the competency of congress. These Indian tribes are the wards of the nation. They are communities dependent on the United States,— dependent largely for their daily food; dependent for their political rights. They owe no allegiance to the states, and receive from them no protection. Be- cause of the local ill feeling, the people of the states where they are found are often their deadliest enemies. From their very weakness and helplessness.- so largely due to the course of dealing of the federal govern- SMITH.CONST. LAW — 3 ment with them, and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the executive, and by congress, and by this court, when- ever the question has arisen. In the case of Worcester v. Georgia, 6 Pet. 515, it was held that, though the Indians had by treaty sold their land within that state, and agreed to remove away, which they had failed to do, the state could not, while they remained on those lands, extend its laws, criminal and civil, over the tribes; that the duty and power to compel their removal was in the United States, and the tribe was un- der their protection, and could not be sub- jected to the laws of the state, and the pro- cess of its courts. The same thing was decided in the case of Fellows V. Blacksmith, 19 How. 3«6. In this case, also, the Indians had sold their lands under supervision of the states of Massa- chusetts and of New York, and had agreed to remove within a given time. When the time came a suit to recover some of the land was brought in the supreme court of New York, which gave judgment for the plaintiff. But this court held, on wi'it of error, that the state could not enforce this removal, but the duty and the power to do so was in the United States. See, also, the cases of Kan- sas Indians, 5 Wall. 737; New Y''ork Indians, Id. 761. The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is neces- sary to their pi'otection. as well as tQ the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else; because the theater of its exercise is within the geo- graphical limits of the United States; be- cause it has never been denied; and because it alone can enforce its laws on all the tribes. We answer the questions propounded to us: that the ninth section of the act of March 23, 1885, is a valid law in both its branches, and that the circuit court of the United States for the district of California has jurisdiction of the offense charged in the indictment in this case. 34 THE POWERS OF CONGRESS. WILLAMETTE IRON BRIDGE CO. v, HATCH et al. (8 Sup. Ct. 811, 125 U. S. 1.) Supreme Court of the Uuited States. March 19, 1888. Appeal from the circuit court of tlie Unit- ed States for tlie district of Oregon. Iiufus Mallory and Jolni Mullan. for ap- pellants. J. N. Dolph, for appellees. BRADLEY, J. This is a bill of review filed by the appellants, a corporation of Ore- gon, to obtain the reversal of a decree made by the court below against them in favor of Hatch and Lownsdale, the appellees. The case is, shortly, this: On the 18th of Oc- tober, 1878, the legislature of Oregon passed an act entitled "An act to authorize the construction of a bridge on the Willamette river, between the city of Portland and the citj- of East Portland, in Multnomah county, state of Oregon;" by which it was enacted as follows, to-wit: "Be it enacted," etc., "that it shall be lawful for the Portland Bridge Company, a corporation duly incor- porated under and in conformity with the laws of the state of Oregon, or its assigns, and that said corporation or its assigns be and are hereby authorized and empowered to construct, build, maintain, use, or cause to be constructed, built, and maintained or used, a bridge across the Willamette river, between I'ortland and East Portland, in Multnomah county, state of Oregon, for any and all purposes of travel or commerce; said bridge to be erected at any time within six years after the passage and approval of this act. at such point or location on the banks of said river, on and along any of the streets of either of said cities of Portland and East Portland as may be selected or de- termined on by said corporation or its as- signs, on or above Morrison street of said city of Portland and M street of said city of East I'ortland; the same to be deemed a lawful structure: provided, that there shall be placed and maintained in said l»ridge a good and suthcient draw of not less than one hundred feet in the clear in width of a pas- sage-way, and so constructed and main- tained as not to injuriously impede and ob- struct the free navigation of said river, but so as to allow the easy and reasonable pas- sage of vessels through said bridge: and provided, that the approaches on the Port- land side to said bridge shall conform to the present grade of Front street in said city of Portland." In the month of July. 1880. the appellants, the Willamette Iron Bridge Com- pany, claiming to be assignees of the Port- land Bridge Company, and to act under and by authoiity of said law, began the construc- tion of a bridge across the Willamette river, from the foot of :Morrison street, in the city of Portland, and proceeded in the work so far as to erect piers on the bed of the river, with a draw-pier in the channel, on which a pivot-draw was to be placed, with a clear passage-way on each side, when open, of 100 feet in width,— or, as the appellants al- lege, lO.j feet in width. On the 3d of Janu- ary, 1881. while the appellants were thus en- gaged in erecting the bridge. Hatch and Lownsdale filed a bill in the circuit court of the United States for an injunction to re- strain the appellants from further proceed- ing with the work, and to compel them to abate and remove the structures already placed in the river. This bill described the complainants therein as citizens of the Unit- ed States, residing at Portland, in the state of (Jregon, and the defendants as a eoiiiora- tion org-anized under the laws of that state, having its otfice and principal place of busi- ness at Portland, and alleged that the Wil- lamette river is a known public river of the United States, situate within the state of Oregon, navigated by licensed and enrolled and registered sea-going vessels engaged in commerce with foreign nations and with other states, upon the ocean, and by way of the Columbia river,— also a known public and navigable river of the United States,— from its confiuence with the Columbia river to the docks and wharves of the port of Port- land, and that- up to and beyond the wharves and warehouses of the complain- ants. Hatch and Lownsdale, it is within the ebb and flow of the ocean tides. That, by the act of congress of February 14, 1859, ad- mitting the state of Oregon into the Union, it is declared "that all the navigable waters of said state shall be common highways, and forever free, as well to the inhabitants of said state as to all other citizens of the United States, without any tax, duty, im- post, or toll therefor." 11 St. 8S3. That congress has established a port of entry at the city of Portland, on the Willamette river, and has required vessels which navi- gate it to be enrolled and licensed, etc., and has frequently directed the improvement of the navigation of the said river, and appro- priated money for that purpose; and by an act approved February 2, 1870, giving con- sent to the erection of another bridge across said river from Portland to East Portland, asserted the powers of the Unitetl States to regulate commerce upon said river, and to prevent obstruction to the navigation of the same, and in said act declared: "But until the secretary of war approves the plan and location of said bridge, and notifies the said corporation, association, or company of the same, the bridge shall not be built or com- menced." The complainants further stated that Lownsdale was the owner and Hatch the lessee of a certain wharf and warehouses in Portland, situated about 750 feet above the proposed bridge, heretofore accessible to and used by sea-going vessels and others; and that Hatch is the owner of a steam tow-boat, used for towing vessels up and down the river to and from the said wharves and ware- houses and others in the city; that vessels ENUMERATED POWERS OF CONGRESS. of 2,000 tons liave been in the habit of navi- ijatiug the river for a mile above the site of the proix)sed bridge; and that the said river ought to remain free and unobstructed. But they charge that tlie bridge and piers will be a serious obstruction to this commerce; that the passage-ways will not be sufficient for sea-going vessels, with their tugs; that the bridge is being constructed diagonally, and not at right angles, to the current of the river; that it will arrest and pile up the float- ing ice and timber in high stages of water in such a way as to obstruct the passage of ves- sels; and in various other particulars stated in the bill it is charged that the bridge will be a serious obstruction to the navigation of the river. The complainants contended that the act of the legislature authorizing the bridge contravenes the laws of the United States declaring the river free, and was not passed with the consent of congress, and was n wrongful assumption of power on the part of the state; and alleged that the pretended assignment by the Portland Bridge Company to the defendants, the Willamette Iron Bridge Company, was not in good faith and was not authorized by the directors of the former; and stated various other matters of alleged irregularity and illegality on the part of the Portland Company and the defendants. They also stated that the bridge was not be- ing constructed in conformity with the re- quirements of the state law; that, by reason of its diagonal position across the river, the thread of the current formed an acute angle with the line of the bridge, and that the draAvs do not afford more than 87 feet of a passage-way for the passage of vessels; and that vessels will be unable to pass through said bridge for at least four months of the busiest shipping season of the year. The de- fendants in that case, the W^illamette Iron Bridge Company, filed an answer in which they admitted that they were building the bridge, and claimed to do so as assignees in good faith of the Portland Briflge Company, under and by virtue of the act of the legisla- ture before mentioned, but denied the allega- tions of the bill with regard to the injurious effects of the bridge upon the navigation of the river, and averred that they were com- plying in every i-espect with the state law. The cause being put at issue, and proofs be- ing taken, on the 22d of October, 1881, a de- cree was made in favor of the complainants foi- a pei-petual injunction against the build- ing of the bridge, and for an abatement of the portion already built. Tbe decision of the case was placed principally on the* ground that the bridge would be, and that the piers were, an obstruction to the navigation of the river, contrary to the act of congress passed in IS-^O, admitting Oregon into the Union, and declaring "that all the navigable waters of the said state shall be common highways, and for- ever free, as well to the inhabitants of said state as to all other citizens of the United States, without any tax, duty, impost, or toll therefor;" and that, without the consent of congress, a state law was not sufficient au- thority for the erection of such a structure; and, even if it was, the bridge did not con- form to the requirements of the state law. See Hatch v. Bridge Co., 7 Sawy. 127, 141, 6 Fed. 326, 780. i The defendants took an ap- peal, which was not prosecuted; but after the decision of this court in the case of Esca- naba Co. v. Chicago, 107 U. S. 678, 2 Sup. Ct. 18.5, they filed the present bill of review for the reversal of the decree. The reasons assigned for a reversal are, among others, that the court erred in holding and decreeing as follows, to-wit: (1) That the bridge, where and as being constructed, was a serious ob- struction to the navigation of the Willamette river, contrary to the act of congress of Feb- ruary 14, 1859, admitting the state of Oregon into the Union, which declares that all the navigable waters of the state shall be com- mon highways, and forever free to all citi- zens of the United States; (2) that the said court, under section 1 of the act of March 3, 1875, giving it jurisdiction of a suit arising under an act of congress, has authority to re- strain i^arties from violating said act by ob- structing the navigation of any of said wa- ters, at the suit of any one injured thereby; (3) that the proposed bridge is and will be a nuisance and serious impediment to the navi- gation of said river; (4) that the legislature of the state of Oregon has not the power to say absolutely that a bridge may be built with only a draw of 100 feet; (5) that the Willamette I'"on Bridge Company, as the as- signee of the Portland Bridge Company, was not authorized by the act of the legislative assembl3^ of Oregon to construct the said bridge, because it would be a violation of the said act of congress of February 14, 1859, admitting the state of Oregon into the Union, and was and is, therefore, void; (6) that the defendant should be perpetually enjoined from constructing or proceeding with the con- struction of the said bridge; and (7) that the defendant should be required to abate and re- move out of said river all piers, foundations, etc., which it has placed or constructed there- in. This bill was demurred to, and the court affirmed the decree in the original suit and dismissed the bill of review. Bridge Co. v. Hatch, 9 Sawy. 643, 19 Fed. 347. The present appeal is taken fi'om this decree. On a pure bill of review, like the one in this case, nothing will avail for a reversal of the decree but errors of law apparent on the rec- ord. Whiting V. Bank, 13 Pet. 6; Putnam v. Day, 22 Wall. 60; Buffington v. Harvey, 95 U. S. 99; Thompson v. Maxwell, Id. 397; Beard v. Burts, Id. 434; Shelton v. Van Kleeck, 106 U. S. 532, 1 Sup. Ct. 491; Nickle v. Stewart, 111 U. S. 776, 4 Sup Ct. 700. Does any such error appear in the pres- ent case? The court below has decided in the negative. We are called upon to deter- 1 See, also, 27 Fed. 673. 36 THE POWERS OF CONGRESS. mine whether that decision was correct. It must be assumed that the questions of fact at issue between the parties were decided cor- rectly by the court upon its view of tlie law applicable to the case. But the important question is, was its view of the law correct? The parties in the cause, both plaintiffs and defendants, were citizens of the state of Ore- gon. The court, therefore, must necessarily have held, — as we know from its opinion that it did hold,— that the case was one arising un- der the constitution or laws of the United States. The gravamen of the bill was the ob- struction of the navigation of the Willamette river by the defendants, by the erection of the bridge which they were engaged in building. The defendants pleaded the authority of the state legislature for the erection of the bridge. The court held that the work was not done in conformity with the requirements of the state law; but whether it were or not, it lacked the assent of congress, which assent the cornl held was necessary in view of that provision in the act of congress admitting Or- egon as a state, which has been referred to. The court held that this provision of the act was tantamount to a declaration that the nav- igation of the Willamette river should not be obstructed or interfered with, and that any such obstruction or interference, without the consent of congress, whether by state sanc- tion or not, was a violation of the act of con- gress; and that the obstruction complained of was in violation of said act; and this is the principal and important question in this case, namely, whether the erection of a bridge over the Willamette river at Portland was a viola- tion of said act of congress. If it was not, if it could not be, if the act did not apply to ob- structions of this kind, then the case did not arise under the constitution or laws of the United States, unless under some other law referred to in the bill. The power of congress to pass laws for the regulation of the navigation of public rivers, and to prevent any and all obstructions thei*e- in, is not questioned. But until it does pass some such law, there is no common law of the United States which prohibits obstruc- tions and nuisances in navigable rivers, un- less it be the maritime law, administered by the courts of admiralty and maritime jurisdic- tion. No precedent, however, exists for the enforcement of any such law; and if such law could be enforced, (i point which we do not undertake to decide,) it would not avail to sustain the bill in equity filed in the orig- inal case. There must be a direct statute of the United States in order to bring within the scox)e of its laws, as administered by the courts of law and equity, obstructions and nuisances in navigable streams within the states. Such obstructions and nuisances are offenses against the laws of the states within which the navigable waters lie, and may be indicted or prohibited as such; but they are not offenses against United States laws which do not exist; and none such exist except what are to be found on the statute book. Of course, where the litigant parties are citizens of different states, the circuit courts of the United States may take jurisdiction on that ground, but on no other. This is the result of so many cases, and expressions of opinion by this court, that it is almost superfluous to cite authorities on the subject. We refer to the following by way of illustration: Willson V. Creek Co., 2 Pet. 245; Pollard's Lessee v. Hagan, 3 How. 229; Passaic Bridge Cases, S Wall. 7S2; Oilman v. Philadelphia, Id. 724; Pound V. Turck. 95 U. S. 459; Escanaba Co. V. Chicago, 107 U. S. 678, 2 Sup. Ct. 185; Cardwell v. Bridge Co., 113 U. S. 205, 5 Sup. Ct. 423; Hamilton v. Railroad, 119 U. S. 280, 7 Sup. Ct. 206; Huse v. Glover, 119 U. S. 543, 7 Sup. Ct. 313; Sands v. Improvement Co., 123 U. S. 288, 8 Sup. Ct. 113; Transportation Co. V. Parkersburg, 107 U. S. 691, 700, 2 Sup. Ct. 732. The usual case, of course, is that in which the acts complained of are clearly sup- ported by a state statute; but that really makes no dift"ereuce. Whether they are con- formable, or not conformable, to the state law relied on, is a state question, not a federal one. The failure of state functionaries to prosecute for breaches of the state law does not confer power upon United States func- tionaries to prosecute under a United States law, when there is no such law in existence. But, as we have stated, the court below held that the act of congress of 1859 was a law Avhich prohibited any obstructions or im- pediments to the navigation of the public riv- ers of Oregon, including that of the Willa- mette river. Was it such an act V Did it have such effect? The clause in question had its origin in the fourth article of the compact contained in the ordinance of the old congress for the government of the teiTitory north- west of the Ohio, adopted July 13, 1787; in which it was, among other things, declared that "the navigable waters leading into the Mississippi a^id St. Lawrence, and the can-y- ing places between the same, shall be com- mon highways and forever free, as well to the inhabitants of said territoi-y, as to the cit- izens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost, or duty therefor." 1 St. 52. This court has held that when anj' new state was admitted into the Union from the Northwest TeiTitory, the ordi- nance in question ceased to have any opera- tive force in limiting its powers of legisla- tion as compared with those possessed by the original states. On the admission of any such new state, it at once became entitled to and possessed all the rights of dominion and sovereignty which belonged to them. See the cases of Pollard's Lessee v. Hagan, supra; Permoli v. First Municipality, 3 How. 589; Escanaba Co. v. Chicago; Cardwell v. Bridge Co.; Huse v. Glover,— qua supra. In admit- ting some of the new states, however, the clause in question has been inserted in the law, as it was in the case of Oregon, whether ENUMERATED POWERS OF CONGRESS. 37 the state was carved out of the ten-itory northwest of the Ohio, or not; and it has been supposed that in this new fomi of enactment it might be regarded as a regulation of com- merce, Avhicli congress has the right to im- pose. Pollard's Lessee v. Hagan, 3 How. 212, 230. Conceding this to be the correct view, the question then arises, what is its fair con- struction? What regulation of commerce does it affect? Does it prohibit physical ob- structions and impediments to the navigation of the streams? Or does it prohibit only the imposition of duties for the use of the navi- gation, and any discrimination denying to citizens of other states the equal right to such use? This question has been before this court, and has been decided in favor of the latter construction. It is obvious that if the clause in question does prohibit physical obstructions and im- pediments in navigable waters, the state leg- islature itself, in a state where the clause is in force, would not have the power to cause or authorize such obstructions to be made without the consent of congress. But it is well settled that the legislatures of such states do have the same power to authorize the erection of bridges, dams, etc., in and upon the navigable waters wholly within their limits, as have the original states, in reference to which no such clause exists. It was so held in Pound v. Turck, 95 U. S. 459, in reference to a dam in the Chippewa river, in Wisconsin; in Cardwell v. Bridge Co., 113 U. S. 205, 5 Sup. Ct. 423; in reference to a bridge without a draw, erected on the Amer- ican river, in California, which prevented steam-boats from going above it; and in Hamilton v. Railroad Co., 119 U. S. 280, 7 Sup. Ct. 206, relating to railroad bridges in Louisiana, — in all which cases the clause in question was in force in the states where they arose, and in none of them was said clause held to restrain in any degree the full power of the state to , make, or cause to be made, the erections referred to, Avhich must have been more or less obstructions and im- pediments to the navigation of the streams on which they were placed. In Cardwell v. Bridge Co., the two alternate constructions of the clause above suggested were brought to the attention of the court, and, on consid- eration, it was held as follows: "Upon ma- ture and careful consideration which we liave given in this case to the language of the clause in the act admitting California, we are of opinion that, if we treat the clause as divisible into two provisions, they must 'be construed together as having but^one ob- ject, namely, to insxu-e a highway equally open to all without preference to any, and unobstructed by duties or tolls, and thus prevent the use of the navigable streams "by private parties to the exclusion of the public, and the exaction of any toll for their navigation; and that the clause contemplat- ed no other restriction upon the power of the state in authorizing the construction of bridges over them, whenever such construc- tion would promote the convenience of the public." In Hamilton Railroad Co. it was said: "Until congress intervenes in such cases, and exercises its authority, the power of the state is plenary. When the state pro- vides for the form and character of the structure, its directions will control, except as against the action of congress, whether the bridge he with or without draws, and irrespective of its effect upon navigation;" and in the same case the construction given to the clause in question in Cardwell v. Bridge Co. was reiterated, namely, that it was intended to prevent any discrimination against citizens of other states in the use of navigable streams, and any tax or toll for their use. In Huse v. Glover, 119 U. S. 543, 7 Sup. Ct. 313, where a portion of the Illinois river had been improved by the state of Illinois, by the erection of locks in the rivei", and a toll was charged for passing through the same, it was held that this was no encroachment upon the power of con- gress to regulate commerce, and that, while the ordinance of 1787 was no longer in force in Illinois, yet, if it were, the construction given to the clause in the Cardwell Case was approved, and the following observa- tion was made: "As thus construed the clause would prevent any exclusive wse of the navigable waters of the state,— a possi- ble farming out of the privilege of navigat- ing them to particular individuals, classes, or corporations, or by vessels of a particu- lar character." It was also held that the exaction of tolls for passage through the locks, as a compensation for the use of the artificial facilities constructed, was not an impost upon the navigation of the stream. The same views are held in the recent case of Sands v. Improvement Co., 123 U. S. 288, 8 Sup. Ct. 113. It seems clear, therefore, that according to the construction given by this court to the clause in the act of congress relied upon by the court below, it does not refer to physical obstructions, but to political regulations which would hamper the freedom of com- merce. It is to be remembered that in its original form the clause embraced carrying places between the rivers as well as the rivers themselves; and it cannot be sup- posed that those carrying places were in- tended to be always kept up as such. No doubt that at the present time Some of them are covered by populous towns, or oc- cupied in some other way incompatible with their original use; and such a diversion of their use, in the progress of society, cannot but have been contemplated. What the peo- ple of the old states wished to secure was the free use of the streams and carrying places in the Northwest Territory, as fully as it might be enjoyed by the inhabitants of that territory themselves, without any im- post or discriminating burden. The clause in question cannot be regarded as establish- 38 THE POWERS OF COXGIIESS. iug the police power of the United States over the rivers of Oregon, or as giving to the federal courts the right to hear and de- termine, according to federal law, every complaint that may be made of an impedi- ment in, or an encroachment upon, the navi- gation of those rivers. We do not doubt that congress, if it saw fit, could thus as- sume the care of said streams, in the intei'- est of foreign and interstate commerce; we only say that, in our opinion, it has not done so by the clause in question. And al- though, until congress acts, the states have the plenary power supposed, yet. when con- gress chooses to act, it is not concluded by anything that the states, or that individuals, by its authority or acquiescence, have done, from assuming entire control of the matter, and abating any erections that may have been made, and preventing any others from being made, except in conformity with such I'egulations as it may impose. It is for this reason, namely, the ultimate (though yet un- exerted) power of congress over the whole subject-matter, that the consent of congress is so frequently asked to the erection of bridges over navigable streams. It might itself give original authority for the erection of such bridges when called for by the de- mauds of interstate commerce by land; but in many, perhaps the majority, of cases, its assent only is asked, and the primai-y au- thority is sought at the hands of the state. With regard to this very river, the Willa- mette, three acts of congress have been pass- ed in relation to the construction of bridges thert'on. to-wit, one approved February 2, 1870, which gave consent to the corporation of the city of Tortland to erect a bridge from Portland to the east baiik of the river, not obstructing, impairing, or injuriously modifying its navigation, and first submit- ting the plans to the secretary of war; an- other, approved on the 22d of June, 1874, which authorized the county commissioners of jNIarion county, or said commissioners jointly with those of Polk county, to build a bridge across said river at Salem; a third act. approved June 2.3, 1874, which author- ized the Oregon iS: California Railroad Com- pany, alone, or jointly with the Oregon Cen- tral Railroad Company, to build a railroad bridge across said river at the city of Port- land, with a draw of not less than 100 feet in the clear on each side of the draw abut- ment, and so constructed as not to impede the navigation of the river, and allow the free passage of vessels through the bridge. These acts are special in their character, and do not involve the assumption by con- gress of general police power over the river. The argument of the appellees, that con- gress must be deemed to have assumed po- lice power over the Willamette river in con- sequence of having expended money in im- proving its navigation, and of having made Portland a port of entry, is not well found- ed. Such acts are not sufficient to establish the police power of the United States over the navigable sti-eams to which they relate. Of course, any interference with the opera- tions, constructions, or improvements made by the general goveniment, or any violation of a port law enacted by congress, would be an offense against the laws and authority of the United States, and an action or suit brought in consequence thereof would be one arising under the laws of the United States; but no such violation, or interfei*- ence is shown by the allegations of the bill in the original suit in this case, which sim- ply states the fact that improvements have been made in the river by the government, without stating where, and that Portland had been created a port of entry. In the case of Escanaba Co. v. Chicago, it was said: "As to the appropriations made by congress, no money has been expended on the im- provement of the Chicago river above the first bridge from the lake, known as 'Rush- Street Bridge.' No bridge, therefore, inter- feres with the navigation of any portion of the river which has been thus improved. But, if it were otherwise, it is not perceived how the improvement of the navigability of the stream can affect the ordinary means of crossing it by ferries and bridges." 107 U. S. 690, 2 Sup. Ct. 195. In the present case there is no allegation, if such an allegation would be material, that any improvements in the navigation of the Willamette river have been made by the government at any point above the site of the proposed bridge. As to the making of Portland a port of entry, the obsexTations of Mr. Justice Grier in the Passaic Bi'idge Cases, 3 Wall. 782, 793, App., are very apposite. Those cases were decided in September, 18.57, by dismissing the bills which were filed for injunctions against the erection of a railroad bridge across the Passaic river at Newark, New Jersey, and a plank-road bindge across the same river below Newark. The decrees were afiirmed here by an equally divided court, in December term, 1801. It being ur- ged, among other things, that Newark was a port of entry, and that the erection of these bridges, though under the authority of the state legislature, was in conflict with the act of congress establishing the port, Mr. Jus- tice Grier said: "Congress, by conferring the privilege of a port of entry upon a town or city, does not come in conflict with the police power of a state exercised in bridging her own rivers below such port. If the pow- er to make a town a port of entry includes the right to regulate the means by which its commerce is carried on, why does it not ex- tend to its turnpikes, railroads, and canals, — to land as well as water? Assuming the right (which I neither aftirm or deny) of con- gress to regulate bridges over navigable riv- ers below ports of entry, yet, not having done so, the courts cannot assume to them- selves such a power. There is no act of congress or rule of law Avhich courts could ENUMERATED POWERS OF CONGRESS. 39 apply to such a case." These views were adhered to by the same judge iu the subse- quent case of Gilman v. Philadelphia. The bridge which was the subject of controversy in that case was within the limits of the port of Philadelphia, which, by the act of 1799, included the citj' of Philadelphia, and by that of lSo-1 was extended northerly to Gun- ner's run. See 3 Wall. 718. That case arose soon after the Passaic Bridge Cases, and, so far as interference with navigation was concerned, was identical in character with them; and Mr. Justice Grier, upon the same grounds taken and asserted by him in those cases, dismissed the bill. The decree was affirmed in this court in December term, 1865, by a vote of seven justices to three. Justices Clifford, Wayne, and Davis dissent- ing; so that Justice Grier's views were final- ly affirmed by a decided majority of the court. It is urged that in the Wheeling Bridge Case, 13 How. 518, this court decided the bridge there complained of to be a nuisance, and decreed its prostration, or such increased elevation as to permit the tall chimneys of the Pittsburgh steamers to pass under it at high water. But in that case this court had original jurisdiction in consequence of a state being a party; and the complainant, the state of Pennsylvania, was entitled to in- voke, and the court had power to apply, any law applicable to the case, whether state law, federal law, or international law. The bridge had been authorized by the legisla- ture of Virginia, whose jurisdiction extend- ed across the whole river Ohio. But Vir- ginia, in consenting to the erection of Ken- tucky into a state, had entered into a com- pact with regard to the free navigation of the Ohio, 2 confirmed by the act of congress admitting Kentucky into the Union, which the court held to be violated by authorizing the bridge to be constructed in the manner it was; and the bridge, so constructed, in- juriously affected a supra-riparian state (Pennsylvania) bordering on the river, con- trary to international law. Mr. Justice Grier, in the Passaic Bridge Cases, disposes of the Wheeling Bridge Case as follows: "This legislation of Virginia being pleaded as a bar to further action of the court in the case, necessarily raised these questions: Could Virginia license or authorize a nui- sance on a public river, flowing, which rose in Pennsylvania, and passed along the bor- der of Virginia, and which, by compact be- tween the states, was declared to be 'free and common to all the citizens of the United States?' If Virginia could authori;?fe any ob- stiiiction at all to the channel navigation, she could stop it altogether, and divert the whole commerce of that great river from the state of Pennsylvania, and compel it to seek its 2 See Mr. Stanton's argument. 18 How. 523; 1 Bioren's Laws U. S. p. 675, art. 7. outlet by the railroads and other public im- provements of Virginia. If she had the sov- ereign right over this boundary river claimed by her, there would be no measure to her power. She would have the same right to stop its navigation altogether as to stop it ten days in a year. If the plea was admit- ted, Virginia could make Wheeling the head of navigation on the Ohio, and Kentucky might do the same at Louisville, having the same right over the whole river which Vir- ginia can claim. This plea, therefore, pre- sented not only a great question of interna- tional law, but whether rights secured to the people of the United States, by compact made before the constitution, were held at the mercy or caprice of eA^ery or any of the states to which the river was a boundary. The decision of the court denied this right. The plea being insufficient as a defense, of course the complainant was entitled to a de- cree prostrating the bridge, which had been erected pendente lite. But to mitigate the apparent hardship of such a decree, if ex- ecuted unconditionally, the court, in the ex- ercise of a merciful discretion, granted a stay of execution on condition that the bridge should be raised to a certain height, or have a draw put in it which would permit boats to pass at all stages of the navigation. From this modification of the decree no inference can be drawn that the courts of the United States claim authority to regulate bridges below ports of entry, and treat all state leg- islation in such cases as unconstitutional and void." "It is evident, from this statement," continues Justice Grier, "that the supreme court, in denying the right of Virginia to ex- ercise this absolute control over the Ohio rivei", and in deciding that, as a riparian pro- prietor, she was not entitled, either by the compact, or bj"^ constitutional law, to obstiaict the commerce of a supra-riparian state, had before them questions not involved in these cases, [the Passaic Bridge Cases,] and which cannot affect their decision. The Passaic river, though navigable for a few miles within the state of New .JerseJ^ and therefore a public river, belongs wholly to that state. It is no highway to other states; no commerce passes thereon from states be- i low the bridge to states above." 3 Wall. 792. This exposition of the Wheeling Bridge Case, by one who had taken a decided part in its discussion and determination, effectually dis- poses of it as a precedent for the jurisdic- tion of the circuit courts of the United States in matters pertaining to bridges erect- ed over navigable rivers, at least those erect- ed over rivers whose course is wholly with- in a single state. The Willamette river is one of that description. On the whole, our opinion is that the orig- inal suit in this case was not a suit arising under any law of the United States; and since, on such ground alone, the court below could have had jurisdiction of it, it fol- 40 THE POWERS OF CONGRESS. lows that the decree on the bill of review must be reversed, and the record remanded, with instructions to reverse the decree in the original suit, and to dismiss the bill filed therein, without prejudice to any other pro- ceeding which may be taken in relation to the erection of said bridge, not inconsistent with this opinion. ENUMERATED POWERS OF CONGRESS. 41 BOWMAN et al. v. CHICAGO & N. W. RY. CO.i (8 Sup. Ct. 689, 1062, 125 U. S. 465.) Supreme Court of the United States. March 19, 1888. In error to the circuit court of the United States for the Nortlieru district of Illinois. This action was begun in the circuit court of the United States for the Northern district ef Illinois, June 15, 1SS6, on which day the plaintiffs filed their declaration, as follows: "George A. Bowman, a citizen of the state of Nebraska, and Fred. W^. Bowman, a citi- zen of the state of Iowa, copartners, doing Itusiness under the name, firm, and style of Bowman Bros., at the city of Marshalltown, .state of Iowa, plaintiff's in this suit, by Blum & Blum, their attorneys, complain of the Chicago and Northwestern Railway Com- pany, a citizen of the Northern district of the state of Illinois, having its principal office at the city of Chicago, in said state, defendant in this suit, of a plea of trespass on the case; for that, whereas, the defendant on May 20, 1886, and for a long time previous there- to and thereafter, was possessed of and us- ing and operating a certain railway, and was a common carrier of goods and chattels thereon for hire, to-wit, from the citj^ of Chicago, in the state of Illinois, to the city of Council Bluffs, in the state of Iowa. That said defendant was at said time, and is now, a corporation existing under and by virtue of the laws of the state of Illinois, and that it was and is the duty of said defendant to carry from and to all stations upon its line of railway all freight tendered it for ship- ment. That upon May 20, 1886, the plain- tiff's offered to said defendant for shipment over its line of railway, and directed to them- selves at Marshalltown, Iowa, five thousand barrels of beer, which they had procured in the city of Chicago, to be shipped from said city to the city of Marshalltown, in the state of Iowa, which is a station lying and being on said defendant's line of railroad between said cities of Chicago and Council Bluffs, but the defendant then and there refused to re- ceive said beer, or any part thereof, for ship- ment, to the damage of the plaintiff's of ten thousand dollars, and therefore they bring their suit, etc. And for that the plaintiffs, neither of whom is an hotel keeper, a keep- er of a saloon, eating-house, grocery, or con- fectionery, on the 7th day of July, 1884, and upon several occasions thereafter, presented to the board of supervisors of Marshall coun- ty, Iowa, a certificate signed by a majority of the legal electors of Marshallk)wn, Mar- shall county, Iowa, whicln stated that said Fred. W. Bowman is a citizen of said coun- ty. That both of said plaintiffs possess a good moral character, and that they (said electors) believe said plaintiffs to be proper persons, and each of them to be a proper 1 Dissenting opinion of Mr, Justice Harlan, omitted. person, to buy and sell intoxicating liquore for the purposes named in section 1526 of the Iowa Code. That at said time, and upon several occasions thereafter, they and each of them, the said plaintiff's, filed a bond in the sum of three thousand dollars with two sureties, which bond was approved by the auditor of said county, as is provided by sec- tion 1528 of the Code of Iowa. That there- upon said board of supervisors refused to grant such permission to either of said plain- tiff's, or to them jointly. And for that, whereas, the defendant on May 20th, 1886, and for a long time previous thereto and thereafter, was possessed of and using and operating a certain railroad, and was a com- mon carrier of goods and chattels thereon for hire, to-wit, from the city of Chicago, in the state of Illinois, to the city of Council Bluffs, in the state of Iowa. That said defendant is a corporation, existing under and by virtue of the laws of the state of Illinois. That it was the duty of the said defendant to car- ry from and to all stations upon its line of railway all freight that might be intrusted to it, and that it was the duty of said de- fendant to transport from said city of Chi- cago to said city of Marshalltown the five thousand barrels of beer hereinbefore and hereinafter mentioned, which plaintiffs re- quested it so to transport. That in the com- j mencement of May, 1886, the plaintiff's pur- ! chased, at the city of Chicago, five thousand barrels of beer, at $6.50 per barrel; which I beer they intended to send to Marshalltown, Iowa, at which place and vicinity they could I have sold said beer at eight dollars per bar- j rel, as the defendant was then and there j informed. That on May 20, 1886, said plain- tiff's off'ered for shipment to said defendajit railway company said five thousand barrels of beer, directed to said plaintiffs, at the city of Marshalltown, in the state of Iowa; and requested said defendant to ship said beer over its road, with which request the defendant refused to comply, and declined to ship or receive said beer, or any part thereof, for shipment as aforesaid; the said defendant, by its duly-authorized agent, then and there stating that the said defendant company declined to receive said goods for shipment, and would continue to decline to .receive said goods, or any goods of like char- acter, for shipment into tliie state of Iowa. That on said day, to-wit, May 20, 1886, and for a long time theretofore and since, the plaintiff's were unable to purchase beer in the state of Iowa. That said plaintiff's, at said time, could procure no other means of transportation for said beer than said de- fendant, and that, by reason of the defend- ant's refusal to transport said beer, plain tiffs were compelled to sell said beer in the city of Chicago at $6.50 per barrel. That by reason of said refusal of said defendant to ship said beer plaintiff's have been damaged in the sum of ten thousand dollars, and there- fore they bring their suit," etc. To this 42 THE POWERS OF CONG HESS. declaration the defendant filed the follow- iuj? plea: "Now comes the said defendant, by W. C. Goudy, its attorney, and defends the wronj;: and injury, when," etc., "and says actio non," etc., "because it says that the beer in said five thousand barrels in the plaintiff's declaration, and in each count tliereof, mentioned, was at the several times in said declaration mentioned, and still is, iuluxicatins- liquor, within the meaning of the statute of loAva hereinafter set forth. That the city of Marshalltown in said dec- laration mentioned, is within the limits of the state of Iowa. That the said city of Chicago in the said declaration mentioned, is In the state of Illinois. That the said beer in said declaration mentioned, was of- fered to this defendant to be tmnsported from the state of Illinois to the state of Iowa. That heretofore, to-wit, ou the 5th day of April, A. D. 1881), the general assem- bly of the state of Iowa passed an act en- Titled 'An act amendatory of chapter 143 of the Acts of the Twentieth General As- sembly, relating to intoxicating liquors, and providing for the more effectual suppression of the illegal sale and trausportiition of in- toxicating liquors and abatement of nui- sances," which act is chapter GG of the Laws of Iowa, parsed at the twenty-first general assembly of said state, and which is printed and published in the Laws of Iowa for the year lS8li, at page — ; to which act this defendant hereby refers, and makes the same a part of this plea. That in and by the tenthi section of said act it was and is provided as follows, to-wit: 'That section l.jo3 of the Code, as amended and substi- tuted by chapter 143 of the Acts of the Twentieth General Assembly, be, and the same is hereby, repealed, and the following enacted in lieu thereof: Sec. 1.353. If any express company, railway company, or any agent or person in the employ of any ex- press company or railway company, or if any common carrier, or any person in the employ of any common carrier, or any per- son, knowingly bring within this state for any person or persons or corporation, or shall knowingly transport or convey between points, or from one place to another, in this state, for any other person or persons or corporation, any intoxicating liquors, without first having been furnished a certificate froiu and under the seal of the county auditor of the county to which said liquor is to be transported, or is consigned for transporta- tion, or within which it is to be conveyed from place to place, certifying that the con- signee or person to whom said liquor is to be transported, conveyed, or delivered is authorized to sell such intoxicating liquors in such county, such company, coiijoration, or person so offending, and eacli of them, and any agent of such company, corporation, or person so offending, shall, upon conviction thereof, be fined in the sum of one hundred dollars for each offense, and pay costs of prosecution, and the costs shall include a reasonable attorney fee, to be assessed by the court, which shall be paid into the coun- ty fund, and stand committed to the county jail until such fine and costs of prosecution are paid. The offense herein defined shall be held to be complete, and shall be held to have been committed in any county of the state through or to which said intoxicating lifiuors are transported, or in which the same is unloaded for transportation, or in Avhich said liquors are conveyed from place to place or delivered. It shall be the duty of the several county aiiditors of this state to issue the certificate herein contemplated to any person having such permit, and the cer- tificate so issued shall be truly dated when issued, and shall specify the date at which the permit expires, as shoAA'u by the county records.' And the defendant avers that at the several times mentioned in said declara- tion, and each of them, the aforesaid section was the law of the state of Iowa in full force and wholly vmrepealed, and that the said plaintift's did not at any time furnish this defendant Avith a certificate from and under the seal of the county auditor of the county of Marshall, the same being the county in which said city of Marshalltown is located, and the county to which said beer was offered to be transported, certifying that the person for or to Avhom the said beer was to be transported, was authorized to sell in- toxicating li(iuors in said county of Mar- shall, nor was this defendant furnished with any such certificate by any person whatso- ever. And the defendant avers that it could not receive said beer for transportation in the manner named and specified in the plain- tiff's declaration without violating the law of the state of Iowa above specified, and without subjecting itself to the penalties pro- vided in said act; and that this defendant assigned, at the time the said beer was of- fered to it for transportation as aforesaid, as a reason why it could not receive the same, the aforesaid statute of Iowa, Avhich prohibited this defendant from receiving said beer to be transported into the state of Iowa, or from transporting the said beer in- to the state of Iowa. And this the said de- fendant is ready to verify. "Wherefore it prays judgment." etc. To this plea the plain- tift's filed a general demurrer, and for cause of demurrer assigned that the statute of Iowa referred to and set out in the plea was unconstitutional and void. The demm-rer was overruled, and judgment entered thei'eon against the plaintift's; to reverse which this Avrit of error is prosecuted. Louis J. Blum, for plaintiffs in error. "W. C. Goudy, A. J. Baker, and James E. Mon- roe, for defendant in error. Mr. .Tustice MATTHEWS, after stating the facts as above, delivered the opinion of the court. It is not denied that the declaration sets ENUMERATED POWERS OF CONGRESS. 43 out a good cause of action. It alleges that the defendant was possessed of and oper- ated a certain railway, by means of which it became and was a common carrier of goods and chattels thereon for hire, from the city of Chicago, in the state of Illinois, to the city of Council Bluffs, in the state of Iowa, and that, as such, it was its duty to carry from and to all stations upon its line of railway all goods and merchandise that might be intrusted to it for that purpose. This general duty was imposed upon it by the common law as adopted and prevailing in the states of Illinois and Iowa. The sin- gle question, therefore, presented upon the record, is whether the statute of the state of Iowa,, set out in the plea, constitutes a defense to the action. The section of the statute referred to, be- ing section 1553 of the Iowa Code, as amend- ed by the act of April 5, 1886, forbids any common carrier to bring within the state of Iowa, for any person or persons or corpora- tion, any intoxicating liquors from any other state or territory of the United States, with- out first having been furnished with a cer- tificate, under the seal of the county auditor of the county to which said liquor is to be transported, or is consigned for transporta- tion, certifying that the consignee or per- son to whom said liquor is to be transport- ed, couvej'ed, or delivered is authorized to sell intoxicating liquors in siich county. This statutory provision does not stand alone, and must be considered with refer- ence to the system of legislation of Avliich it forms a part. The act of April 5, 1886, in which it is contained, relates to the sale of intoxicating liquors within the state of Iowa, and is amendatory of chapter 143 of the Acts of the Twentieth General Assem- bly of that state, "relating to intoxicating liquors, and providing for the more effectual suppression of the illegal sale and transpoi'- tation of intoxicating liquors and abatement of nuisances." The original section 15.53 of the Iowa Code contains a similar provision in respect to common carriers. By section 1.523 of the Code, the manufacture and sale of intoxicating liquors, except as thereinafter provided, is made unlawful, and the keeping of intoxicating liquor with intent to sell the same within the state, contrary to the pro- visions of the act, is prohibited; and the in- toxicating liquor so kept, together with the vessels in which it is contained, is declared to be a nuisance, to be forfeited and dealt with as thereinafter provided. Section 1524 excepts from the operation of the law sales by the importer thereof of foreign intoxi- cating liquor, imported under the authority of the laws of the United States regarding the importation of such liquoi-s, and in ac- cordance with such laws, provided that the said liquor at the time of said sale by said importer remains in the original casks or packages in which it was by him imported, and in quantities of not less than the quan- tities in which the laws of the United States require such liqviors to be imported, and is sold by him in said original casks or pack- ages, and in said quantities only. The law also permits the manufacture in the state of liquors for the purpose of being sold, ac- cording to the provisions of the statute, to be used for mechanical, medicinal, culinary, or sacramental purposes; and for these pur- poses only any citizen of the state, except hotel keepers, keepers of saloons, eating- houses, grocery keepers, and confectioners, is permitted, within the county of his resi- dence, to buy and sell intoxicating liquors, provided he shall first obtain permission from the board of supervisors of the county in which such business is conducted. It also declares the building or erection of whatever kind, or the ground itself in or upon which intoxicating liquor is manufactured or sold, or kept with intent to sell, contrary to laAV, to be a nuisance, and that it may be abated as such. The original provisions of the Code (section 155.5) excluded from the definition of intoxicating liquors, beer, cider from ap- ples, and wine from grapes, currants, and other fruits grown in the state; but by an amendment that section was made to in- clude alcohol, ale, wine, beer, s])irituous, vinous, and malt liquors, and all intoxicat- ing liquors whatever. It thus appears that the provisions of the statute set out in the plea, prohibiting the transportation by a common carrier of intoxicating liquor from a point within any other state for delivery at a place Avithin the state of Iowa, is in- tended to more effectually carry out the general policy of the law of that state with respect to the suppression of the illegal manufacture and sale of intoxicating liquor Avithin the state as a nuisance. It may therefore fairly be said that the provision in question has been adopted by the state of loAva, not expressly for the purpose of regu- lating commerce betAveen its citizens and those of other states, but as subservient to the general design of protecting the health and morals of its people, and the peace and good order of the state, against the physical and moral evils resulting from the unre- stricted manufacture and sale Avithin the state of intoxicating liquors. We have had recent occasion to consider state legislation of this character in its rela- tion to the constitution of the United States. In the case of Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, it AA^as said: "That legis- lation by a state prohibiting the manufac- ture, within her limits, of intoxicating liq- uors to be sold or bartered for general use as a beverage, does not necessarily infringe any right, privilege, or immunity secured bj^ the constitution of the United States is made clear by the decisions of this court rendered before and since the adoption of the 14th amendment. * * * These cases rest upon the acknoAvledged right of the states of the Union to control their purelj internal af- 44 THE POWERS OF CONGKESS. fairs, and in so doing, to protect the health, morals, and safety of their people by regula- tions that do not interfere with the execu- tion of the powers of the general govern- ment, or violate rights secured by the constitution of the United States." In the License Cases, 5 How. 504, the question was wliether certain statutes of Massachusetts, Rhode Island, and New Hampshire, relating to the sale of spirituous liquors, were re- pugnant to the constitution of the United States by reason of an alleged conflict be- tween them and the power of congress to regulate commerce with foreign countries and among the several states. The statutes of Massachu.setts and of Rhode Island con- sidered in those cases had reference to the sale within tho.se states, respectively, of in- toxicating liquor imported from foreign countries, but not sold or offered for sale Avitliin the state by the importer in original packages. The statute of New Hampshire, liowever. applied to intoxicating li(iuor im- ported from another state, and the decision in tliat case upheld its validity in reference to the disposition, by sale or otherwise, of the intoxicating liquor after it had been brought into the state. That judgment, tliei-efore. closely approached the question presented in this case. The justices all con- curred in the result, but there was not a majority which agreed upon auy specific ground for the conclusion, and it is neces- sary to compare the several opinions which were pronounced, in order to extract the propositions necessarily embraced in the judgment. Chief Justice Taney was of the opinion that congress had clearly the power to regulate such importation and sale, under the grant of power to regulate commerce among the several states; "yet, as congress has made no regulations on the subject," he said, "the traffic in the article may be law- fully regulated by the state as soon as it is lauded in its territory, and a tax imposed upon it, or a license required, or the sale altogether prohibited, according to the pol- icy which the state may suppose to be its interest or duty to pursue." Mr. Justice Catron and Mr. Justice Nelson agreed with the chief justice that the statute of NeAV Hampshire in question was a regulation of <-ommerce, but lawful, because not repug- nant to any actual exercise of the commer- cial power by congress. Mr. Justice McLean seemed to think that the power of congress ended with the importation, and that the sale of the article afti r it reached its des- tination was within the exclusive control of the state. He said: "If this tax had been laid on the property as an import into the state, the law would have been repugnant to the constitution. It Avould have been a regulation of commerce among the states, which has been exclusively given to con- gress. * * * B^it this barrel of gin, like all other property within the state of New Hampshire, was liable to taxation by the state. It comes under the general regula- tion, and cannot be sold without a license." Mr. Justice Daniel denied that the right of importation included the right to sell within the state, contrary to its laws. He impliedly admitted the exclusive power of congress to regulate importation, and maintained, as equally exclusive, the right of the state to regulate the matter of sale. Mr. Justice Woodl)ury concurred in the same distinction. He said (page G19): "It is manifest, also, whether as an abstract proposition or prac- tical measure, that a prohibition to import is one tiling, while a prohibition to sell with- out a license is another and entirely differ- ent." The first, he thought, was within the control of congress, the latter, within the exclusive jurisdiction of the state. He said: "The subject of buving and selling within a state is one as exclusively belonging to the power of the state over its internal trade as that to regulate foreign commerce is with the general government under the broadest construction of that power. * * * xiie idea, too, that a prohibition to sell would be tantamount to a prohibition to import, does not seem to me either logical or founded in fact. For, even under a prohibition to sell, a person could import, as he often does, for his own consumption, and that of his family and plantations; and also, if a merchant ex- tensively engaged in commerce, often does import articles with no view of selling them here, but of storing them for a higher and more suitable market in another state or abroad." He also said (page (52.5): "But this license is a regulation neither of domestic commerce between the states, nor of for- eign commerce. It does not operate on ei- ther, or the imports of either, until they have entered the state, and become compo- nent parts of its property. Then it has by the constitution tlie exclusive power to reg- ulate its own internal commerce and busi- ness in such articles, and bind all residents, citizens or not, by its regulations, • if they ask its protection and privileges; and con- gress, instead of being opposed and thwart- ed by regulations as to this, can no more interfere in it than the states can interfere in regulation of foreign commerce." Mr. Justice Grier concurred mainly in the opin- ion delivered by Mr. Justice McLean, and did not consider that the question of the exclusiveness of the power of congress to regulate commerce was necessarily connect- ed with the decision of the point that the states hud a right to prohibit the sale and consumption of an article of commerce with- in their limits, which they believed to be pernicious in its eft'ects, and the cause of pauperism, disease, and crime. From a, review of all the opinions, the fol- lowing conclusions are to be deduced as the result of the judgments in those cases: (1) All the justices concurred in the proposi- tion tliat tlie statutes in question were not made void by the mere existence of the ENUMERATED POWERS OF CONGRESS. 45 power to regulate commerce with foreign nations, and among the states, delegated to congress by the constitution. (2) Tliey all concurred in the proposition that tliere was no legislation by congress in pursuance of that power with which these statutes were in conflict. (3) Some, including the chief justice, held that the matter of the impor- tation and sale of articles of commerce was subject to the exclusive regulation of con- gress, whenever it chose to exert its power, and that any statute of the state on the same subject in conflict with such positive provisions of law enacted by congress would be void. (4) Others maintained the view that the power of congress to regulate com- merce did not extend to or include the sub- ject of the sale of such articles of commerce after they had been introduced into a state; but that when the act of importation ended, by a delivery to the consignee, the exclusive power over the subject belonged to the states as a part of their police power. From this analysis it is apparent that the ques- tion presented in this case was not decided in the License Cases. The point in judg- ment in them was strictly confined to the right of the states to prohibit the sale of intoxicating liquor after it had been brought within their territorial limits. The right to bring it within the states was not question- ed; and the reasoning which justified the right to prohibit sales admitted, by implica- tion, the right to introduce intoxicating liq- uor, as merchandise, from foreign countries, or from other states of the Union, free from the control of the several states, and subject to the exclusive power of congress over com- merce. It cannot be doubted that the law of Iowa now under examination, regarded as a rule for the transportation of merchandise, oper- ates as a regulation of commerce among the states. "Beyond all questinu, the transpor- tation of freight, or of the subjects of com- merce, for the purpose of exchange or sale, is a constituent of commerce itself. This has never been doubted, and probably the transportation of articles of trade from one state to another was the prominent idea in the minds of the framers of the constitution when to congress was committed the power to regulate commerce among the several states. A power to prevent embarrassing restrictions by any state was the thing de- sired. The power was given by the same words, and in the same clause, by which was conferred power to regulate commerce with foreign nations. It would be absui-d to suppose that the transmission of the sub- jects of trade from the state to the buyer, or from the place of production to the mar- ket, was not contemplated, for without tnat there could be no. consummated trade, either with foreign nations or among the states. * * * Nor does it make any difference whether this interchange of commodities is by land or by water. In either case the bringing of the goods from the seller to the buyer is commerce. Among the states it must have been principally by land when the constitution was adopted." Case of the State Freight Tax, 15 Wall. 232, 275, per Mr. Justice Strong. It was therefore decid- ed, in that case, that a tax upon freight transported from state to state was a regu- ulation of interstate transportation, and for that reason a regulation of commerce among the states. And this conclusion was reach- ed notwithstanding the fact that congress had not legislated on the subject, and not- withstanding the inference sought to be drawn from the fact that it was thereby left open to the legislation of the several states. On that point it was said by Mr. .Tustice Strong, speaking for the court, as follows (page 279): "Cases that have sus- tained state laws, alleged to be regulations of commerce among the states, have been such as related to bridges or dams across streams wholly within a state, police or health laws, or subjects of a kindred nature, not strictly of commercial regulations. The subjects were such as in Oilman v. Philadel- phia, 3 Wall. 713, it was said 'can be best regulated by rules and provisions suggested by the varying circumstances of different lo- calities and limited in their operation to such localities respectively.' However this may be, the rule has been asserted with great clearness that whenever the subjects over which a power to regulate commerce is as- serted are in their nature national, or admit- ting of one uniform system or plan of regu- lation, they may justly be. said to be of such a nature as to require exclusive legislation by congress. Cooley v. Board of Wardens, 12 How. 299; Crandall v. State, 6 Wall. 42. Surely transportation of passengers or mer- chandise through a state, or from one state to another, is of this nature. It is of na- tional importance that over that subject there should be but one regulating power; for if one state can directly tax persons or property passing through it, or tax them in- directly by levying a tax upon their trans- portation, every other may, and thus com- mercial intercourse between states remote from each other may be destroyed. The produce of Western states may thus be ef- fectually excluded from Eastern markets;, for, though it might bear the imposition of a single tax, it would be crushed imder a load of many. It was to guard against the possibility of such commercial embarrass- ments, no doubt, that the power of regulat- ing commerce among the states was confer- red upon the federal government.'" The dis- tinction between cases in which congress has exerted its power over commerce, and those in which it has abstained from its ex- ercise, as bearing upon state legislation touching the subject, was first plainly point- ed out by Mr. Justice Curtis in the case of Cooley V. Board of Wardens, 12 Hoav. 299, 318, and applies to commerce with foreign 46 THE POWERS OF CONGRESS. nations, as well as to commerce among the states. In that case, speaking of commerce with forei,i2:n nations, he said (page 319): "Now. the power to regnlate commerce em- braces a vast tield, containing not only many, bnt exceedingly various, subjects, 4iuite unlike in their nature,— some impera- tively demanding a single uniform rule, op- erating equally on the commerce of the Unit- ed States in every port; and some, like the subject now in question, as imperatively de- manding that diversity which alone can meet the local necessities of navigation." It was tlierefore lield. in that case, that the laws of the several states concerning pilot- age, although in their nature regulations of foreign commerce, were, in the absence of legislation on the same subject by congress, valid exercises of power. The subject was local, and not national, and Avas likely to be best provided for. not by one system or plan of regulations, but by as many as the legislative discretion of the several states should deem applicable to tlie local peculiar- ities of the ports within their limits; and to this it may be added that it was a subject imperatively demanding positive regulation. The absence of legislation on the subject, therefore, by congress, was evidence of its opinicn that the matter might be best reg- ulated by local authority, and proof of ics iulention that local regulations might be made. It may be argued, however, that aside from siu-li regulations as these, which are purely local, the inference to be drawn from the al)seuce of legislation by congress on the subject excludes state legislation affecting commerce with foreign nations more strong- ly than that affecting commerce among the states. Laws which concern the exterior re- lations of the United States with other na- tions and governments are general in their nature, and should proceed exclusively from the legislative authority of the nation. The organization of our state and federal sys- tem of government is such that the people of the several states can have no relations with foreign powers in respect to commerce, or any other subject, except through the gov- ernment of the United States, and its laws and treaties. Henderson v. ;Mayor of New York, yj U. S. 2."')!>. 273. The same neces- sity, perhaps, does not exist equally in ref- <>rence to 'commerce among the states. The power conferred upon congress to regulate commerce ajiiong the states is indeed con- tained in the same clause of the constitution wliich confers upon it power to regulate commerce with foreign nations. The grant is conceived in the same terms, and the two powers are undoubtedly of the same class and character, and equally extensive. The actual exercise of its power over either sub- ject is equally and necessarily exclusive of that of the states, and paramount over all the powers of the states; so that state leg- islation, however legitimate in its origin or object, when it conflicts with the positive legislation of congress, or its intention, rea- sonably implied from its silence, in respect to the subject of commerce of both kinds must fail. And yet, in respect to commerce among the states, it may be, for the reason already assigned, that the same inference is not always to be drawn from the absence of congressional legislation, as might be in the case of commerce with foreign nations. The question, therefore, may be still consid- ered in each case as it arises, whether the fact that congress has failed in the partic- ular instance to provide by law a i-egulation of commerce among the states is conclusive of its intention that the subject shall be free from all positive regulation, or that, un- til it positively interferes, such commerce may be left to be freely dealt with by the respective states. We have seen that in the Case of the State Freight Tax, 15 NVall. 232, a tax imposed by one state upon freight transported to or from another state was held to be void, as a regulation of commerce among the states, on the ground that the transportation of passengers or merchandise through a state, or from one state to anoth- er, was in its nature national; so that it shotil:^. be subjected to one uniform system or plan of regulation, under the control of one regulating power. In that case the tax was not imi)osed for the purpose of regulat- ing interstate commerce, but in order to raise a revenue, and would have been a legitimate exercise of an admitted power of the state if it had not been exerted so as to operate as a regulation of interstate commerce. Any other regulation of interstate commerce, ap- plied as the tax was in that case, Avould fall equally within the rule of its decision. If the state has not power to tax freight and passengers passing through it, or to or from it, from or into another state, much less would it have the power directly to regulate such transportation, or to forbid it altogeth- er. If, in the present case, the law of Iowa operated upon all merchandise sought to be brought from another state into its limits, there could be no doubt that it would be a regulation of commerce among the states, and repugnant to the constitution of the United States. In point of fact, howcA'er, it applies only to one class of articles of a par- ticular kind, and prohibits their introduction into the state upon special grounds. It re- mains for us to consider whether those grounds are sutticient to justify it as an ex- ception from the rule Avhich would govern if they did not exist. It may be material, also, to state, in this connection, that congress had legislated on the general subject of interstate commerce by means of railroads prior to the date of the transaction on which the present suit is founded. Section 5258, Rev. St., provides that "every railroad company in the United States, whose road is operated by steam, its successors and assigns, is hereby authorized ENUMEKATED POWERS OF CONGRESS. 47 to carry upou and over its road, boats, bridg- es, and ferries, all passengers, troops, gov- ernment supplies, mails, freight, and prop- erty on their way from any state to another state, and to receive compensation therefor, and to connect with roads of other states so as to form continuous lines for the trans- portation of the same to the place of destina- tion." In the case of Railroad Co. y. Rich- mond, 19 Wall. 584, this section, then con- stituting a part of the act of congress of June 15, 1866, was considered. Referring to this act and the act of July 25, 1866, author- izing the construction of bridges over the Mississippi river, the court say: "These acts were passed under the poAver vested in con- gress to regulate commerce among the sev- eral states, and were designed to remove trammels upon transportation between dif- ferent states which had previously existed, and to prevent a creation of such trammels in future, and to facilitate railway transpor- tation by authorizing the construction of bridges over the navigable waters of the Mississippi, and they were intended to reach trammels interposed by state enactments or by existing laws of congress. * * * -p^jg power to regulate commerce among the sev- eral states was vested in congress, in order to secure equality and freedom in commer- cial intercourse against discriminating state legislation."' Congress had also legislated on the subject of the transportation of passen- gers and merchandise in chapter 6, tit. 48, Rev. St. ; sections 4252 to 4289, inclusive, having reference, however, mainly to trans- portation in vessels by water. But sections 4278 and 4279 relate also to the transporta- tion of nitro-glycei'iu, and other similar ex- plosive substances, by land or water, and ei- ther as a matter of commerce with foreign countries, or among the several states. Sec- tion 4280 provides that "the two preceding- sections shall not be so construed as to pre- vent any state, territory, district, city, or town within the United States from regulat- ing or from prohibiting the traffic in or trans- portation of those substances between per- sons or places lying or being Avithin their re- spective territorial limits, or from prohibiting the introdviction thereof into such limits for sale, use, or consumption therein." So far as these regulations made by congress ex- tend, they are certainly indications of its in- tention that the transportation of conmiodi- ties betAveen the states shall be free, except Avhere it is positively restricted by congress itself, or by the states in particular cases by the express permission of congress. On this point the language of this court in the case of County of Mobile v. Kimball, 102 U. S. 691, 697, is applicable. Repeating and ex- panding the idea expressed in the 0])inion in the case of Cooley v. Board of Wardens, 12 HoAV. 299, this court said: "The subjects, in- deed, upon which congress can act under this poAA'er, are of infinite A-ariety, requiring for their successful management different plans or modes of treatment. Some of them are national in their character, and admit and re- quire uniformity of regulation, affecting alike all the states; others are local, or are mere aids to commerce, and can only be properly regulated by provisions adapted to their spe- cial circumstances and localities. In the former class may be mentioned all that por- tion of commerce with foreign countries or between the states which consists in the transportation, purchase, sale, and exchange of commodities. Here, there can of neces- sity be only one system or plan of regula- tions; and that, congress alone can pre- scribe. Its non-action, in such cases, Avith respect to any particular commodity or mode of transportation, is a declaration of its pur- pose that the commerce in that commodity, or by that means of transportation, shall be free. There would otherAAase be no security against conflicting regulations of different states; each discriminating in faA'or of its OAAm products, and against the products of citizens of other states. And it is a matter of public history that the object of vesting in congress the poAA'er to regulate commerce Avith foreign nations and among the states Avas to insure uniformity of regulation against conflicting and discriminating state legislation." Also (page 702): "Commerce AAath foreign countries and among the states, strictly considered, consists in intercoiirse and traffic; including, in these terms, naviga- tion and the transportation and transit of persons and property, as AA^ell as the pur- chase, sale, and exchange of commodities. For the regulation of commerce, as thus de- fined, there can be only one system of rules, applicable alike to the AA^hole country; and the authority Avhich can act for the whole country can alone adopt such a system. Ac- tion upon it by separate states is not, there- fore, permissible." The principle thus annoimced has a more obvious application to the circumstances ot such a case as the present, AA^hen it is con- sidered that the laAV of the state of loAva un- der consideration, while it professes to regu- late the conduct of carriers engaged in trans- portation within the limits of that state, nevertheless materially affects, if allowed to operate, the conduct of such carriers, both as respects their rights and obligations, in ev- ery other state into or through Avhich they pass, in the prosecution of their business of interstate transportation. In the present case, the defendant is sued as a common car- rier in the state of Illinois, and the breach of duty alleged against it is a A'iolation of the laAV of that state in refusing to receiA'e and transport goods which, as a common car- rier, by that law, it was bound to accept and cariT- It interposes as a defense a law of the state of Iowa Avhich forbids the delivei-y of such goods within that state. Has the law of loAva any extraterritorial force which does not belong to the laAv of the state of Il- linois? If the laAV of loAva forbids the de- 48 THE POWERS OF CONGRESS. livery, and the law of Illinois requires the tiansiiortatiou, which of the two shall pre- vail? How can the former make void the latter? In view of this necessary operation of the law of Iowa, if it be valid, the lan- gua^ie of this court in the case of Hall v. De (Uiir, 95 U. S. 485, 488, is exactly in point. It was there said: "But we think it may safely be said that state legislation, which seeks to impose a direct burden upon inter- state commerce, or to interfere directly with its freedom, does encroach upon the exclu- sive power of congress. The statute now un- der consideration, in our opinion, occupies that position. It does not act upon the busi- ness through the local instruments to be em- ployed after coming Avithin the state, but di- rectly upon the business as it comes into the state from without, or goes out from within. While it purports only to control the carrier when engaged within the state, it must nec- essarily influence his conduct to some extent in the management of his business through- out his entire voyage. His disposition of passengers taken up and put down within the state, or taken up within to be carried without, cannot but affect in a greater or less degree those taken up without and brought within, and sometimes those taken up with- in and put down without. A passenger in the cabin set apart for the use of whites without the state must, when the boat comes within, share the accommodations of that cabin with such colored persons as may come on board afterwards, if the law is enforced. It was to meet just such a case that the commercial clause in the constitution was adopted. The river Mississippi passes through or along the borders of ten different states, and its tributaries reach many more. The commerce upon these waters is im- mense, and its regulation clearly a matter of national concern. If each state was at lib- erty to regulate the conduct of carriers while within its jurisdiction, the confusion likely to follow could not but be productive of great inconvenience and unnecessary hardship. Each state could provide for its own pas- sengers, and regulate the transportation of its own freight, regardless of the interests of others. Nay, more, it could prescribe rules by which the carrier must be governed witli- iu the state, in respect to passengers and property bi-ought from without. On one side of the river or its tributaries he might be re- quired to observe one set of rules, and on the other another. Commerce cannot flourish in the midst of such embarrassments. No carrier of passengers can conduct his busi- ness with satisfaction to himself, or comfort to those employing him, if on one side of a state line his pa^seng(n•s, both white and col- ored, must be permitted to occupy the same cabin, and on the other be kept separate. Uniformity in the regulations by which he is to be governed from one end to the other of his route is a necessity in his business, and, to secure it, congress, which is untrammeled by state lines, has been vested with the ex- clusive legislative power of determining what such regulations shall be." It is impossible to justify this statute of Iowa by classifying it as an inspection law. The right of the states to pass inspection laws is expressly recognized in article 1, § 10, Const., in the clause declaring that "no state shall, without the consent of congress, lay any imposts or duties on imports or ex- ports, except what may be absolutely neces- sary for executing its inspection laws." * * * "And all such laws shall be subject to the revision and control of the congress." The nature and character of the inspection laws of the states, contemplated by tliis pro- vision of the constitution, were very fully exhibited in the case of Turner v. Maryland, 107 U. S. 38, 2 Sup. Ct. 44. "The object'of in- spection laws," said Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, 20o, "is to improve the quality of articles produced by the labor of a country, to tit them for expor- tation, or, it may be, for domestic use. They act upon the subject, before it becomes an ar- ticle of foreign commerce, or of commerce among the states, and prepare it for that purpose." They are confined to such par- ticulars as in the estimation of the legisla- ture, and according to the customs of trade, are deemed necessary to tit the inspected article for the market, by giving to the pur- chaser public assurance that the article is in that condition, and of that quality, Avhich makes it merchantable, and fit for use or consumption. They are not founded on the idea that the things in respect to which in- spection is required, are dangerous or nox- ious in themselves. As was said in Tiu-ner v. Maryland, 107 U. S. 38. 55, 2 Sup. Ct. 44, 58: "Recognized elements of inspection laws have always been quality of the article, form, capacity, dimensions, and weight of pack- age, mode of putting up, and marking and branding of various kinds; all these matters being supervised by a public officer having authority to pass or not pass the article as lawful merchandise, as it did or did not an- swer the prescribess of the federal government contribiited more to that great revolution which induced the present system than the deep and general conviction that commerce ought to be regulated by congress. It is not, therefore, matter of surprise that the grant should be as extensive as the mis- chief, and should comprehend all foreign commerce and all commerce among the states. To construe the power so as to im- pair its etlicacy would tend to defeat an ob- ject, in the attainment of which the Ameri- can government took, and justly took, that strong interest which arose from a full con- viction as to its necessity." Brown v. Ma- ryland. 12 Wheat. 446. To these views I may add, that if the states have the power asserted, to exclude from importation with- in their limits any articles of commerce be- cause in their judgment the articles ma.v be injurious to their interests or policy, they may prescribe conditions upon which such importation will be admitted, and thus es- tablish a system of duties as hostile to free commerce among the states as any that ex- isted previous to the adoption of the consti- tution. KEGULATION OF COMMERCE. 57 GIBBONS T. OGDEN.i (9 Wheat. 1.) Supreme Court of the United States. Feb. Term, 1824. This was a bill filed by Aaron Ogden in the court of chancery of the state of New York against Thomas Gibbons to enjoin de- fendant from navigating the waters of the state of New York with boats propelled by fire or steam. Complainant asserted an ex- clusive right to navigate those waters^ by boats of that description, as assignee of the right created by several acts of the legisla- ture of the state of New York securing that privilege to Robert R. Livingston and Robert Fulton. There was a decree for complain- ant, which was atfirmed by the court for the trial of impeachments and correction of er- rors of the state of New York, and defend- ant brought error. Reversed and bill dis- missed. Webster and Wirt, Atty. Gen., for plaintiff. Oakley & Emmett, for defendant. Mr. Chief .Justice MARSHALL delivered the opinion of the court. The appellant contends that this decree is erroneous, because the laAvs which purport to give the exclusive privilege it sustains, are repugnant to the constitution and laws of the United States. They are said to be repugnant — 1. To that clause in the constitution which authorizes congress to regulate commerce. 2. To that which authorizes congress to promote the progress of science and useful arts. The state of New York maintains the con- stitutionality of these laws; and their legisla- ture, their council of revision, and their judges, have repeatedly concurred in this opinion. It is supported by great names — by names which have all the titles to consider- ation that A'irtue, intelligence, and office, can bestow. No tribunal can approach the deci- sion of this question, Avithout feeling a just and real respect for that opinion which is sustained by such authority; but it is the province of this court, while it respects, not to bow to it implicitly; and the judges must exercise, in the examination of the subject, that understanding which Providence has be- stowed upon them, with that independence which the people of the United States ex- pect from this department of the govern- ment. • As preliminary to the very able discus- sions of the constitution which we have heard from the bar, and as having some in- fluence on its construction, reference has been made to the political situation of these states, anterior to its formation. It has been 1 Opinion of Mr. Justice Johnson omitted. said that they were sovereign, were com- pletely independent, and were connected with each other only by a league. This is true. But, when these allied sovereigns con- verted their league into a government, when they converted their congress of ambassa- dors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature, empowered to enact laws on the most interesting sub- jects, the whole character in which the states appear underwent a change, the extent of which must be determined by a fair consid- eration of the instrument by which that change was effected. This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants, expressly, the means for carrying all others into execution, congress is authorized "to make all laws which shall be necessary and proper" for the purpose. But this limita- tion on the means which may be used, is not extended to the powers which are com- f erred; nor is there -one sentence in the con- stitution, which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not, therefore, think ourselves justi- fied in adopting it. What do gentlemen mean by a strict construction? If they con- tend only against that enlarged construction, which wvuld extend words beyond their nat- ural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the con- stitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and ob- jects of the instrument; for that narrow construction, which would cripple the gov- ernment, and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly under- stood, render it competent; then we cannot perceive the propriety of this strict construc- tion, nor adopt it as the rule by which the constitution is to be expounded. As inen whose intentions require no concealment, generally employ the words which most di- rectly and aptly express the ideas they in- tend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have em- ployed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the ex- tent of any given power, it is a well settled rule that the objects for which it was given. 68 THE POWERS OF CONGRESS. especially when those objects are expressed in the instrument itself, should have great influence in the construction. We know of no reason for excluding this rule from the present case. The grant does not convey power which might be beneficial to the grantor, if retained by himself, or which can enure solely to the benefit of the grantee; but is an investment of power for the gen- eral advantage, in the hands of agents se- lected for that purpose; which power can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant. We know of no rule for con- struing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were con- ferred. The words are: "Congress shall have pow- er to regulate commerce Avith foreign nations, and among the several states, and with the Indian tribes." The subject to be regulated is commerce; and our constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodi- ties, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more: it is in- tercourse. It describes the commei'cial inter- couise between nations, and i)arts of nations, in all its branches, and is regulated by pre- scribing rules for carrying on that inter- course. The mind can scarcely conceive a system for regulating commerce between na- tions, which shall exclude all laws concern- ing navigation, which shall be silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of indi- viduals, in the actual employment of buying and selling, or of barter. If commerce does not include navigation, the government of the Union has no direct power over that subject, and can make no law prescribing what shall constitute Amer- ican vessels, or requiring that they sliall be navigated by American seamen. Yet this power has been exercised from the com- mencement of the government, has been ex- ercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands, and has uniformly understood, the word "com- merce," to comprehend navigation. It was so understood, and must have been so im- derstood, when the constitution was framed. The power over commerce, including naviga- tion, was one of the primary objects for which the people of America adopted their government, and must have been contem- plated in forming it. The convention must have used the word in that sense, because all have understood it in that sense; and the attempt to restrict it comes too late. If the opinion that "commerce," as the word is used in the constitution, compre- hends navigation also, requires any addition- al confirmation, that additional confirmation is, we think, furnished by the words of the instrument itself. It is a rule of construction acknowledged by all, that the exceptions from a power mark its extent; for it would be absurd, as welt as useless, to except from a granted power that which Avas not granted— that which the words of the grant could not com- prehend. If, then, there are in the consti- tution plain exceptions from the power over navigation, plain inhibitions to the exercise of that power in a particular way, it is a proof that those who made these exceptions, and prescribed these inhibitions, understood the power to Avhich they applied as being granted. The 9th section of the 1st article declares that "no preference shall be giA-en, by any regulation of commerce or revenue, to the ports of one state over those of another." This clause cannot be understood as applica- ble to those laws only which are passed for the purposes of revenue, because it is ex- pressly applied to commercial regulations; and the most obvious preference which can be given to one port over another, in regu-' lating commerce, relates to navigation. But the subsequent part of the sentence is still more explicit. It is, "nor shall A^essels bound to or from one state, be obliged to enter, clear, or pay duties, in another." These Avords have a direct reference to naviga- tion. The universally acknoAvledged power of the goA'ernmeut to impose embargoes, must also be considered as shoAving that all America is united in that construction which comprehends navigation in the Avord com- merce. Gentlemen liaA'e said, in argument, that this is a bianch of the war-making poAver, and that an embargo is an instru- ment of Avar, not a regulation of trade. That it may be, and often is, used as an instrument of Avar, cannot be denied. An embargo may be imposed for the purpose of facilitiiting the equipment or manning of a fleet, or for the purpose of concealing the progress of an expedition preparing to sail from a particular port. In these, and in sim- ilar cases, it is a military instrument, and partakes of the nature of Avar. But all em- bargoes are not of this description. They are sometimes resorted to Avlthout a vicAV to Avar, and with a single vicAV to commerce. In such case, an embargo is no more a AA'ar measure than a merchantman is a shi]) of Avar, because both are vessels Avhich navi- gate the ocean with sails and .seamen. When congress imposed that embargo which, for a time, engaged the attention of EEGULATION OP COMMERCE. 59 every man in the United States, ttie avowed object of tlae law was, tlie protection of com- merce, and tlie avoiding of war. By its friends and its enemies it Avas treated as a commercial, not as a war measure. Tlie persevering earnestness and zeal with which it was opposed, in a part of our country which supposed its interests to be vitally affected by the act, cannot be forgotten. A want of acuteness in discovering objections to a measure to which they felt the most deep-rooted hostility, will not be imputed to those who were arraj^ed in opposition to this. Yet they never suspected that navigation was no branch of trade, and was, there- fore, not comprehended in the power to reg- ulate commerce. They did, indeed, contest the constitutionality of the act, but, on a principle which admits the construction for which the appellant contends. They denied that the particular law in question was made in pursuance of the constitution, not because the power could not act directly on vessels, but because a perpetual embargo was the annihilation, and not the regulation of commerce. In terms, they admitted the applicability of the words used in the con- stitution to vessels; and that, in a case which produced a degree and an extent of excitement, calculated to draw forth every principle on which legitimate resistance could be sustained. No example could more strongly illustrate the universal understand- ing of the American people on this svibject. The word used in the constitution, then, comprehends, and has been always under- stood to comprehend, navigation, within its meaning; and a power to regulate naviga- tion is as expressly granted as if that term had been added to the word "commerce." To what commerce does this power ex- tend? The constitution informs us, to com- merce "with foreign nations, and among the several states, and with the Indian tribes." It has, we believe, been universally admit- ted that these words comprehend every spe- cies of commercial intercourse between the United States and foreign nations. No sort of trade can be carried on between this country and any other, to which this power does not extend. It has been truly said that commerce, as the word is used in the constitution, is a unit, every part of which is indicated by the term. If this be the admitted meaning of the word, in its application to foreign nations, it mush carry the same meaning throughout the sentence, and remain a unit, unless there be some plain intelligible cause which alters it. The subject to which the power is next applied, is to commerce "among the several states." The word "among" means inter- mingled with. A thing which is among oth- ers, is intermingled with them. Commerce among the states, cannot stop at the external boundary line of each state, but may be in- troduced into the interior. It is not intended to say that these words comprehend that commerce which is com- pletely internal, which is carried on be- tween man and man in a state, or between different parts of the same state, and which does not extend to or affect other states. Such a power would be inconvenient, and is certainly unnecessary. Comprehensive as the word "among" is,- it may very properly be restricted to that com- jmerce which concerns more states than one. The phrase is not one which would probably have been selected to indicate the complete- ly interior traffic of a state, because it is not an apt phrase for that pui'pose; and the enumeration of the particular classes of com- merce to which the power was to be ex- tended, would not have been made, had the intention been to extend the power to every description. The enumeration presupposes something not enumerated; and that some- thing, if we regard the language, or the sub- ject of the sentence, must be the exclusively internal commerce of a state. The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state, which do not affect other states, and Avith which it is not necessary to interfere, for the pur- pose of executing some of the general poAv- ers of the goA-ernment. The completely in- ternal commerce of a state, then, may be considered as reserved for the state itself. But, in regulating commerce Avith foreign nations, the poAver of congress does not stop at the jurisdictional lines of the several states. It Avould be a very useless poAver, if it could not pass those lines. The commerce of the United States Avith foreign nations, is that of the Avhole United States. Every dis- trict has a right to participate in it. The deep streams Avhich penetrate our country in every direction, pass through the interior of almost every state in the Union, and fur- nish the means of exercising this right. If congress has the power to regulate it, that poAver must be exercised Avhenever the sub- ject exists. If it exists Avithin the states, if a foreign voyage may commence or terminate at a port within a state, then the poAver of congress may be exerciseat a state might impose duties on exi^oi i;s and imports if not ex- pressly forbid ; a will be conceded; but that it follows ;u" a consequence, from this concession, that a state may regulate com- merce wit^; foreign nations and among the states, caiinot be admitted. We must first determine whether the act of laying "duties or imposts on imports or exports," is considered in the constitution as a branch of the taxing power, or of the power to regulate commerce. We think it very clear, that it is' considered as a branch of the taxing power. It is so treated in the first clause of the 8th section: "Congress shall have power to lay and collect taxes, dutieS; imposts, and excises;" and before commerce is mentioned, the rule by which the exercise of this power must be governed is declared. It is, that all duties, imposts, and excises, shall be uniform. In a sepa- rate clause of the enumeration, the power to regulate commerce is given, as being entire- ly distinct from the right to levy taxes and imposts, and as being a new power not be- fore conferred. The constitution, 4hen, con- siders these powers as substantive, and dis- tinct from each other; and so places them in the enumeration it contains. The power of imposing duties on imports is classed with the power to levy taxes, and that seems to be its natural place. But the pow- er to levy taxes could never be considered as abridging the right of the states on that subject; and they might, consequentlj^ have exercised it by levying duties on imports or exports, had the constitution contained no prohibition on this subject. This prohibi- tion, then, is an exception from the acknowl- edged power of the states to levy taxes, not from the questionable power to regulate commerce. "A duty of tonnage" is as much a tax as a duty on imports or exports; and the rea- son which induced the prohibition of those taxes extends to this also. This tax may be imposed by a state with the consent of con- gress; and it may be admitted that congress cannot give a right to a state in virtue of its own powers. But a duty of tonnage be- ing part of the power of imposing taxes, its prohibition may certainly be made to de- pend on congress, without affording any im- plication respecting a power to regulate commerce. It is true that duties may often be, and in fact often are, imposed on ton- nage, with a view to the regulation of com- merce; but they may be also imposed with a view to revenue; and it was, therefore, a prudent precaution to prohibit the states from exercising this power. The idea that the same measure might, according to cir- cumstances, be arranged with different classes of power, was no novelty to the fram- ers of our constitution. Those illustrious statesmen and patriots had been, many of them, deeply engaged in the discussions which preceded the war of our Revolution, and all of them were well read in those dis- cus-sions. The right to regulate commerce, even by the imposition of duties, was not controverted; but the right to impose a duty for the purpose of revenue, produced a war as important, perhaps, in its consequences to the human race, as any the world has ever witnessed. These restrictions, then, are on the taxing power, not on that to regulate commerce; and presuppose the existence of that which they restrain, not of that which they do not purport to restrain. But the inspection laws are said to be regulations of commerce, and are certainly recognized in the constitution as being pass- ed in the exercise of a power remaining with the states. That inspection laws may have a remote and Considerable influence on commerce will not be denied; but that a power to regu- late commerce is the source from which the right to pass them is derived, cannot be ad- mitted. The object of inspection laws is to improve the quality of articles produced by the labor of a country; to fit them for ex- portation; or it may be, for domestic use. They act upon the subject before it becomes an arti< ■ ^ of foreign commerce, or of com- merce among the states, and prepare it for that purpose. They form a portion of that immense mass of legislation, which em- braces every thing within the territory of a state, not surrendered to a general govern- ment; all which can be most ads'antageous- 62 THl': POWERS OF CONGRESS. ly exercised by the states themselves. In- spection hiws, quarantine laws, health laws of every descri])tion, as well as laws for reyiilatiui^: the internal commerce of a state, and those which respect turnpike roads, fer- ries. &c., are component parts of this mass. No direct general power over these objects is f;ranted to congress; and, consequently, they remain subject to state legislation. If the legislative power of the Union can reach Them, it must be for national purposes; it must be where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given. It Is obvious that the government of the Un- ion, in the exercise of its express powers, that, for example, of regulating (ommerce with foreign nations and among the states, may use means that may also be employed by a state, in the exercise of its acknowl- edged powers; that, for example, of regu- lating commerce within the state. If con- gress license vessels to sail from one port to another in the same stat,f, the act is sup- posed to be, necessarily, incidental to the power expressly granted to congress, and implies no claim of a direct power to regu- late the purely intei'ual commerce of a state, ■or to act directly on its system of police. So if a state, in passing laws on sul)jects ac- knowledged to be within its control, and witli a view to those subjects, shall adopt a measure of the same character Avith one Avhich congress may adopt, it does not de- rive its authority from the particular power which has been granted. l)ut from some other which remains with the state, and may be executed by the same means. All experience shows that the same measures, or measiu'es scarcely distinguishable from each other, may flow from distinct powers; but this does not prove that the powers them- selves are identical. Although the means used in their execution may sometimes ap- proach each other so nearly as to be con- founded, there are other situations in which they are sufRcieutly distinct to establish their individuality In our complex system, presenting the rare and ditttcult scheme of one general govern- ment, wliose action extends over the whole, but which possesses only certain enumerated powers; and of numerous state governments, which retain and exercise all poAvers not del- egated to the Union, contests respecting power must arise. Were it even otherwise, the measures taken by the respective gov- ernments toexecute their acknowledged pow- ers, would often be of the same description, and might, sometimes, interfere. This, how- ever, does not prove that the one is exercis- ing, or has a right to exei-cise, the powers of the other. The acts of congress, passed in 171)6, and 17i)9 (1 Stat. 474, G19). empoAvering and di- recting the officers of the general govern- ment to conform to, and assist in the execu- tion of the quarantine and health laAVs of a state, proceed, it is said, upon the idea that these laAvs are constitutional. It is undoubt- edly true that they do proceed upon that idea; and the constitutionality of such laws has never, so far as we are informed, been denied. But they do not imply an acknowl- edgment that a state may rightfully regulate commerce with foreign nations, or among the states; for they do not imply that such laws are an exercise of that poAver, or enacted Avith a Aiew to it. On the contrary, they are treated as quarantine and health laAVS, are so denominated in the acts of congress, and are considered as floAving from the acknoAvl- edged poAver of a state, to provide for the health of its citizens. But as it Avas ap- parent that some of the provisions made for this purpose, and in A'irtue of this power, might interfere with, and be affected by the laAvs of the United States, made for the i"eg- ulation of commerce, congress, in that spirit of harmony and conciliation, Avhich ought alAA'ays to characterize the conduct of go\"- ernments standing in the relation Avhich that of the Union and those of the states bear to each other, has directed its officers to aid in the execution of these laAvs; and has, in some measure, adapted its OAvn legislation to this object, by making provisions in aid of those of the states. But in making these pro- A'isions the opinion is unequivocally mani- fested, that congress may control the state laAvs, so far as it may be necessary to con- trol them, for the regulation of commerce. The act passed in l.S()3 (8 Stat. p. ")"JU), pro- hibiting the inq)ortation of slaves into any stat(j Avhich shall itself pi-ohibit their impor- tation, implies, it is said, an admission, that the states possessed the poAver to exclude or admit them; from Avhich it is inferx'ed that they possess the same power Avith re- spect to other articles. If this inference Avere correct; if this pow- er Avas exercised, not under any particular clause in the constitution, but in A'irtue of a genei'al right over the subject of commerce, to exist as long as the constitution itself, it might now be exercised. Any state might noAV import African slaA'es into its OAvn ter- ritory. But it is obvious that the poAver of the states over this subject, previous to the year 1808, constitutes an exception to the poAver of congress to regulate commerce, and the exception is expressed in such Avords as to manifest clearly the intention to continue the preexisting right of the states to admit or exclude for a limited period. The Avords are, "the migration or importation of such persons as any of the states uoav existing, shall think proper to admit, shall not be pro- hibited by the congress prior to the year 1808." The Avhole object of the exception is, to preserve the poAver to those states Avhich might be disposed to exercise it; and its lan- guage seems to the court to convey this idea une(]uivocally. The possession of tliis par- ticular poAver tlien, during the time limited in the constitution, cannot be admitted to KEGULATION OF COMMERCE. 63 prove the possession of any other similar power. It has been said that the act of August 7, 1789 (1 Stat. 54), acknowledges a concurrent power in the states to regulate the conduct of pilots, and hence is inferred an admission of their concurrent right with congress to regulate commerce with foreign nations, and amongst the states. But this inference is not, we think, justified by the fact. Although congress cannot enable a state to legislate, congress may adopt the provi- sions of a state on any subject. When the government of the Union was brought into existence, it found a system for the regula- tion of its pilots in full force in every state. The act which has been mentioned, adopts this system, and gives it the same validity as if its provisions had been specially made by congress. But the act, it may be said, is prospective also, and the adoption of laws to be made in future, presupposes the right in the maker to legislate on the subject. The act unquestionably manifests an in- tention to leave this subject entirely to the states, until congress should think proper to interpose; but the very enactment of such a law indicates an opinion that it was neces- sary; that the existing system would not be applicable to the new state of things, unless expressly applied to it by congress. But this section is confined to pilots within the "bays, inlets, rivers, har])ors, and ports of the Unit- ed States," which are, of course, in whole or in part, also within the limits of some particular state. The acknowledged power of a state to regulate its police, its domestic trade, and to govern its own citizens, may enable it to legislate on this subject, to a considerable extent; and the adoption of its system by congress, and the application of it to the whole subject of commerce, does not seem to the court to imply a right in the states so to apply it of their OAvn authority. But the adoption of the state system being- temporary, being only "until further legis- lative provision shall be made by congress," shows, conclusively, an opinion that congress could control the whole subject, and might adopt the system of the states, or provide one of its own. A state, it is said, or even a private citizen, may construct lighthouses. But gentlemen must be aware that, if this proves a power in a state to regulate commerce, it proves that the same power is in the citizen. States, or individuals who own lands, may, if not forbidden by law, erect on those lands what buildings they please; but this pcwwer is en- tii-ely distinct from that of regulating com- merce, and may, we presume, be restrained, if exercised so as to produce a public mis- chief. These acts were cited at the bar for the purpose of showing an opinion in congress that the states possess, concurrently with the legislature of the Union, the power to regulate commerce with foreign nations and among the states. Upon reviewing them, we think they do not establish the proposition they were intended to prove. They show the opinion that the states retain powers en- abling them to pass the laws to which allu- sion has been made, not that those laws proceed from the particular power which has been delegated to congress. It has been contended, by the counsel for the appellant, that, as the word to "regulate" implies in its nature full power over the thing to be regulated, it excludes, necessari- ly, the action of all others that would per- form the same operation on the same thing. That regulation is designed for the entire re- sult, applying to those parts Avhich remain as they were as well as to those which are altered. It produces a uniform whole, which is as much disturbed and deranged by changing what the regulating power designs to leave untouched, as that on which it has operated. There is great force in this argument, and the court is not satisfied that it has been re- futed. Since, however, in exercising the power of regulating their own purely internal affairs, whether of trading or police, the states may sometimes enact laws, the validity of which depends on their interfering with, and be- ing contrary to, an act of congress passed in pursuance of the constitution, the court will enter upon the inquiry, whether the laws of New York, as expounded by the high- est tribunal of that state, have, in their ap- plication to this case, come into collision with an act of congress, and deprived a citi- zen of a right to which that act entitles him. Should this collision exist, it will be imma- terial whether those laws were passed in virtue of a concurrent power "to regulate commerce with foreign nations and among the several states," or, in virtue of a power to regulate their domestic trade and police. In one case and the other, the acts of New York must yield to the law of congress; and the decision sustaining the privilege they con- fer, against a right given by a law of the Union, must be ei'roneous. This opinion has been frequently expressed in this court, and is founded as well on the nature of the government as on the words of the constitution. In argument, however, it has been contended that, if a law passed by a state, in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by congress in pursuance of the con- stitution, they affect the subject, and each other, like equal opposing powers. But the framers of our constitution fore- saw this state of things, and provided for it by declaring the supremacy not only of it- self, but of the laws made in pursuance of it. The nullity of any act, inconsistent with the constitution, is produced by the declaration that the constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy 64 THE POWERS OF CONGRESS. on laws and treaties, is to such acts of the state legislatures as do not transcend their poAvers, but, though enacted in the execution of acknowledged state powers, interfere with, or are contrary to the laws of congress, made in pursuance of the constitution', or some treaty made under the authority of the United States. In every such case, the act of congress, or the treaty, is supreme; and the law of the state, though enacted in the exercise of powers not controverted, must j'leld to it. In pursuing this inquiry at the bar, it has been said that the constitution does not con- fer the right of intercoiirse between state and state. That right cierives its so "^e from those laws whose autwcfiy is ackno. dged by civilized man throughout the world. This is true. The constitution found it an exist- ing right, and gave to congress the power to regulate it. In the exercise of this power, congress has passed "An act for enrolling or licensing ships or vessels to be employed in the coasting trade and fisheries, and for reg- ulating the sa_ne." The counsel for the re- spondent contend, that this act does not give the right to ATiil from port to iwrt, but con- fines itself io regulating a preexisting right, so far only as to confer certain privileges on enrolled and licensed vessels, in its exercise. It will at once occur that, when a legisla- ture attaches certain privileges and exemp- tions to the exercise of a right over Avhich its control is absolute, the law must imply a power to exercise the right. The privileges are gone if liie right itself be annihilated. It would be contrary to all reason, and to the course of human affairs, to say that a state is unable to strip a vessel of the par- ticular privileges attendant on the exercise of a right, and yet may annul the right itself; that the state of New York cannot prevent an enrolled and licensed vessel, proceeding from Elizabethtown, in New Jersey, to New Yorlv, from enjoying, in her course and on her entrance into port, all the privileges con- ferred by the act of congress; but can shut her up in her own port, and prohibit alto- gether her entering the waters and ports of another state. To the court it seems very clear that the whole act on the subject of the coasting trade, according to those princi- ples Avliicli govern the construction of stat- utes, implies, unequivocally, an authority to licensed vessels to carry on the coasting trade. But we will proceed briefly to notice those sections which bear more directly on the subject. The first section declares that vessels en- rolled by virtue of a previous law. and cer- tain other vessels, enrolled as described in that act, and having a license in force, as is by the act required, "and no others, shall be deemed ships or vessels of the United States, entitled to the privileges of ships or vessels employed in the coasting trade." This section seems to the court to contain a positive enactment that the vessels it de- scribes shall be entitled to the privileges of ships or vessels employed in the coasting trade. These privileges cannot be separated from the trade, and cannot be enjoyed, un- less the trade may be prosecuted. The grant of the privilege is an idle, empty form, con- veying nothing, unless it convey the right to which the privilege is attached, and in the exercise of which its whole value consists. To construe these words otherwise than as entitling the ships or vessels described, to carry on the coasting trade, would be, we think, to disregard the apparent intent of the act. The 4th section directs the proper officer to grant to a A-essel qiialified to receive it, "a license for carrying on the coasting trade;" and prescril)es its form. After reciting the compliance of the applicant with the previous requisites of the law, the operative words of the instrument are "I^icense is hereby grant- ed for the said steam-boat Bellona, to be em- ployed in carrying on the coasting trade for one year from the date hereof, and no longer." These are not the words of the officer; they are the words of the legislature; and convey as explicitly the authority the act in- tended to give, and operate as effectually, as if they had been inserted in any other part of the act, than in the lirense itself. The word "license," means permission, or authority; and a license to do any particular thing, is a permission or authority to do that thing; and if granted by a person having power to grant it. transfers to the grantee the right to do whatever it purports to authorize. It certainly transfers to him all the right which the grantor can transfer, to do what is within the terms of the license. Would the validity or effect of such an in- strument be questioned by the respondent, if executed by persons claiming regularly under the laws of New York? The license must be understood to be what it purports to be, a legislative authority to the steam-boat Bellona, "to be employed in carrying on the coasting trade, for one year from this date." It has been denied that these words author- ize a voyage fi-om New Jersey to New York. It is true, that no ports are specified; but it is equally true, that the words used are per- fectly intelligible, and do confer such au- thority as unquestionably, as if the ports had been mentioned. Tlie coasting trade is a term well understood. The law has defined it; and all know its meaning perfectly. The act describes, with great minuteness, the va- rious opei'ations of a vessel engaged in it; and it cannot, we think, be doubted, that a voyage from New Jersey to New York, is one of those operations. Notwithstanding the decided language of the license, it has also been maintained, that it gives no right to trade; and that its sole purpose is to confer the American character. The answer given to this argument, that REGULATION OF COMMERCE. the American character is conferred bj^ the enrolment, and not by tlie license, is, we think, founded too clearly in the words of the law, to require the support of any addi- tional observations. The enrolment of ves- sels designed for the coasting trade, corre- sponds precisely with the registration of ves- sels designed for the foreign trade, and re- quires every circumstance wiiich can consti- tute tlie American cliaracter. The license can be granted only to vessels already enrolled, if they be of the burden of twenty tons and upwards; and requires no circumstance es- sential to the American character. The ob- ject of the license, then, cannot be to ascer- tain the character of the vessel, but to do what it professes to do, that is, to give per- mission to a vessel already proved by her enrolment to be American, to carry on the coasting trade. But if the license be a permit to carry on the coasting trade, the respondent denies that these boats were engaged in that trade, or that the decree xmder consideration has restrained them from prosecuting it. The boats of the appellant were, we are told, em- ployed in tlie transportation of passengers; and this is no part of that commerce which congress may regulate. If, as our whole course of legislation on this subject shows, the power of congress has been universally understood in America, to comprehend navigation, it is a very persua- sive, if not a conclusive argument, to prove that the construction is correct; and if it be correct, no clear distinction is perceived be- tween the power to regulate vessels employ- ed in transporting men for hire, and proper- ty for hire. The subject is transferred to congress, and no exception to the grant can be admitted, which is not proved by the words or the nature of the thing. A coasting vessel employed in the transportation of pas- sengers, is as much a portion of the Ameri- can marine, as one employed in the transpor- tation of a cargo; and no reason is perceived why such vessel should be withdrawn from the regulating power of that government, which has been thought best fitted for the purpose generally. The provisions of the law respecting native seamen, and respecting ownership, are as applicable to vessels carry- ing men, as to vessels carrying manufactures; and no reason is perceived Avhy the power over the subject should not be placed in the same hands. The argument urged at the bar, rests on the foundation that the power of congress does not extend to navigation, as a branch of comnierce, and can onlj^ be ap- plied to that subject incidentally and occa- sionally. But if that foundation be removed, we must show some plain, intelligible dis- tinction, supported by the constitution, or by reason, for discriminating between the pow- er of congress over vessels employed in navi- gating the same seas. We can perceive no such distinction. If we refer to the constitution, the infer- SMITH, CONST. LA W — 5 ence to be drawn from it is rather against the distinction. Tlie section which restrains congress from prohibiting the migration or importation of such persons as any of the states may think proper to admit, until the year 1808, has always been considered as an exception from the power to regulate com- merce, and certainly seems to class migration with importation. Migration applies as ap- propriately to voluntary, as importation does to involuntary, arriA^als; and so fur as an ex- ception from a power proves its existence, this section proves that the power to regulate commerce applies equally to the regulation of vessels employed in transporting men, who pass from place to place voluntarily, and to those who pass invohmtarily. If the power reside in congress, as a por- tion of the general grant to regulate com- merce, then acts applying that power to ves- sels generally, must be construed as com- prehending all vessels. If none appear to be excluded by the language of the act, none can be excluded by construction. Vessels have always been employed, to a greater or less extent, in the transportation of passen- gers, and have never been supposed to be, on that account, withdrawn from the control or protection of congress. Packets which ply along the coast, as well as those which make voyages between Europe and America, consider the transportation of passengers as an important part of their business. Yet it has never been suspected that the general laws of navigation did not apply to them. The Duty Act, §§ 23, 46 (1 Stat. 644, 661), contains provisions respecting passengers, and shov>'S that vessels which transport them have the same rights, and must perform the same duties, with other vessels. They are governed by the general laws of navigation. In the progress of things, this seems to have grown into a particular employment, and to have attracted the particular atten- tion of government. Congress was no longer satisfied with comprehending vessels enga- ged specially in this business, within those provisions which were intended for vessels generally; and on the 2d of March, 1819, passed "an act regulating passenger ships and vessels." 3 Stat. 488. This wise and humane law provides for the safety and com- fort of passengers, and for the communica- tion of every thing concerning them which may interest the government, to the depart- ment of state, but makes no provision con- cerning the entry of the vessel, or her con- duct in the waters of the United States. This, we think, shows conclusively tlie sense of congress, (if indeed, any evidence to that point could be required,) that tlie pre-exist- ing regulations comprehended passenger ships among others; and in prescribing the same duties, the legislature must have considered them as possessing the same rights. If, then, it were even true, that the Bellona and the Stoudinger were employed exclusive- ly in the conveyance of passengers between 66 THE POWERS OF CONGRESS. Xew York and New Jersey, it would not fol- low that this occupation did not constitute a pai-t of the coasting- trade of the United States, and was not protected by the license annexed to the answer. But we cannot per- ceive liow the occupation of these vessels can be drawn into question, in the case before the couit. The laws of New York, which {jrant the exclusive privilege set up by the respondent, take no notice of the employ- ment of vessels, and relate only to the prin- ciple by which they are propelled. Those laws do not inquire whether vessels are en- gaged in transporting men or merchandise, but whether they are moved by steam or Wind. If by the former, the Avat(>rs of New York are closed against them, though their cargoes be dutiable goods, which the laws of the United States permit them to enter and deliver in New Y'ork. If by the latter, those waters are free to them, though they should carry passengers only. In conformi- ty with the law, is the bill of the plaintiff in the state court. The bill does not complain that the Bellona and the Stoudinger carry passengers, but that they are moved by steam. This is the injury of which he com- plains, and is the sole injury against the con- tinuance of which he asks relief. The bill does not even allege, specially, that those vessels were employed in the transportation of passengers, but says, generally, that they were employed "in the transportation of pas- sengers, or otherwise." The answer avers, only, that they Avere employed in the coast- ing trade, and insists on the right to carry on any trade authorized by the license. No testimony is taken, and the writ of injunc- tion and decree restrain these licensed ves- sels, not from carrying passengers, but from being moved through the waters of New York by steam, for any purpose whatever. Tlie questions, then, whether the convey- ance of passengers be a part of the coasting trade, and whether a vessel can be protected in that occupation by a coa.sting license, are not, and cannot be, raised in this case. The real and sole question seems to be. whether a steam machine in actual use, deprives a vessel of the privileges conferred by a li- cense. In considering this question, the first idea Which pre.sents itself, is that the laws of congress for the regulation of connnerce, do not look to the pi'inciple by which vessels are moved. That subject is left entirelj' to individual discretion; and. in that vast and complex system of legislative enactment con- cerning it. which end)races every thing that the legislature thought it necessary to notice, there is not, we believe, one word respecting the peculiar principle by which vessels are propelled through the water, except what may be found in a single act (2 Stat. 094), granting a particulai- privilege to steam-boats. With this exception, every act. either pre- scribing duties, or granting privileges, applies to every vessel, whether navigated bv the ] instrumentality of wind or fire, of sails or I machinery. The whole weight of proof, then, j is thrown upon him who would introduce a distinction to which ■ the words of the law ! give no coimtenance. I If the real difference could be admitted to I exist between vessels carrying passengers i and others, it has already been observed ! that there is no fact in this case which can I bring up that question. And, if the occupa- ! lion of steam-boats be a matter of such gen- : eral notoriety that the com't may be presum- i ed to know it, although not specially inform- ! ed by the record, then we deny that the transportation of passengers is their exclu- ; sive occupation. It is a matter of general ■ history, that, in our western waters, their ' principal employment is the transportation of merchandise; and all know, that in the 1 waters of the Atlantic they are frequently so employed. But all inquiry into this subject seems to the court to be put completely at rest, by the j act already mentioned, entitled, "An act for ; the enrolling and licensing of steam-boats." This act authorizes a steam-boat employed, I or intended to be employed, only in a river ; or bay of the United States, owned wholly ! or in part by an alien, resident within the i United States, to be enrolled and licensed as ' if the same belonged to a citizen of the Unit- i ed States. I This act demonstrates the opinion of con- I gress, that steam-boats may be enrolled and i licensed, in common with vessels using sails. i They are, of course, entitled to the same j privileges, and can no more be restrained ! from navigating waters, and entering ports \ Avhich are free to such vessels, than if they i were wafted on their voyage by the winds, I instead of being propelled by the agency of I fire. The one element may be as legitimate- ! ly used as the other, for every commei'cial purpose authorized by the laws of the Union; and the act of a state inhibiting the use of : either to any vessel having a license under ' the act of congi'ess, comes, we think, in di- rect collision with that act. As this decides the cause, it is unnecessary i to enter in an examination of that part of the constitution which emix)wers congress to pro- mote the progress of science and the useful arts. The court is aware that, in stating the train of reasoning by which we have been conducted to this result, much time has been consumed in the attempt to demonstrate propositions which may have been thought axioms. It is felt that the tediousness in- separal)le from the endeavor to i)rove that which is already clear, is imputable to a con- siderable part of this opinion. But it Avas unaAoidable. The conclusion to Avhich we have come depends on a chain of principles Avhich it was necessary to preserve unbroken; and. although some of them Avere thought nearly self-evident, the magnitude of the question, the Aveight of character belonging KEGULATION OF COMMERCE. 67 to those from wliose .iudgment we dissent, and the argument at the bar, demanded that we should assume nothing. Powerful and ingenious minds, taking as postulates that the powers expressly granted to the government of the Union, are to be contracted by construction into the narrowest possible compass, and that the original pow- ers of the states are retained, if any possible construction will retain them, may, by a course of well-digested but refined and meta- physical reasoning founded on these prem- ises, explain away the constitution of our country, and leave it a magnificent structure, indeed, to look at, but totally unfit for use. They may so entangle and perplex the un- derstanding, as to obscure principles which were before thought qinte plain, and induce doubts where, if the mind were to pursue Its own course, none would be perceived. In such a case, it is peculiarly necessary to re- cur to safe and fimdamental principles to sustain those principles, and, when sustain- ed, to make them the tests of the arguments to be examined. 68 THE POWERS OF COXGRESS. PENSACOLA TEL. CO. v. WESTERN UN- ION TEL. CO.i (96 U. S. 1.) Supreme Court of the United States. Oct. Term, 1877. Appeal from circuit court of the United States for the Northern district of Florida. This was a bill filed by the Pensacola Tel- egraph Company against the Western Union Telegraph Company to enjoin the erection of a telegraph line under Act Cong. July 20, ISGG, upon a right of way through counties in the state of Florida in which complainant claimed the exclusive right to erect and maintain telegraph lines by virtue of Act Fla. Dec. 11, 18G6. There was a decree dis- missing the bill, and complainant appealed. Affirmed. Charles W. Jones, for appellant. Perry Belmont, contra. Mr. Chief Justice WAITE delivered the opinion of the court. Congress has power "to regulate commerce with foreign nations and among the several states" (Const, art. 1, § 8, par. 3); and "to establish post-offices and post-roads" (Id., par. 7). The constitution of the United States and the laws made in pm-suance thereof are the supreme law of the land. Article G, par. 2. A law of congress made in pursuance of the constitution suspends or overrides all state statutes with which it is in conflict. Since the case of Gibbons v. Ogden, 9 Wheat. 1, it has never been doubted that commercial intercourse is an element of com- merce which comes within the regulating power of congress. Post-offices and post- roads are established to facilitate the trans- mission of intelligence. Both commerce and the postal service are placed within the pow- er of congress, because, being national in their operation, they should be under the pro- tecting care of the national government. The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the con- stitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing popu- lation and wealth. Tbey were intended for the government of the business to which they relate, at all times and under all circumstan- ces. As they were intrusted to the general government for the good of the nation, it is not only the right, but the duty, of congress to see to it that intercourse among the states ted. Dissenting opinion of Mr. Justice Field omit- and 'the transmission of intelligence are not obsti-ucted or unnecessarily encumbered by state legislation. The electric telegraph marks an epoch in the progress of time. In a little more than a quarter of a century it has changed the hab- its of business, and become one of the neces- sities of commerce. It is indispensable as a means of intercommunication, biit especial- ly is it so in commercial transactions. The statistics of the business before the recent re- duction in rates show that more than eighty per cent of all the messages sent by tele- gi-aph related to commerce. Goods are sold and money paid uixvn telegraphic orders. Contracts are made by telegraphic corre- spondence, cargoes secured, and the move- ment of ships directed. The telegraphic an- nouncement of the markets abroad regulates prices at home, and a prudent merchant rare- ly enters upon an important transaction with- out using the telegraph freely to secure in- formation. It is not only important to the people, but to the government. By means of it the heads of the departments in Washington are kept in close communication with all their various agencies at home and abroad, and can know at almost any hour, by inquiry, what is transpiring anywhere that affects the interest they have in charge. Under such circumstances, it cannot for a moment be doubted that this powerful agency of com- merce and intercommunication comes within the controlling power of congress, certainly as against hostile state legislation. In fact, fi'om the beginning, it seems to have been assumed that congress might aid in develop- ing the system; for the first telegraph line of any considerable extent ever erected was built between Washington and Baltimore, only a little more than thirty years ago, with money appropriated by congress for that pur- pose (5 Stat. 618); and large donations of land and money have since been made to aid in the construction of other lines (12 Stat. 489, 772; 13 Stat. 3G5; 14 Stat. 292). It is not necessary now to inquire whether con- gress may assume the telegraph as part of the postal seniee, and exclude all others from its use. The present case is satisfied, if we find that congress has power, by appropriate legislation, to prevent the states from placing obstructions in the way of its usefulness. The government of the United States, with- in the scope of its powers, operates upon ev- ery foot of territory under its jurisdiction. It legislates for the whole nation, and is not embarrassed by state lines. Its peculiar du- ty is to protect one part of the country from encroachments by another upon the national rights which belong to all. The state of Florida has attempted to con- fer upon a single coii^oration the exclusive right of transmitting intelligence by tele- graph over a j 297-811. As observed by Mr. Jus- tice Story, in his commentaries just cited : "Although movables are for many pur- poses to he deemed tohave no situs except that of the domicile of the owner, yet. this being but a leyal Hction, it yields when- ever it is necessary for the purpose of jus- tice that the actual situs of the thing should be examined. A nation within whose territory any personal property is actually situate has an entire dominion over it while therein, in point of sovereignty and jurisdiction, as it has over immoval)le property situate there." ¥ov the pur- poses of taxation, as has been repeatedly affirmed by this court, i)ersonal property may be separated from its owner; and he may be taxed on its account at the place where it is, although not the place of his own domicile, and even if lie is not a citi- zen or a resident of the state which im- poses the tax. Lane Co. v. Oregon, 7 Wall. 71,77; Railroad Co. v. Pennsvlvania, 15 Wall. 800, 828, :^24, 82S; Railroad Co. v. Peniston, is Wall. 5, 29; Tappan v. Bank, 19 Wall. 490, 499; State Railroad Tax Cases, 92 U. S. 57."), 607. 60s ; Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. Rep. 1091 ; Coe V. Errol, 116 U. S. 517, 524, 6 Sup. Ct. Rep. 475; Marye v. Railroad Co., 127 C S. 117, 128, S Sup." Ct. Rep. 1087. It is equally well settled that there is nothing in the constitution or !aw9 of the United States which prevents a state from taxing i)er- sonal property employed in interstate or fore ;j;n comniercelike otherpersonal prop- erty within its jurisdiction. Delaware Railroad Tax, IS Wall. 200,282; Telegraph Co, V. Texas. 105 U. S. 460, 464; Ferry Co. V. Pennsylvania, 114 U. S. 196, 206, 211,5 Sup. Ct. Reu. S2(); Telegraph Co. v. Attor- ney General, 125 U. S. 580, 549, 8 Sup. Ct. Rep. 961; Marye v. Railroad Co., 127 U. S. 117, 124, K Sup. Ct. Rep. 1037: Lehmp v. Mobile, 127 U. S. 640. 649, S Sup. Ct. Rep. 18S0. Ships or vessels, indeed, engaged in interstate or foreign commerce upon the high seas or other waters which are a common highway, and having their home port, at which they are registered under" the laws of the United States at the dom- icile of their owners, in one state, are not subject to taxation in anothei- state at W'hose ports they incidentally and tempo- rarily touch for the i)urv)ose of delivering or receiving passengers or freight. But that is because they are not, in any prop- er sense, abiding within its limits, and have no continuous presence or actual .s/fw.s within its jurisdiction, and therefore can be taxed only at their legal situs, — their home port, and the doniicile of their own- ers. Hays V. Steam-.Ship Co., 17 How. 596; St. Louis v. Ferry Co., 11 Wall. 423; Morgan v. Parhani, 16 Wall. 471 ; Ferry Co. V. East St. Louis, 107 U. S. 865, 2 Sup. Ct. Rep. 257; Ferry Co. v. Pennsylvania, 114 U. S. 196, 5 Sup. Ct. Rep. S26. Between ships and vessels, having their situs fixed by act of congress, and their course over nav- igable waters, and tcjuching land only in- cidentally and temporarily, and cars or vehicles of any kind, having no situs so fixed, and traversing the land only, the distinction is obvious. As has been said by this court: "C'ommerce on land be- tween the different states is so strikingly dissimilar, in many respects, from com- merce on water, that it is often difficult to regard them in the same aspect in refer- ence to the respective constitutional pow- ers and duties of the state and federal gov- ernments. No doubt commerce by water was principally in the minds of those who framed and ad(Ji>ted the constitution, al- though both its language and spirit em- brace commerce by land as well. Mari- time transportation requires no artificial road-way. Nature has prepared to hand that portion of the instrumentality em- ployed. The navigable waters of the earth are recognized public highwaj's of trade and intercourse. No franchise is needed to enable the navigator to use them. Again, the vehicles of commerce by water being instrumentsof intercommuni- cation with other nations, the regulation of them is assumed by the national legisla- ture. So that state interference with transportation by water, and especially by sea, is at once clearly marked and dis- tinctly discernible. But it is different with transportation bv land." Railroad Co. v. Mar;yland, 21 Wall. 4.j6, 470. In Ferry Co. v. Pennsylvania, on which the plaintiff in error much relies, the New Jersey corporation taxed by the state of Pennsylvania, under one of the statutes now in question, had no property in Penn- sylvania except a lease of a wharf at which its steam-boats touched to land and receive passengers and fi-eight carried aci'oss the Delaware river ; and the differ- ence in the facts of that case and of this and in the rules applicable was clearly in- dicated in the opinion of the coui-t as fol- lows: "It is true that the jiroperty of cor- porations engaged in foreign or interstate commerce, as well as the property of cor- porations engaged in other business, is REGULATION OF COMMERCE. 73 subject to taxation, provided, always, it be within the luvisdiction of the state." 114 U. S. 206, 5 Sup. Ct. Rep. S29. "While it is conceded that the property in a state belonging to a foreign corporation en- gaged in foreign or interstate commerce may be taxed equally with like property of a domestic corporation engaged in that business, we are clear that a tax or other burden imposed on the property of either corporation because it is used to carry on that commerce, or upon the transporta- tion of persons or projjcrty, or for the navigation of the public waters over which the transportation is made, is in- valid and void as an interference with and an obstruction of the power of congress in the I'egulation of such commei'ce. " 114 U. »S. 211, .5 Sup. Ct. Rep. S82, Much reliance is also placed by the plaintiff in error up- on the cases in which this couvt has de- cided that citizens or coi'porations of one state cannot be taxed by another state for a license or privilege to carry on inter- state or foreign commerce within its lim- its. But in each of those cases the tax was not upon the pro))erty employed in the business, but upon the right to carry on the business at all, and was therefore held to impose a direct burden upon the conimerce itself. Moran v. New Orleans, 112 U. S. 69, 74, 5 Sup. Ct. Rep. 88; Pickard v. Car Co., 117 U. S. 34, 4:j. 6 Sup. Ct. Rep. €3.5; Robbins v. Taxing Dist., 120 U. S. 489, 497, 7 Sup. Ct. Rep. 592; Leloup v. Mobile, 127 U. S. 640, 644, 8 Sup. Ct. Rep. 1380. For the same reason, a tax upon the gross receipts derived from the transportation of pas- sengers and goods between one state and other states or foreign nations has been held to be invalid. Fargo v. Michigan, 121 U. S. 230, 7 Sup. Ct. Rep. 857; Steam-Ship €o. V. Pennsylvania, 122 U. S. 326, 7 Sup Ct. Rep. 1118. The tax now in question is not a license tax or a privilege tax; it is not a tax on business or occupation ; it is not a tax on or because of the transportation or the right of transit of persons or property through the state to other states or coun- tries. The tax is imposed equally on cor- porations doing business within the state, whether domestic or foreign, and whether engaged in interstate commerce or not. The tax on tlie capital of the corporation on account of its property within the state is, in substance and effect, a tax on that property. Ferrj' Co. v. Pennsvl- vauia, 114 U. S. 196, 209, 5 Sup. Ct. Rep. S2d; Telegraph Co. v. Attorney Ceneral, 125 U. S. 580, .552, 8 Sup. Ct. Rep.' 961. This is not only admitted, but insisted on, by the plaintiff in error. The cars of this company within the state of Pennsylvania are emplo^-ed in in- terstate commerce; but their being so em- ployed does not exempt them from taxa- tion by the state; and the state has not taxed them because of their being so em- l.)lo3-ed, but because of their being within its territory and jurisdiction. The cars were continuously and permanently em- ployed in going to and fro upon cei'tain routes of travel. If they had never passed beyond the limits of Pennsylvania, it could not be doubted that the state could tax them, like other property within its borders, notwithstanding they were em- ployed in interstate commerce. The fact that, instead of stopping at the state boundary, they cross that boundary in going out and coming back, cannot affect the power of the state to levy a tax upon them. The state, having the right, for the purposes of taxation, to tax any personal property found within its jurisdiction, without regard to the placeof theowner's domicile, could tax the specific cars which at a given moment were within itsbor- I'lp'^s. TLe route over which the cars travel extending beyond the limits of the state, particular cars may not remain within the state; but the company has at all times substantiallj' the same number of cars within the state, and continuously and constantly uses there a portion of it5 propertj' ; and it is distinctly- found, as matter of fact, that the company continu- ously, throughout the periods for which these taxes were levied, carried on bus- iness in Pennsylvania, and had about 100 cars within the state. The mode which the state of Pennsyl- vania adopted to ascertain the proportion of the company's property upon which it shcndd be taxed in that state was by taking as a basis of assessment such proportion of the capital stock of the company as the number of miles over which it ran cars within the state bore to the whole number of miles in that and other states over which its cars were run. This was a just andeiiuitable method of assessment; and, if it were adopted by all the states through which these cars ran, the company would be assessed upon the whole value of its capital stock, and no more. The validity' of this mode of apportioning such a tax is sustained by several decisif)ns of this court in cases which came up from the circuit courts of the United States, and in which, therefore, the jurisdiction of this court ex- tended to the determination of the whole case, and was not limited, as upon writs of error to the state courts, to questions under the constitution and laws of the United States. In the State Railroad Tax Cases, 92 U. S. .575, it was adjudged that a statute of Illinois, by which a tax on the entire tax- able property of a railroad corporation, including its rolling stock, capital, and franchise, was assessed by the state board of equalization, and was collected in each municipality in proportion to the length of the road within it, was lawful, and not in conflict with the constitution of the state; and Mr. Justice Milleh, delivering judgment, said: "Another fibjection to the system of taxation by the state is that the rolling stock, capital stock, and fran- chise are personal property, and that this, with all other personal property, has a local situs at the principal place of busi- ness (»f the corporation, and can be taxed by no other county, city, or town but the one where it is so situated. This objec- tion is based upon the general rule of law that personal property, as to its situs, follows the domicile of its owner. It may be doubted vei-y reasonably whether such a rule can be applied to a railroad corpo- ration as between the different localities embraced by its line of road. But, after 74 THE P0\\ ERS OF CONGRESS. all, the rule is merely the law of the state which recognizes it; and when it is called into operation as to property located in one state and owned by a resident of an- other, it is a rule of comity in the former state rather than an absolute principle in all cases. Green v. Van Buskirk, 5 Wall. 312. Like all other laws of a state, it is therefore subject to legislative repeal, modification, or limitation; and wiien the legislature of Illinois declared that it should not prevail in assessing perscuial property of railroad companies for taxa- tion, it simply exercised an ordinary func- tion of legislation. " 92 U. S. «()7, (i()"s. "It is further objected that the railroad track, capital stock, and franchise is not assessed in each county where it lies, according to its value there, but according to an aggre- gate value of the whole, on Avhich each county, city, and town collects taxes ac- cording t(j the length of the track within its limits." "It may well be doubted whether any better mode of determining the value of t!iat portion of the track within any one county has been devised than to ascertain the value of the whole road, and apportion the value within the county by its relative length to the whole." "This court has expressly held in two cases, wheie the road of a corpo- ration ran through different states, that a tax upon the inconje or franchise of the road was pro])erly ap()ortioned bj- taking the wholeincome or value of thefranchise, and the length of the road within each state, as the basis of taxatic^n. Delaware Railroad Tax, IS Wall. 206; Railroad Co. V. Pennsylvania, 21 Wall. 492." 92 U. 8. 60S, 611. So in Telegiai)h Co. v. Attorney General, 125 U. S. .>J0, S Sup. Ct. Rep. 961, this ctnirt upheld tlie validity of a tax im- l)osed by the state of Massachusetts upon the capital stock of a telegrai)h company, on account of property owned and used by it within the state, taking as the basis of assessment such proj)ortion of the value of its capital stock as the leugtli of its lines within the state bore to tiieir entire lengtli throughout the country. Even more in point is the case of Marve V. Railroad Co., 127 U. S. 117, S Sup. Ct. Rep. 10;J7. in which the question was wliethei- a railroad company incorporated by the state of Maryland, and no part of whose own railroad was within the state of Virginia, was taxable under general laws oi Virginia uproperty, and the railroad company clu^oses so to do, it would certainly be competent and legiti- mate for the state to impcjse upon such property, thus used and employed, its fair share of the burdens of taxation imi-osed upon similar property used in the like way by its own citizens. And such a tax might be properly assessed and collected in cases like the present, where the specific and individual items of property so used and employed were not continuously the same, but were constantly changing, ac- cording to the exigencies of the business. In such cases the tax might be fixed by an appraisement and valuation of the aver- age anioimt of the pi-operty thus habitual- ly used, and collected by distraint upon any portion that might at any time be found. Of course, the lawfulness of a tax upon vehicles of transportation used by common carriers might have to be consid- ered in particular instances with reference to Its operation as a regulation of com- merce among the states, but the mere fact that they were employed as vehicles of transportation in the interchange of in- terstate commerce w(juld not render their taxation invalid." 127 U. S. 123, 124, 8 Sjip. Ct. Rep. 1039, 1040. For these rea- sons, and upon these authorities, the court is of opinion that the tax in ques- tion is constitutional and valid. The re- sult of holding otherwise would be that, if all the states should concur in abandon- ing the legal fiction that personal proper- ty has its situs at the owner's domicile, and in adopting the s.vstem of taxing it at the place at which it is used and by whose laws it is protected, i)roperty employed in any business requiring continuous and constant movement from one state to an- other would escape taxation altogether. Judgment affirmed. BuowN, J., not having been a member of the court when this case was argued, took no part in its decision. Mr. Justice Bk.adt.kv. J*Ir. Justice Field, and Mr. Justice H.xri.an dissenting. REGULATION OY COMMERCE. 7& ROBBINS V. TAXING DISTRICT OF SHELBY CO., TENNESSBE.i (7 Sup. Ct. 592, 120 U. S. 489.) Supreme Court of the United States. March 7, 1887. In eiTor to the supreme court of the state of Tennessee. Luke E. Wright (P. T. Edmondson ayrs with him on the brief), for plaintiff in error. S. P. Wallier, for defendant in error. BRADLEY, J. This case originated in the following manner: Sabine Bobbins, the plaintiff in error, in February, 1884, was en- gaged at the city of Memphis, in the state of Tennessee, in soliciting the sale of goods for the firm of Rose, Robbing & Co., of Cincin- nati, in the state of Ohio, dealers in paper and other articles of stationery, and exhibit- ed samples for the puiTpose of effecting such sales, — an employment usually denominated as that of a "drummer." There was in force at that time a statute of Tennessee, re- lating to the subject of taxation in the tax- ing districts of the state, applicable, however, only to the taxing districts of Shelby county, (formerly the city of Memphis,) by which it was enacted, amongst other things, that "all drummers, and all persons not having a reg- ular licensed house of business in the tax- ing district, offering for sale or selling goods, wares, or merchandise therein, by sample, shall, be required to pay to the county trus- tee the sum of ten dollars ($10) per week, or twenty-five dollars per month, for such priv- ilege; and no license shall be issued for a longer period than three months." Act 1881, c. 96, § 16. The business of selling by sam- ple, and nearly 60 other occupations, had been by law declared to be privileges, and were taxed as such; and it was made a mis- demeanor, punishable by a fine of not less than five, nor more than fifty, dollars, to ex- ercise any of such occupations without hav- ing first paid the tax, or obtained a license required therefor. Under this law, Robbins, who had not paid the tax nor taken a li- cense, was prosecuted, convicted, and sen- tenced to pay a fine of $10, together with the state and county tax, and costs; and, on ap- peal to the supreme court of the state, the judgment was affiiTued. This writ of error is brought to review the judgment of the su- preme court, on the ground that the law im- posing the tax was repugnant to that clause of the constitution of the United States which declares that congress shall have pow- er to regulate commerce among the several states. On the trial of the cause in the inferior court, a jury being waived, the following agreed statement of facts was submitted to the court, to wit: "Sabine Robbins is a citi- zen and resident of Cincinnati, Ohio, and on the day of -, 1884, was engaged in 1 Dissenting opinion of Mr. Chief Justice Waite is omitted. the biTsiness of drumming in the taxing dis- trict of Shelby county, Tennessee, — i. e., so- liciting trade, by the use of samples, for the liouse or firm for which he worked as drum- mer; said firm being the firm of 'Rose, Rob- bins & Co.,' doing business in Cincinnati, and all the members of said firm being citizens and residents of Cincinnati. Ohio. While en- gaged in the act of drumming for said firm, and for the claimed offense of not having taken out the required license for doing said business, the defendant, Sabine Robbins, was arrested by one of the Memphis or taxing district police force and carried before the Hon. D. P. Hadden, president of the taxing district, and fined for the offense of drum- ming without a license. It is admitted the firm of 'Rose, Robbins & Co.' are engaged in tlie selling of paper, writing materials, and such articles as are used in the book-stores of the taxing district of Shelby county, and that it was a line of such articles for the sale of which the said defendant herein was drumming at the time of his arrest." This was all the evidence, and thereupon the court rendered judgment against the defendant, to which he excepted, and a bill of exceptions was taken. The principal question argued before the supreme court of Tennessee was as to the constitutionality of the act which imposed the tax on drummers; and the court decided that it was constitutional and valid. That is the question before us, and it is one of great importance to the people of the United States, both as I'espects their business inter- ests and their constitutional rights. It is presented in a nutshell, and does not, at this day, require for its solution any great elabo- ration of argument or review of authorities. Certain principles have been already estab- lished by the decisions of this court, which will conduct us to a satisfactory decision. Among those principles are the following: 1. The constitution of the United States having given to congress the power to regu- late commerce, not only with foreign nations, but among the several states, that power is necessarily exclusive whenever the subjects of it are national in their character, or admit only of one uniform system, or plan of regu- lation. This was decided in the case of Coo- ley V. Board of Wardens of the Port of Phila- delphia, 12 How. 299, 319, and was virtually involved in the case of Gibbons v. Ogden, 9 Wheat. 1, and has been confirmed in many subsequent cases; amongst others, in Brown V. Maryland, 12 Wheat. 419; Passenger Cas- es, 7 How. 283; Crandall v. Nevada, 6 Wall. 35, 42; Ward v. Maryland, 12 Wall. 418, 430; State Freight Tax Cases, 15 Wall. 232, 279; Henderson v. Mayor of New York, 92 U. S. 259, 272; Railroad Co. v. Husen, 95 U. S. 465, 469; Mobile v. Kimball, 102 U. S. 691, 697; Gloucester Ferrj^ Co. v. Pennsylvania, 114 U. S. 196, 203, 5 Sup. Ct. 826; Wabash R. Co. V. Illinois, 118 U. S. 557, 7 Sup. Ct. 4, 76 THE POWERS OF CONGRESS. 2. Another established doctrine of this court is that, wliere the power of congress to regulate is exclusive, the failure of congress to make express regulations indicates its will that the subject shall be left free from any restrictions or impositions; and any regula- tion of the subject by the states, except in matters of local concern only, as hereafter mentioned, is repugnant to such freedom. This was held by Mr. Justice Johnson in Gibbons v. Ogden, 9 Wheat. 1, 222; by Mr. Justice (xrier in the Passenger Cases, 7 How. 283, 4G2; and has been affirmed in subse- quent cases. State Freight Tax Cases, 15 Wall. 232. 279; Railroad Co. v. Husen, 95 U. S. 4G5, 4G9; Welton v. Missouri, 91 U. S. 275. 282; County of Mobile v. Kimball, 102 U. S. 091, G97; Brown v. Houston, 114 U. S. 622, G31, 5 Sup. Ct. 1091; Walling v. Michi- gan, 116 U. S. 446, 455, 6 Sup. Ct. 4.54; Pick- ard V. Pullman Palace Car Co.. 117 U. S. 34, 6 Sup. Ct. 635; Wabash R. Co. v. Illinois, 118 U. S. 557, 7 Sup. Ct. 4. 3. It is also an established principle, as al- ready indicated, that the only way in which oommerce between the states can be legiti- mately affected by state laws is when, by virtue of its police power, and its jurisdic- tion over persons and property within its limits, a state pi'ovides for the security of the lives, limbs, health, and comfort of persons and the protection of property, or when it does those things which may otherwise inci- dentally affect commerce; such as the estab- lishment and regulation of highways, canals, railroads, wharves, ferries, and other com- mercial facilities; the passage of inspection laws to secure the due quality and measure of products and commo4. Yet the court unanimously In^ld that the statute of 1888 was constitutional, and tliat the action of the collector in refusing him permission to land was lawful; and. after the passages already quoted, said: "The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the Uniter aliens residing in the United States for a shorter or longer time, are entitknl, so long as they are permitted by the government of the United States to remain in the country, to the safeguards of the constitution, and to POLICE POWER VESTED IK CONGRESS. 89 the protection of the laws, in regard to their rights of pei'son and of property, and to their civil and criminal responsibility. But they continue to be aliens, having talien no steps towards becoming citizens, and incapable of l>ecoming such under the naturalization laws; and therefore remain subject to the power of congress to expel them, or to order them to be removed and deported from the countiy, whenever, in its judgment, the'r removal is necessary or expedient for the public in- terest. Nothing inconsistent with these views was ■decided or suggested by the court in Chy Lung v. Freeman, 92 U. S. 275, or in Yick Wo V. Hopkins. 118 U'. S. 356, 6 Sup. Ct. Hep. 1064, cited for the appellants. In Chy Lung v. Freeman, a statute of the state of California, restricting the immigra- tion of Chinese persons, was held to be un- constitutional and void, because it contra- vened the grant in the constitutional congress of the power to regulate commerce with for- eign nations. In Yick Wo v. Hopkins the point decided was that the fourteenth amendment of the constitution of the United States, forbidding a.ny state to deprive any person of life, liberty, or property witnout due process of law, or to deny to any person within its ju- risdiction the equal protection of tiie laws, was violated by a municipal ordinance of San Francisco, which conferred upon the board of supervisors arbitrary power, with- out regard to competency of persons or to fitness of places, to grant or refuse licenses to carry on public laundries, and which was executed by the supervisors by refusing licenses to all Chinese residents, and granting them to other persons under like circum- stances. The question there was of the power of a state over aliens continuing to reside within its jurisdiction, not of the pow- •er of the Unitetl States to put an end to their residence in the country. The act of May 5, 1892, c. 60, is entitled ^'An act to prohibit the coming of Cliinese persons into the United States;" and pro- vides, in section 1, that "all laws now in force, prohibiting and regulating the coming into this country of Chinese persons and per- sons of Chinese descent, are hereby continii- ed in force for a pei'iod of ten years from the passage of this act." The rest of the act (laying aside, as imma- terial, section 5, relating to an application for a writ of habeas corpus "by a Chinese person seeking to land in the united States, to whom that privilege has been denied") deals with two classes of Chinese persons: First, those "not entitled to be or remain in the United States;" and, second, those "en- titled to remain in the United States." These words of description neither confer nor take away any right, but simply des- ignate the Chinese persons who were not, or who were, authorized or permitted to re- jnain in the United States under the laws and treaties existing at the time of the pas- sage of this act, but subject, nevertheless, to the power of the United States, absolutely or conditionally, to withdraw the permission, and to terminate the atithority to remain. Sections 2-4 concern Chinese "not lawfully entitled to be or remain in the United States," and provide that, after trial before a justice, judge, or commissioner, a "Chinese person, or person of Chinese descent, con- victed and adjudged to be not lawfully en- titled to be or remain in the United States," shall be imprisoned at hard labor for not more than a year, and be afterwards removed to China, or other country of which he ap- pears to be a citizen or subject. The subsequent sections relate to Chinese laborers "entitled to remain in the United States" under previous laws. Sections 6 and 7 are the only sections which have any bear- ing on the cases before us. and the only ones, thereiore, the constniction or effect of which need now be considered. The manifest objects of these sections are to provide a system of registration and iden- tification of such Chinese laborers, to require them to obtain certificates of residence, and, ir they do not do so within a year, to have them deported from the United States. Section 6, in the first place, provides that "it shall be the duty of all Chinese laborers, within the limits of the United States at the time of the passage of this act, and who are entitled to remain in the United States, to apply to the collector of internal revenue of their respective districts, within one year after the passage of this act, for a certificate of residence." This provision, by making it the duty of the Chinese laborer to apply to the collector of internal revenue of the dis- trict for a certificate, necessarily implies a cc rrelative duty of the collector to grant him a certificate, upon due proof of the requisite facts. AVhat this proof shall be is not de- fined in tlxe statute, but is committed to the supervision of the secretary of the treasury by section 7, which directs him to make such rules and regulations as may be necessary for tlie efficient execution of the act, to pre- scribe the necessary forms, and to make such provisions that certificates may be procured in localities convenient to the applicants, and without charge to them; and the secretary of the treasury has, by such rules and regu- lations, provided that the fact of residence shall be proved by "at least one credible wit- ness of good character," or, in case of neces- sity, by other proof. The statute and the regulations, in order to make sure that every such Cuiuese laborer may have a certificate, in tlie nature of a passport, with which he may go into any part of the United States, and that the United States may preserve a record of all stich certificates issued, direct that a duplicate of each certificate shall be recorded in the otfice of the collector who granted it, and may be issued to the laborer upon proof of loss or destruction of his original certifl- 90 THE POLICE POWER. qate. There can be no doubt of the validity of these provisions and regulations, unless they are invalidated by the other provisions of section (>. This section proceeds to enact that any Chinese laborer within the limits of the Unit- ed States, who shall neglect, fail, or refuse to apply for a certificate of residence within the year, or who shall afterwards be found within the jurisdiction of the United States without such a certificate, "shall be deemed and adjudged to be imlawfuUy witliin the United States." The meaning of this clause, as shown by those which follow, is not that this fact shall thereupon be held to be conclu- sively established against him, but only that the want of a certificate shall be prima facie evidence that he is not entitled to remain in the United States; for the section goes on to direct that he "may be arrested by any cust toms official, collector of internal revenue or his deputies. United States marshal or his deputies, and taken before a United States judge;"' and that it shall thereupon be the duty of the judge to order that the laborer "be deported from the United States" to China, (or to any other country which he is a citizen or subject of, and which does not de- maud any tax as a condition of his removal to it,) "unless he shall establish clearly, to the satisfaction of said judge, that by reason of accident, siclvuess, or other unavoidable cause lie has been unable to procure his cer- tificate, and to the satisfaction of the court, and by at least one credible white witness, that he was a resident of the United States at the time of the passage of this act; and if, up- on the hearing, it shall appear tliat he is so en- titled to a certificate, it sliall be granted upon his paying the cost. Should it appear that said Chinaman had prociired a certificate which has been lost or destroyed, he shall be detained, and judgment suspended a reason- able time, to enable him to procure a dupli- cate from the olRcer granting it; and in such CJises the cost of said arrest and trial shall be in the discretion of the court." For the reasons stated in the earlier part of this opinion, congress, mider the power to exclude or expel aliens, might have di- I'ected any Chinese laborer found in the Unit- ed States without a certificate of residence to be removed oxit of the counti-y by execu- tive officers, without judicial trial or exami- nation, just as it might have authorized such officers absolutely to prevent his entrance into the country. But congress has not un- dertaken to do this. The effect of the provisions of section 6 of the act of 1892 is that, if a Chinese laborer, after the opportunity afforded him to obtain a certificate of residence within a year, at a convenient place, and without cost, is foimd without such a certificate, he shall be so far presumed to be not entitled to I'emain within the United States that an officer of the cus- toms, or a collector of intei*nal revenue, or a marshal, or a deputy of either, may arrest him, not with a view to imprisonment or punishment, or to his immediate deportation without further inciuiry, but in order to take him before a judge, for the purpose of a ju- dicial hearing and determination of the only facts wl)icb. midor the act of cngress, can have a material bearing upon the question, whether he shall be sent out of the country ,^ or be permitted to remain. The powers and duties of the executive officers named being ordinarily limited to their own districts, the reasonable inference is that they must take him before a judge within the same judicial district; and such was the course pursued in the cases before us. The designation of the judge, in general terms, as "a United States judge," is an apt and sufficient description of a judge of a court of the United States, and is equivalent to or synonymous witli the designation, in otliier statutes, of the judges authorized to issue writs of habeas corpus, or warrants to arrest persons accused of crime. Rev. St. §§ 752, 1014. When, in the form prescribed by law, the executive officer, acting in behalf of the United States, brings the Chinese laborer bofoi'e the judge, in order that he may be heard, and the facts upon which depends his right to remain in the country be decided, a case is duly submitted to the judicial power; for here are all the elements of a civil case, — a complainant, a defendant, and a judge, — actor, reus, et judex. 3 Bl. Comm. 25; Osborn v. Bank, 9 Wheat. 738, 819. No formal complaint or pleadings are required, and the want of them does not affect the au- thority of the judge or the validity of the statute. If no evidence is offered by the Chinaman, the judge makes the order of deportation as upon a default. If he produces competent evidence to explain the fact of his not hav- ing a certificate, it must be considered by the judge; and if he thereupon appears to be entitled to a certificate, it is to be granted to him. If he proves that the collector of internal revenue has unlawfully refused to give him a certificate, he proves an "una- voidable cause," within the meaning of the act. for not procuring one. If he proves that he had procured a certificate, which has been lost or destroyed, he is to be allowed a reasonable time to procure a duplicate there- of. The provision which puts the burden of proof upon him of rebutting the presump- tion arising from his having no certificate, as well as the requirement of proof "by at least one credible white witness that he was a resident of the United States at the time of the passage of this act," is within the acknowledged power of every legislature to prescribe tlie evidence which shall be re- ceived, an ' the effect of that evidence, in the courts of its own government. Ogden v. Saunders, 12 Wheat. 213, 262, 349; Pillow v. POLICE POWER VESTED I^vT CONGRESS. 91 Roberts, 13 How. 472, 476; Cliquofs Cham- pagne, 3 Wall. 114, 143; Ex parte Fisk, 113 U. S. 713, 721, 5 Sup. Ct. Rep. 724; Holmes V. Hunt, 122 Mass. 505, 516-519. The com- petency of all witnesses, without regard to their color, to testify in the courts of the United States, rests on acts of congress, which congress may, at its discretion, mod- ify or repeal. Rev. St. §§ 858, 1977. The reason for requiring a Chinese alien, claim- ing the privilege of remaining in the United States, to prove the fact of his residence here at the time of the passage of the act "by at least one credible white witness," may have been tho experience of congress, as mentioned by Mr. Justice Field in Chae Chan Ping's Case, that the enforcement of former acts, under which the testimony of Chinese persons was admitted to prove similar facts, "was attended with great em- barrassment, from the suspicious nature, in many instances, of the testimony oifered to establish the residence of the parties, aris- ing from the loose notions entertained by the witnesses of the obligation of an oath." 530 U. S. 598, 9 Sup. Ct. Rep. 627. And this requirement, not allowing such a fact to be pi'oved solely by the testimony of aliens in a like situation, or of the same race, is quite analogous to the provision, which has ex- isted for 77 years in the naturalization laws, by which aliens applying for naturalization must prove their residence within the hmits and under the jurisdiction of the United States, for five years next preceding, "by the oath or affirmation of citizens of the United States." Acts March 22, 1816, c. 32, § 2, (3 Stat. 259;) May 24, 1828, c. 116, § 2, (4 Stat. 311;) Rev. St. § 2165, cl. 6; 2 Kent, Comm. 65. The proceeding before a United States judge, as provided for in section 6 of the act of 1892, is in no proper sense a trial and sentence for a crime or offense. It is simply the ascertainment, by appropriate and law- ful means, of the fact whether the condi- tions exist upon which congress has enacted that an alien of this class may remain with- in the country. The order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not compUed with the conditions upon the pex'- formance of which the government of the nation, acting within its constitutional au- thority, and through the proper departments, has determined that his continuing to re- side here shall depend. He has not, there- fore, been deprived of life, liberty, or prop- erty without due process of law; and the provisions of the constitution, securing the right of trial by jury, and prohibiting un- reasonable searches and seizures and cruel and unusual punishments, have no applica- tion. The question whether, and upon what con- ditions, these aliens shall be permitted to remain within the United States being one to be determined by the political depart- ments of the government, the judicial de- partment cannot properly express an opin- ion upon the wisdom, the policy, or the jus- tice of the measures enacted by congress in the exercise of the powers confided to it by the constitution over this subject. The three cases now before us do not differ from one another in any material par- ticular. In the first case the petitioner had wholly neglected, failed, and refused to apply to the collector of internal revenue for a cer- tificate of residence, and, being found with- out such a certificate after a year from the passage of the act of 1892. was arrested by the United States marshal, with the pur- pose, as the return states, of taking him be- fore a United States judge within the dis- trict; and thereupon, before any further pro- ceeding, sued out a writ of habeas corpus. In the second case the petitioner had like- wise neglected, failed, and refused to apply to the collector of internal revenue for a cer- tificate of residence, and, being found with- out one, was arrested by the marshal, and taken before the district judge of the United States, who ordered him to be remanded to the custody of the marshal, and to be de- ported from the United States, in accordance with the provisions of the act. The allega- tion in the petition that the judge's order was made "without any hearing of any kind" is shown to be untrue by the recital in the order itself (a copy of which is annexed to and made part of the petition) that he had failed to clearly establish to the judge's sat- isfaction that by reason of accident, sickness, or other unavoidable cause he had been un- able to procure a certificate, or that he had procured one, and it had been lost or de- stroyed. In the tlurd case the petitioner had, witlfin the year, applied to a collector of internal revenue for a certificate of residence, and had been refused it, because he produced, ana could produce, none but Chinese wit- nesses, to prove the residence necessary to entitle him to a certificate. Being found without a certificate of residence, he was ar- rested by the marshal, and taken before the United States district judge, and established to the satisfaction of the judge that, because of the collector's refusal to give him a cer- tificate of residence, he Avas without one by an unavoidable cause; and also proved, bj'' a Chinese witness only, that he was a resi- dent of the United States at the time of the passage of the act of 1892. Thereupon the judge ordered him to be remanded to the custody of the marshal, and to be deported from the United States, as provided in that act. It would seem that the collector of in- ternal revenue, when applied to for a certiti- ^2 THE POLICE POWER. Cftte, might properly decline to find the requisite fact of residence upon testimony which, by an express provision of the act, would be insufficient to prove that fact at a hearing before the judge. But if the col- lector might have received and acted upon .sucli testimony, and did, upon any ground, unjust itiably refuse a certificate of residence, the only ri>medy of the applicant was to prove by competent and sufiicient evidence at the hearing before the judge the facts requisite to entitle him to a certificate. To one of those facts— that of residence— the statute, which, for the reasons already stated, ap- pears to us to be within the constitutional authority of congress to enact, peremptorily requires at that hearing the testimony of a credible white witness; and it was because no such testimony was produced that the order of deportation was made. Upon careful consideration of the subject, the only conclusion which appears to us to be consistent with the principles of inter- national law, with the constitution and laws of the United States, and with the previous decisions of this court, is that in each of these cases the judgment of the circuit court dis- missing the writ of habeas corpus is right, and nmst be alRrmed. Mr. Chief Justice FULLER. Mr. Justice BREWER, and Mr. Justice FIELD dissent- ed. POLICE POWER OF THE STATES. m STATE OF MINNESOTA t. BARBER. (10 Sup. Ct. 862, 136 U. S. 313.) Supreme Court of the United States. May 19, 1890. Appeal from the circuit court of the United States for the district of Minne- sota. Gordon E. Cole, for appellant. Alpheus H. Snow,L. T. Michener, J. E. McDonald, and John M. Butler, for State of Indiana, (by leave of court.) Jas. O. Broadhead, for State of Missoiiri, (by leave of court.) W. C. Goudy, Walter H. Sanborn, Wallace Pratt, and Geo. W. McCrary, for appellee. HARLAN, J. Henry E. Barber, the ap- pellee, was convicted, before a justice of the peace in Ramsey county, Minn., of the offense of having wrongfully and unlaw- fully offered and exposed for sale, and of having sold, for human food, 100 pounds of fresh, uncured beef, part of an animal slaughtered in the state of Illinois, but which had not been inspected in Minne- sota, and " certified " before slaugh ter by an inspector appointed under the laws of the latter state. Having been committed to the common jail of the county pursu- ant to a judgmentof imprisonment forthe term of 30 days, he sued out a writ of habeas corpus from the circuit court of the United States for the district of Minne- sota, and prayed to be discharged from such Imprisonment, upon the ground that the statute of that state, approved April 16, 1889, and under which he was prose- cuted, was repugnant to the provision of the constitution giving congress power to regulate commerce among the several states, as well as to the provision de- claring that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. Article 1, §8 ; article 4, § 2. The court below, speak- ing by Judge Nelson, held the statute to be in violation of both of these provisions, and discharged the prisonerfrom custody. In re Barber, 89 Fed. Rep. 641. A similar conclusion in reference to the same stat- ute had been previously reached by Judge Blodgett, holding the circuit court of the United States for the northern district of Illinois. Swift v. Sutphin, Id. 630. From the judgment discharging Barber the state has prosecuted the present ap- peal. Rev. St. § 764; 23 St. p. 437, c. 353. Attorneys representing persons interested in maintaining the validity of a statute of Indiana alleged to be similar to that of Minnesota were allowed to participate in the argument in this court, and to file briefs. The statute of Minnesota upon the va- lidity of which the decision of the case de- pends is as follows: "An act for the protection of the public health by providing for inspection before slaughter of cattle, sheep, and swine de- signed for slaughter for human food. "Section 1. The sale of any fresh beef, veal, mutton, lamb, or pork for human food in this state, except as hereinafter provided, is hereby pi-ohibited. "Sec. 2. It shall be the duty of the sev- eral local boards of health of the several cities, villages, boroughs, and townships within this state to appoint one or more inspectors of cattle, sheep, and swine, for said city, village, borough, or township, who shall hold their offices for one year, and until their successors are appointed and qualified, and whose authority and jurisdiction shall be territorially co-ex- tensive with theboard so appointing them ; and said several boards shall regulate the form of certificate to be issued by such in- spectors, and the fees to be paid them b.y the person applying for such inspection, which fees shall be no greater than are actually necessary to defray the costs of the inspection provided for in section three of this a,ct. "Sec. 3. It shall be the duty of the in- spectors appointed hereunder to inspect all cattle, sheep, and swineslaughtered for human food within their respective juris- dictions within twenty-four hours before the slaughter of the same, and, if found healthy, and in suitable condition to be slaughtered for human food, to give to the a])plicant a certificate in writing to that effect. If found unfit for food by reason of infectious disease, such Inspectors shall or- der the immediate removal and destruc- tion of such diseased animals, and no lia- bility for damages shall accrue by reason of such action. "Sec. 4. Any person who shall sell, ex- pose or offer for sale, for human food in this state, any fresh beef, veal, mutton, lamb, or pork whatsoever, which has not been taken from an animal inspected and certified before slaughter, by the proper local inspector appointed hereunder, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one hundred dollars, or by imprisonment not exceeding three months, for each offense. "Sec. 0. Each and everj^ certificate made by inspectors under the provisions of this act shall contain a si atement to the effect that the animal or animals inspected, de- scribing them as to kind and sex, were at the date of such inspection free from all indication of disease, apparently in good health, and in fit condition, Avhen inspected, to be slaughtered for human food ; a dupli- cate of which certificate shall be preserved in the office of the inspector. "Sec. 6. Any inspector making a false certificate shall be liable to a fine of not less than ten dollars, nor more than fifty dol- lars, for each animal falsely certified to be fit for human food under the provisions of this act. "Sec. 7. This act shall take effect and be in force from and after its passage. '' Gen. Laws Minn. 1889, p. 51, c. 8. The presumption that this statute was enacted, in good faith, for the purpose ex- pressed in the title, namely, to protect the health of the people of Minnesota, cannot control thefinal determination of theciues- tion whether it is not repugnant to the constitution of the United States. There may be no purpose upon the part of a leg- islature to violate the provisions of that instrument, and yet a statute enacted by it, under the forms of law, may, by its nec- essary operation, be destructive of rights 94 THE POLICE POWER. granted or secured by the constitution. In such cases the courts must sustain the supreme law of the land by declaring the statute unconstitutional and void. This principle of constitutional interpretation has been often announced by this court. In Henderson v. Mayor, etc., 92 U. S. 259, 20S. where a statute of New York, impos- ing burdensome and almost impossible conditions on the landing of passengei'S from vessels em ployed in foreign commerce, was held to be unconstitutional and void as a regulation of such commerce, the coui-t said that, "in whatever language a statute may be framed, its purpose must: be determined by its natural and reason- able effect. " In People v. CompagnieGen. Transatlantique, 107 U. S. 59, 6:J, 2 Sup. Ct. Piep. S7, where the question was as to the validity of a statute of the same state, which was attempted to be supi)orted as an inspection law authorized by section 10, art. 1 of the constitution, and was so designated in its title, it was said: "A state cannot make a la\v designed to raise money to support paupers, to detect or prevent crime, to guard against disease, and to cure the sick, an inspection law, within the constitutional meaning of that Avord, by calling it so in the title. " So, in Soon Hing v. Crowley, 113 IT. S. 703, 710, 5 Sui). Ct. Kei). 730: "The rule is general, with reference to the enactments of all leg- islative bodies, that the courts cannot in- quire into the motives of the legislators in passing them, except as they may be dis;- closed on the face of the acts, or infei-able from their operation, considered with ref- erence to the condition of the country and existing legislation. The motives of the legislators, considered as to the purposes they had in view, will always be presumed to be to accomplish that which follows as the natural and reasonable efl'ect of their enactments. " In Mugler v. Kansas, 123 IT. S. 623, (i61, S Sup. Ct. Rep. 273, thecourt, after observing that every possible presumption is t(j be indulged in favor of the validity of a statute, said that the judiciary must obey the constitution, rather than the law-making department of the govern- ment, and must, upon its own responsibil- ity, determine whether, in any particular case, the limits of the constitution have been passed. It was added: " If , therefore, a statute purporting to have been enacted to protect the public health, the public moi-als,or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give ef- fect to the constitution." Upon the au- thority of those cases, and others that could be cited, it is our duty to inquire, in respect to the statute before us, not only whether there is a real or substantial rela- tion between its avowed objects and the means devised for attaining those objects, but whether, by its necessary or natural tjperation, it impairs or destroys rights secured by the constitution of the United States. Underlying the entire argument in be- half of the state is the proposition that it is impossible to tell, by an inspection of fresh beef, veal, mutton, lamb, or pork, de- signed for human food, whether or not it came from animals that were diseased when slaughtered; that inspection on the hoof, within a very short time before ani- mals are slaughtered, is the only mode by which their condition can be ascertained with certainty. And it is insisted with great confidence that of this fact the coui-t must take judicial notice. If a fact alleged to exist, and upon which the rights of par- ties depend, is within common experience and knowledge, it is one of which the courts will take judicial notice. Brown v. Piper, 91 U. S. 37, 42; Phillips v. Detroit, 111 U. S. G04. GOG, 4 Sup. Ct. Rep. 5S0. But we cannot assent to the suggestion that the fact alleged in this case to exist is of that class. It may be the opinion of some that the presence of disease in ani- mals at the time of their being slaughtered cannot be determined by inspection of the meat taken from them; but we are not aware that such is the view universally, or even generally, entertained. But if, as alleged, the inspection of fresh beef, veal, mutton, lamb, or pork will not necessarily show whether the animal from which it was taken wasdiseased when slaughtered, il would not follow that a statute like the one l)efore us is within the constitutional power of the state to enact. On the con- trary, the enactment of a similar statute by each one of the states composing the Union would result in the destruction of commerce among the several states, so far as such commerce is involved in the trans- portation from one part of the country to another of animal meats designed for hu- man food, and entirely free from disease. A careful examination of the Minnesota act will place this construction of it be- yond question. The first section prohibits the sale of any fresh beef, veal, mutton, lamb, or pork for human food except as provided in that act. The second and third sections i)ro- vide that all cattle, sheep, and swine to be slaughtered fcjr human food within the re- spective jurisdictions of the inspectors shall be inspected, by the proper local in- spector appointed in Minnesota, within 24 hours before the animals are slaughtered, and that a certificate shall be made by such inspector showing, if such be the fact, that the animals when slaughtered were found healthy and in suitable condition to be slaughtered for human food. The fourth section makes it a misdemeanor, punishable by fine or imi)risonment, for any one to sell, expose or offer for sale, for human food in the state, any fresh beef, veal, mutton, lamb, or pork, not taken from an animal inspected and "certified before slaughter by the proper local inspect- or" a|)pointed under that act. As the in- spection must take place within the 24 hours immediately before the slaughter- ing, the act, by its necessary operation, excludes from the Minnesota market, prac- tically, all fresh beef, veal, mtitton, lamb, or i)ork — in whatever form, and altiK)tigh entirely sound, healthy, and fit f(jr human food — taken from animals slaughtered in other states, and directly tends to restrict the slaughtering of animals whose meat is to be sold in Minnesota for human food to those engaged in such business in that POLICE POWER OF THE STATES. state. This must be so, because thu time, expense, anrl labor of sending animals from points outside of Minnesota to points in that state, to be there inspected, and bringing them back, after inspection, to be slaughtered at the place from which they were sent (the slaughtering to take place within 24 hours after inspection, else the certificate of inspection becomes of no value) will be so great as to evniount to an absolute prohibition upon sales in Min- nesota of meat from animals not slaugh- tered within its limits. When to this is added the fact that the statute, by its nec- essary operation, prohibits the sale in the state of fresh beef, veal, mutton, lamb, or pork from animals that may have been in- spected carefully and thoroughly in the state where they were slaughtered, and before they were slaughtered, no doubt can remain as to its effect upon commerce among the several states. It will not do to say — certainly no judicial tribunal can with propriety assume — that the people of Minnesota may not, with due regard to their health, relj^ upon inspections in other states of animals there slaughtered for purposes of hiiman food. If the object of the statute had been to deny altogether the citizens of other states the privilege of selling, within the limits of Minnesota, for human food, any fresh beef, veal, mutton, lamb, or pork from animals slaughtered outside of that state, and to compel the people of Minnesota wishing to buy such meats either to purchase those taken from animals inspected and slaughtered in the state, or to incur the cost of purchasing them, when desired for their own domestic use, at points beyond the state, that ob- ject is attained by the act in question. Our duty to maintain the constitution will not permit us to shut our eyes to these obvious and necessary results of the Minnesota statute. If this legislation does not make such discrimination against the jiroducts and business of other states in favor of the products and business of Min- nesota as interferes with and burdens commerce among the several states, it would be difficult to enact legislation that would have that result. The principles we have announced are fully supported by the decisions of this court. In Woodruff v. Parham, 8 Wall. 123, 140, which involved the validity of an ordinance of the city of Mobile, Ala., relat- ing to sales at auction, Mr. Justice Mil- ler, speaking for this court, said : " There is no attempt to discriminate injuriously against the products of other states, or the rights of their citizens ; and the case is not, therefore, an attempt to fetter com- merce among the states, or to deprive the citizens of other states of any privilege or immunity possessed by citizens of Ala- bama. But a law having such operation would, in our opinion, be an infringement of the provisions of theconstitution which relate to tho.se subjects, and therefore void." So, in Hinson v. Lott, Id. 148, 151, decided at the same time, upon a writ of eri'or from the supreme court of Alabama, it was said, in reference to the opinion of that court: "And it is also true, as con- ceded in that opinion, that congress has the same right to regulate commerce among the states that it has to regulate commerce with foreign nations, and that, whenever it exercises that power, all con- flicting state laws must give way, and that, if congress had made any regulation covering the matter in question, we need inquire no further. That court seems to have relieved itself of the objection by holding that the tax imposed by the state of Alabama was an exercise of the concur- rent right of regulating commerce remain- ing with the states until some regulation on the subject had been made by congress. But, assuming the tax to be, as we have supposed, a discriminating tax, levied ex- clusively upon theproducts of sister states, and looking to the consequences which the exercise of this power may produce if it be once conceded, amounting, as we have seen, to a total abolition of all com- mercial intercourse between the states, under the cloak of the taxing power, we are not prepared to admit that a state can exercise such a power, though con- gress may have failed to act on the subject in any manner whatever. " In Welton v. Missouri, 91 U. S. 275, 281, the court, speaking by Mr. Justice Field, declared to be unconstitutional a statute of Missouri imposing a license tax upon the sale by peddlers of certain kinds of personal property "not the grow^th, prod- uce, or manufacture" of that state, but which did not impose a like tax upon sim- ilar articles grown, produced, or manu- factured in Missouri. After observing that, if the tax there in question could be im- posed at all, the power of the state could not be controlled, however unreasonable and oppressive its action, the court said: "Imposts operating as an absolute exclu- sion of the goods would be possible; and all the evils of discriminating state legis- lation favorable to the interests of one state, and injurious to the interests of other states and countries, which existed previous to the adoption of the constitu- tion, might follow, and the experience of the last fifteen years shows would follow, from the action of some of the states. " In Railroad Co. v. Husen, 95 U. 8. 465, the court examined a statute of Missouri prohibiting, under penalties, any Texas, Mexican, or Indian cattle from being driv- en or otherwise convej^ed into, or remain- ing in, any county of the state, between the 1st day of March and the 1st day of November in each year, by any person or persons whatsoever. While admitting in the broadest terms the power of a state to pass sanitary laws, and laws for the protection of life, liberty, health, or prop- erty within its borders, to prevent con- victs, or persons and animals suffering under contagious or infectious diseases, from entering the state, and, for purposes of protection, to establish quarantine and inspections, the court, Mr. Justice Strong delivering its opinion, said that a state may not, "under the cover of exerting its police powers, sul)staiitially prohibit or burden either foreign or interstate com- merce. " The general ground upon which it held the Missouri statute to be uncon- stitutional was that its effect was "to ob- struct interstate commerce, and to dis- criminate between the property of citizens 96 THE POLICE POWER. of one state and that of citizens of other states. " In Guy V. Baltimore, 100 U. S. 434, 443, the court adjudged to be void an ordi- nance of the city of Baltimore, exacting from vessels using the puljlic wharves of that city, and laden with the products of otlier states, higher rates of wharfage than from vessels using the same wharves, and laden with the products of Maryland. "Such exactions," the court said, "in the name of wharfage, must be regarded as taxation upon interstate commerce. Mu- nicipal corporations, owning wharves up- on the i)ublic navigable waters of the United States, and (jnasi public corpoi-a- tions transporting tlie products of the country, cannot be permitted, by discrim- inations of that character, to impede commercial intercourse and traffic among the several states and with foreign na- tions. " The latest case in this court upon the subject of interstate commerce as affected by local enactments discriminating against the products and citizens of other states is Walling v. Michigan, 116 U. S. 446, 4.55, 6 Sup. Ct. Rep. 4.54. We there held to be unconstitutional a statute of M chigan imposing a license tax upon per- sons ncjt residing, or having their princi- pal place of business, in that state, but whose business was that of selling, or so- liciting the sale of, intoxicating liquors to be shipped into the state from places with- out; a similar tax not being imposed in re- spect to the sale, and soliciting for sale, of liquors manufactured in Michigan. Mr. Jus- tice Braijley, delivering the opinion of the court, said: "A discriminating tax im- posed by a state operating to the disad- vantage of the products of otlier states when introduced into the first-mentioned state, is, in effect, a regulation in restraint of commerce among the states, and as such is a usurpation of the power con- ferred by the constitution upon the con- gress of the United States. " It is, however, contended in behalf of the state that there is in fact no interference by this statute with the bringingof cattle, sheep, and swine into Minnesota from oth- er states, nor any discrimination against the products or business of other states, for the reason — such is the argument — that the statute reiiuiring an inspection of animals on the hoof as a condition of the privilege of selling or offering for sale in the state the meats talien from them is api>licable alike to all owners of such ani- mals, whether citizens of Minnesota or citizens of other states. To this we answer that a statute may upon its face apply equally to the peoi)ie of all the states, and 3'et be a regulation of interstate commerce which a state may not estal>lish. A bur- den imposed by a state upon interstate commerce is not to be sustained simi)ly because the statute imposing it applies alike to the people of all the states, includ- ing the people of the state enacting such statute. Robbins v. Shelby Taxing-Dist., 120 U.S. 480, 497, 7 Sup.Ct. Rep. 592; Case of the State Freight Tax, 15 Wall. 232. The peoi)le of Minnesota have as much right to protection against the enactments of that state interfering with the freedom of com- merce among the states as have the peo- ple of other states. Although this statute is not avowedly or in terms directed against the bringing into Minnesota of the products of other states, its necessary ef- fect is to burden or obstruct commerce with other states, as involved in the trans- portation into that state, for purposes of sale there, of all fresh beef, veal, mutton, Iamb, or pork, however free from disease may have been the animals from which it was taken. The learne. r)5(). The constitution of Kansas provides: "The manufacture and sale of intoxicating liquors shall be forever prohibited in this state, except for medical, scientific, and mechanical purposes." 1 Gen. tst. Kan. POLICE POWEK OF THE STATES. 99 1889, p. 107. The sections of the Kansas •statutes claimed to have been violated by the petitioner are as follows: "Any I)erson or persons who shall manufacture, sell, or barter any spirituous, malt, vi- nous, fermented, or other intoxicating liquors shall be guilty of a misdemeanor, and punished as hereinafter provided: pro- vided, however, that such liquors may be sold for medical, scientific, and mechanical purposes, as provided in this act. It shall be unlawful for any person or persons to sell or barter for medical, scientific, or me- chanical purpos(ss any malt, vinous, spir- ituous, fermented, or other intoxicating liquors without first having procured a druggist's permit therefor from the pro- bate judge of the county wherein such druggist may be doing business at the time, "etc. " Any person without taking out and having a permit to sell intoxicat- ing liquors as provided in this act, or any person not lawfully and in good faith en- gaged in the business of a druggist, who shall directly or indirectly «ell or barter any spirituous, malt, vinous, fermented or other intoxicating liquors, shall be deemed guilty of a misdemeanor, and up- on conviction thereof shall be fined in any sum not less than one hundred dollars nor more than five hundred dollars, and be imprisoned in the county jail not less than thirty days nor more than ninety days." 1 Gen. St. Kan. c. 31, §§ 380, 3S1, 386. On August 8, 1890, an act of congress was approved, entitled "An act to limit the effect of the regulations of commerct- between the several states and with foreign countries in certain cases," which reads as follows: "That all fermented, distilled, or other intoxicating liquoi-s or liquids transported into any state or ter- ritory, or remaining therein, for use, con- sumption, sale, or storage therein, shall upon arrival in such state or territory be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such state or territory, and shall not be exempt therefrom by reason of being introduced therein in original Ijackages or otherwise." 26 St. 313, c. 728. L. JJ. Kellog-g; A. L. WilJmws, R. B. Welch, and J. N. Ives, for appellant. Louis J. Blum, Edgar C Blum, and David Overmyer, for appellee. Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court. The power of the state to impose re- straints and burdens upon persons and property in conservation and promotion of the public health, good order, and prosperity is a power originally and al- ways belonging to the states, not surren- dered by them to the general government, nor directly restrained by the constitu- tion of the United States, and essentially exclusive. And this court has uniformly recognized state legislation, legitimately for police purposes, as not, in the sense oi the constitution, nec^essarily infringing up y the two houses of the lep:isla- ture, three-ttfths being present, entitled "An act to regulate the fees and charges for elevating, trimming, receiving, weigh- ing, and discharging grain by means of floating and stationary elevators and warehouses in this state. " The act was iu these words: "Section 1. The ni.ax- imum charge for elevating, receiving, weighing, and discharging grain by means of floating and stationary elevators and warehouses in this state shall not exceed the following rates, namely : For elevat- ing, receiving, weighing, and discharging grain, five-eighths of one cent a bushel. In the process of handling grain by mearis of floating and stationary elevators, the lake vessels or propellers, the ocean vessels or steam-ships, and canal-boats, shall only be required to pay the actual cost of trim- ming or shoveling to the leg of the eleva- tor when unloading, and trimming cargo when loading. Sec. 2. Any person or per- sons violating the provisions c>f this act shall, upon conviction thereof, be ad- judged guilty of a misdemeanor, and be punished by a fine of not less than two hundred and fifty dollars, and costs there- of. Sec. 3. Any person injured by the vio- lation of the provisions of this act may sue for and recover any damages he may sustain against any person or persons violating said provisions. Sec. 4. Thisact shall not apply to any village, town, or city having less than one hundred and thirty thousand population. Sec. 5. This act shall take effect in)mediately. " (Jii the 26th of November, 18S8, an indict- ment, which bad been found by the grand jury of Frie county. New York, in the court of sessions of that county, against J. Tal- man Budd, for charging and receiving fees for elevating, re-eiving, weighing, and dis- charging grain into and from a stationary 1 Dissenting opinion of I\Ir. Justice Brewer omitted. elevator and warehouse, contrary to the provisions of said statute, came on trial before a criminal term of the superior court of Buffalo, Erie county. The charge in the indictment was that Budd, at Buffalo, on the ]9th of Septem- ber, I8S8, being manager of the Wells ele- vator, which was an elevator and ware- house for receiving and discharging grain in the citj' of Buffalo, that city being a municipal corpora (:ion duly organized in pursuance of the laws of the state of New York and having a population of upwards of 130,000 people, did receive, elevate, and weigh from the propeller called the "Oceanica," the property of the Lehigh Valley Transportation Com[)any, a body corporate, 51,000 bushels of grain and corn, the property of said com))any, into the said Wells elevator, and unlawfully exacted from said company, for elevating, receiving, weighing, and discharging said grain and corn, the sum of «jne cent a bushel, and also exacted from said com- pany, for shoveling to the leg of the ele- vator, in the unloading of said 51,000 bush- els of grain and corn, .11.75 for every 1,000 bushels thereof, over and above the actual cost of such shoveling. The facts set forth in the indictment were proved, and the defendant's counsel requested the court to instruct the jury to render a verdict of acquittal, on the ground that the prosecution was founded on a statute which was in conflict both with the constitution of the United States and with that of the state of New Y'ork ; that the services rendered by Budd, for which the statute assumed to fix a price, were not pul>lic in their nature; that nei- ther the persons rendering them, nor the elevator in question, had received any privilege from the legislature; and that such elevator was not a public warehouse, and received no license. The court de- clined to direct a verdict of acquittal, and the defendant excepted. The court charged the jury that it was claimed by the prosecution that the de- fendant had violated the statute in charg- ing more than five-eighths of one cent a bushel for elevating, receiving, weighina, and discharging the grain, and in charg- ing more than the actual cost of trimming or shoveling to the leg of the elevator, in unloading the propeller; that the statute was constitutional ; and that the jury should find the defendant guilty as charged in the indictment, if they believed the facts which had been adduced. The defendant excepted to that part of the charge which instructed the jury that they might find the defendant guilty of exacting an excess- ive rate for shoveling to the leg of the ele- vator, and also to that part which in- structed the jury that they might ccjnvict the defendant for having exacted an ex- cessive rate for elevating, receiving, weigh- ing, and discharging thegrain and corn. The jurj- brought in a verdict of guilty as charged in the indictment, and the court .sentenced the defeudant to pay a fine of .f250, and, in default thereof, to stand committed to the common jail of Erie county for a period not exceeding (^ne day for each dollar of said fine. The de- fendant appealed from that judgment to POLICE POWER OF THE STATES. 105 the general term of the superior court of Buffalo, which affirmed the judginent. He then appealed to the court of appeals of New York, which affirmed the judgment of tlie superior court of Buffalo; and tiie latter court afterwards entered a judg- ment making the judgment of the court of appealsits judgment. Thedefendant then sued out from this court a writ of error directed to the superior court of Buffalo. The oi)inion of tlie court of appeals is reported in 117 N. Y. 1, 22 N. E. Kep. 670. It was delivered by Judge Andrkws, with whom Chief Judge Kuger and Judges Eari., DA^^OKT^, and Finch concurred. Judges Peckham and Gkay dissented; Judge Gray giving a dissenting opinion, and Judge Pkckham adhei-ing to the dis- senting opinion which he gave in the case of People v. Walsh, 117 N. Y. 621, 22 N. E. Eep. 6S2. On the 22d of June, 188S, a complaint on oath was made before Andrew Walsh, police justice of the city of Brooklyn, N. Y., i;}iiit on the preceding day one Ed- ward Annan, a resident of that city, had violated the provisions of chapter 5S1 of the Laws of New York of 1888, by exacting from the complainant more than five-eighths of one cent per bushel for elevating, weighing, receiving, and discharging a boat-load of grain from a canal-boat to an ocean steamer, and by exacting from the canal-boat and its owner more tiian the actual cost of trimming or shoveling to the leg of the elevator, and by charging against the ocean steamer more than the actwal cost of trimming the cargo; the services being rendered by a floating elevator of which Annan was part owner and one of the agents. On this com]jIaint, Annan was arrested and brought before the police jus- tice, wlio took testimony in the case, and committed Annan to the custody of the sheriff of the county of Kings to answer the charge before a court of special ses- sions in the city of Brooklyn. Thereu[)on writs of habeas corpus and certiorari were granted by the supreme court of the state of New York, on the application of Annan, returnable before the general term of that court in the first instance, but, on a hearing thereon, the writs were dismissed, and Annan was remanded to the custody of the sheriff. The opinion of the general term is reported in 2 N. Y. Supp. 27.5. Annan appealed to the court of appeals, which affirmed the order of the general term, (117 N, Y. 621. 22 N. E. Rep. 682,) for the reasons set forth in the opin- ion in the Case of Budd, 117 N. Y. 1, 22 N. E. Rep.t'xO; and the judgment of the court of appeals was afterwards made the judg- ment of the supreme court. Annan sued out a writ of error from this court, di- rected to the supreme court of the state of New York. Like proceedings to the foregoing were had in the case of one Francis E. Pinto; the charge against him being that he had exacted from the complainant more than five-eighths of one cent per bushe! for re- ceiving and weighing a cargo of grain from a boat into the Pinto stores, of which he was lessee and n)anager, the same being a stationary grain elevator on land in the city of Brooklyn, N. Y , and had exacted more than tlie actual cost of trimming or shoveling to the leg of the elevator. Pinto sued out from this court a writ of error to the supreme court of the state of New York. The main question involved in these cases is whether this court will adhere to its decision in Munn v. Illinois, 94 U.S. 113. The court of appeals of New York, in People V. Budd, 117 N. Y. 1, 22 N. E. Kef). 670, held that chapter .581 of the Laws of 1888 did not violate the constitutional guaranty protecting private property, but was a legitimate exercise of the police power of the stateover a business affected with a public interest. In regard to the indictment against Budd, it held that the charge of exacting more than the statute rate for elevating was proved, and that as to the alleged overcharge for shoveling, it appeared that the carrier was com- pelled to pay $4 for each 1,000 bushels of grain, which was the charge of the shovel- ers' union, by which the work was per- formed, and that the union paid the ele- vator, for the use t)f the letter's steam- shovel, .fl.7.5 for each 1 ^'^>o bushels. The court held that t' error in sub- mitting to the ju' ion as to the overcharge for r hattheinten- ti(jn of the sta o confine the charge to the "at of the outside labor required; a violation of the act in thatpai is proved ; but that, as the verdi sentence were justified by proof c rcharge for ele- vating, even if tilt overcharge for shoveling was not mta out. the ruling of the superior court c* j^uffalo could not have prejudiced Budd. Of course, this court, in these cases, can consider only the federal questions involved. It is claimed, on behalf of Budd, that the statute of the state of New York is un- constitutional, because contrary to the provisions of section 1 of the fourteenth amendment to the constitution of the United States, in depriving the citizen of his property without due process of law; that it is unconstitutional in fixing the maximum charge for elevating, receiving, weighing, and discharging grain by means of floating and stationary elevators and warehouses at five-eighths of one cent a bushel, and in forbidding the citizen to make any profit upon the us3 of liis prop- erty or labor; and that the police power of the state extends only to property oi business which is devoted by its owner to the iDublic by a grant to the public of the right to demand its use. It is claimed on benalf of Annan and Pinto that floating and stationary elevators in the port ot New York are private property, not af- fected with any public interest, and not subject to the regulation of rates. "Trimming" in the canal-boat, spoken of in the statute, is shoveling the grain from one place to another, and is done by longshoremen with scoops or shovels; and "trimming" the ship's cargo when loading is stowMng it and .securing it for the voyage. Floating elevators are, pri- marily, boats. Some are scows, and have to be towed frtjm place to place by steam tugs; but the majority are propellers. 106 THE POLICE POWER. When the floating elevator arrives at the ship, and makes fast alouj^-side of her, the canal-boat carrying the grain is made fast on the otiier side of the elevator. A long wooden tube, called "the leg of the eleva- tor," andsi)oken of in the statute. Im jow- ereudd Case the court of appeals held that the words "actual cost," used in the statute, were intended to exclude any charge by the elevator be- yond the sum specified for the use of its machinery in shoveling, and the ordinary ex|)enses of operating it, and to confine the charge to the actual cost of the out- side labor required for ti'immiug and bringing the grain to the leg of the ele- vator; and that the purjjose of the stat- ute could be easily evaded and defeated if the elevator owner were permitted to sep- arate the services, and charge for the use of the steam-shovel any sum which might be agreed upon between him and the shovelers' union, and thereby-, under coIcm* of charging for the use of his steam- shovel, exact from the carrier a sum for elevating beyond the rate flxed therefor by the statute. The court of appeals, in its opinion in the Budd Case, cousidered fully the (jues- tion as to whether the legislature had power, under the ct)nstitution of the state of New York, to prescribe a maximum charge for elevating grain by stationary elevators, owned by individuals or cor- porations who had appropriated their property to that use, and were engaged in that business ; and it answered the in- quiry in the affirmative. It also reviewed the case of Munn v. Illinois, 94 11.8.118, and arrived at the conclusion that this court there held that the legislation in question in that case was a lawful exer- cise of legislative power, and did nut in- fringe that clause of the fourteenth amend- ment to the constitution of the Ilniied States which provides that no state shall "deprive any person of life, libertj', or property without due process of law:" and that the legislation in qnestion in that case was similar to. and not dis- tinguishable in principle from, the act of the state of New York. In regard to Munn v. Illinois the court of appeals said that the question in that case was raised by an individual owning an elevator and warehouse in Chicago, erected for, and in connection with which he had carried on, the business of elevat- ing and storing grain, many years prior to the passage of the act in question, and prior also to the adoption of thp amend- ment to the constitution of Illinois, in 1S7U, declaring all elevators and ware- houses where grain or other j)roperty is stored for a compensation to be public warehouses. The court of apjteals then cited the cases of People v. Railroad Co., 7(» N. Y. .5(i9; Bertholf v. O'Reillv. 74 N. Y. 509; Buffalo, E. S. R. Co. v. Buffalo St. R. Co., Ill N. Y. 182, 19 N. E. Rep. «8; and People V. King, 110 N. Y. 418, IS N. E. Rep. 24i^, — as cases in which Munn v. lllinuis had been referred to by it, and said that it could not overrule and disregard Munn V. Illinois without subverting the princi- ple of its own decision in People v. King, and certainly not without disregarding many of its deliberate *'xpressions in ap- proval of the principle of Munn v. Illinois. The court of a[)peals further examined the question whether the pcjwer of the legislature to regulate the charge for ele- vating grain, where the business was car- ried on by individuals ui)on their own premises, fell within the scope of the police power, and whether the statute in qties- tion was necessary for the public welfare. It affirmed that, while no general power resided in the legislature to regulate private business, pres(;ribe the conditions under which it should be conducted, fix the price of connuodities or services, or in- terfere with freedom of contrac^t, and whilethemerchant, manufacturer, artisan, and laborer, under our system of govern- ment, are left to pursue and provide for their own interests in their own way, un- trammeled by burdensome and restrictive regulaticuis, which, however common in rude and irregular times, are inconsistent with constitutional liberty, yet there might be special conditions and circum- stances which brought the business of elevjiting grain within principles which by the con.mon law and the practice < f tree governments, justined legislative con- trol and regulation in the particular case, so that the statute would be constitu- tional; that the control which, i)y com- mon law and by statute, was exerci.sed over common carriers, was conclusive upon the point that the right of the legis- lature to regulate the charges for services in connection with the use of property did not depend in every case upon the ques- tion whether there was a legal monojjoly, or whether special governmental iirivi- leges or protection had been bestowed; that there were elements of publicity in the business of elevating grain which pecul- POLICE POWER or THE STATES. 107 iarly affected it with a public interest; that those elements were found in the nature and extent of the business, its rela- tion to the commerce of tlie state and country, and the practical monopoly en- joyed by tiiuse engaged in it; that about 120, 000, 000 bushels of grain come annually to Buffalo from the west; that the l)usi- ness of elevating grain at Buffalo is con- nected mainly with lake and canal trans- portation; tnat the grain received at New York in 18S7 by waj' of the Erie canal and Hudson liver, during the season of canal navigation, exceeded 40,000,000 bushels, — an amount vei-y largely in excess of the grain received during the same period by rail, and by river and coast-wise vessels; that the elevation of that grain from lake vessels to canal-boats takes place at Buffalo, where there are 30 or 40 elevators, stationary and floating; that a large pro- portion of the surplus cereals of the coun- try passes through the elevators at Buffalo, and finds its way through the Erie canal and Hudson river to the sea- b(jard at New York, whence it is distribut- ed to the markets of the woiid ; that the business of elevating grain is an incident to the business of transportation, the ele- vators being indispensable instrumentali- ties in the business of the common carrier, and in a broad sense performing the work of carriers, being located upon or adjacent to the waters of the state, and transfer- ring the cargoes of grain from the lake vessels to the canal-boats, or frum the ca- nal-boats to the ocean vessels, and there- by performing an essential service in transportation; that bj^ their means the transportation of grain by water from the upper lakes to the seaboard is ren- dered possible; that the business of ele- vating grain thus has a vital relation to commerce in one of its most important aspects; that every excessive charge made in the course of the transportation of grain is a tax upon commerce; that the public has a deep interest that no exorbi- tant charges shall beexacted at any point upon the business of transportation; and that whatever impaired the usefulness of the Erie canal as a highwa.y of commerce involved the public interest. The court of appeals said that, in view of the foregoing exceptional circumstances, the business of elevating grain was af- fected with a public interest, witiiin the language of Lord Cliief Justice Hale, in his treatise De Fortibns Maris, (Harg. Law Tracts, 7S;) that the case fell within the principle which permitted the legisla- ture to regulate the business of common carriers, ferrymen, and hack men, and interest on the use of money; that the underlying principle was that business of cei'tain kinds holds such a peculiar rela- tion to the public interest that there is superinduced upon it the right of public regulation; and that the court rested tl)e power of the legislature to control and regulate elevator cliarges upon the nature and extent of the })usiness, the existence of a virtual moncjpoly, the benefit derived from the Erie canal's creating the business and making it p(»ssible, the interest to trade and commerce, the relation of the business to the property and welfare of the state, and the practice of legislation in analogous cases, collectively creating an exceptional case and justifying legislative regulation. Tiie opinion further said that the crit- icism to which tlie case of Munn v. Illi- nois had been subjected proceeded mainly upon a limited and strict construction and definition of the police power; that there was little reason, under our system of government, for placing a close and narrow interpretation on the police power, or restricting its scope so as to hamper the legislative power in dealing with the varying necessities of society, and tlie new circumstances, as they arise, calling for legislative intervention in the public interest; and that no serious invasion of constitutional guaranty by the legislature could withstand for a long time the searching influence of pul)lic opinion, whicli was sure to come sooner or later to the side (jf law, order, and justice, however it might have been swayed for a time bj' passion or preju- dice, or whatever aberrations might have marked its course. We regard these views which we have referred to as announced by the court of appeals of New York, so far as they sup- port the validity of the statute in ques- tion, as sound and just. In Munn v. Illinois the constitution of Illinois, adopted in 1870, provided, in ar- ticle 13, section 1, as follows: "All eleva- tors or store-houses where grain or other property is stored for a compensation, whether the property stored be kept sepa- rated or not, are declared to be public warehouses;" and the act of the legisla- ture of Illinois approved April 25, 1S71, (Public Laws of Illinois of 1871-72, p. 762,) divided public warehouses into three classes, prescribed the taking of a license, and the giving of a bond, and fixed a max- imum charge for warehouses belonging to class A, for storing and handling grain, including the cost of receiving and delivering, and imposed a fine on convic- tion for not taking the license or not giv- ing the bond. Munn and Scott were in- dicted, convicted, and fined for not taking out the license, and not giving the l)ond. and for charging rates for ,storing and handling grain higher than those estab- lislied by the act. Section 6 of the act provided that it should be the duty of every warehouseman of class A to receive for storage any grain that might be ten- dered to him. Munn and Scott were the managers and lessees of a pulilic ware- house, such as was named in the statute. The supreme court of Illinois having af- firmed the judgment of couAiction aga'nst them, on the ground that the statute of Illinois was a valid and constitutional en- actment, (Munn V. People, 69 111. 80,) they sued out a writ of error from this court, and contended that the provisions of the sections of the statute of Illinois which they were charged with having violated were repugnant to the third clause of sec- tion 8 of article 1, and the sixth clause of section 9 of article 1, of tlie constituHon of the United States, and to the fifth and fourteenth amendments of that consti- tution. 108 THE POLICE POWER. This court, in Munn v. Illinois, the opin- ion being delivered by Chief Justice Waitr, iind there being a published dis- «3ent by only two justices, considered care- fully the question of the repugnancy of the Illinois statute to the fourteenth amend- ment. It said that, under the powers of government inherent in every sovereignty, " the government regulates the conduct of its citizens one towards another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good;" and that, "in their exercise it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, liack- men, bakers, millers, wliartingers, inn keep- ers, etc., and in so doing to fix a max- imum of cliarge to be made for services rendered, accommodations furnished, and articles sold." It was added: "To this day, statutes are to be found in manj- of the states upon some or all these sub- jects; and we think it has never yet been successfully contended that such legisla- tion came within any of the constitu- tional ijrohibitions against interference with private property." It announced as its conclusions that, down to tlie time of the adoption of the fourteenth amend- ment, it was not supposed that statutes regulating the use, or even the price of the use, of private property necessarily de- prived an owner of his property without due process of law; that, when private property was devoted to a public use, it was subject to public regulation; that Munn and Scott, in conducting tJie busi- ness (jf their warehouse, pursued a public employment and exercised a 8f)rt of pub- lic office, in the same sense as did a com- mon carrier, miller, ferryman, inn-keeper, wharfinger, baker, cartman, or hackney coachman; that they stood in the very gateway of commerce, and took toll from all who passed ; that their business tended "to a common charge," and hati become a thing of public interest and use; that the toll on the grain was a common charge; and that, according to Lord Chief Justice Hale, every such warehouseman "ought to be under a public regulation, viz.," that he " take but reasonable toll. " Thi.^ court further held, in Munn v. Illi- nois, that the business in question was one in which the whole pultlic had a direct and positive interest : tliat the statute of Illinois simply extended the law so as to meet a new development of commercial progress; that there was no attempt to compel the owners of the warehouses to grant the public an interest in tiieir prop- erty, but to declare their obligations if they used it in that particular manner; that it mattered not that Munn and Scott had built their warehouses and established their business before the regu- lations complained of were adojjted ; that, the propert.y being clothed with a puijlic interest, what was a reasonable compen- sation for its use was not a judicial, but a legislative, (luestion; that, in countries w^ere the common law prevailed, it had been customary from time immemorial for the legislature to declare what should be a reasonable compensation under such cir- cumstances, or to fix a maximum, beyond which any charge made would be unrea- sonable; that tlie warehouses of Munn and Scott were situated in Illinois, and their business was carried on exclusivel.v in that state; that the warehouses were no more necessarily a part of commerce itself than the dray or the cart by which, but for them, grain would be tr? nsferred from one railroad station to another; that their regulation was a thing of do- mestic concern; that, until congress acted in reference to their interstate relations, the state might exercise all the powers of government over them, even though in so doing it might operate indirectl.y upon commerce outside its immediate jurisdic- tion ; and that the provision of section 9 of article 1 of the constitution of the United States operated only as a limita- tion of the powers of congress, and did not affect the states in the regulation of their domestic affairs. The final conclu- sion of the court was that the act of Illi- nois was not repugnant to the constitu- tion of the United States, and the judg- ment was affirmed. In Sinking Fund Cases, 99 U. S. 700, 747, Mr. Justice Bradley, who was one of the justices who concurred in the opinion of the court in Munn v. Illinois, speaking of that case, said : "The inquiry there was as to the extent of the police power in cases whei-e the public interest is affected, and we held that when an employment or business becomes a matter of such public interest and importance as to create a common charge or burden upon the citi- zen, — in other words, when it becomes a practical monopoly, to which the citizen is compelled to resort, and by means of which a tribute can be exacted from the community, — it is subject to regulation by the legislative power." Although this was said in a dissenting opinion in Sink- ing Fund Cases, it shows what Mr. Justice Bkadlev regarded as the principle of the decision in Munn v. Illinois. In Water-Works v. Schottler, 110 U. S, 347, 354, 4 Sup. Ct. Rep. 4S, this court said "that it is within the power of the gov- ernment to regulate the prices at which water shall be sold by one who enjoys a virtual monopoly of the sale, we do not doubt. That question is settled by what was decided oii full consideration in Munn V. Illinois, 94 U. S. 113. As was said in that case, such regulations do not deprive a person of his property without due pro- cess of law. " In Railroad Co. v. Illinois, IIS U. S. .557. 569, 7 Sup. Ct. Rep. 4, Mr. Justice Miller, who had concarred in the judgment in Munn V. Illinois, referred, in delivering the opinion of the court, to that case, and said: "That case presented the question of a private citizen, or unincorporated partnership, engaged in the warehousing business in Chicago, free from any claim of right or contract under an act of in- corporation of any state whatever, and free from the question of continuous trans- portation through several states. And in that case the court was presented with the question, which it decided, whether any one engaged in a public business, in which all the public hacia right to require POLICE POWER OE THE STATES. 109 his service, could be regulatecl by acts of the legislature in the exercise of this public function and public duty, so far as to limit theamount of charges thatshould bemade for such services. " In Dow V. Beidelman, 125 U. S. 6S0, 686, 8 Sup. Ct. Rep. 1028. it was said by Mr. Justice Gray, in delivering the opinion of the court, that in Munn v. Illinois the court, after aflirniing the doctrine that by the common law carriers or other per- sons exercising a public employment could not charge more than a reasonable compensHtion for their services, and that it is within the power of the legislature "to declare what siiall be a reasonable compensation for such services, or, per- haps more properly speaking, to fix a maximum beyond which any charge made would be unreasonable," said that to limit the rate of charges for services ren- dered in the public employment, or for the use of property in wliich the public has an interest, was only changing a regulation which existed before, and established no new principle in the law, but only gave a new effect to an old one. In Railroad Co. v. Minnesota, 1.34 U. S. 418, 461, 10 Sup. Ct. Rep. 462, it was said by Mr. Justice Bh.\dley, in his dissenting opinion, in which Mr. Justice Gr.\y and Mr. Justice Lamak concurred, that the de- cision of the court in that case practically overruled Munn v. Illinois; but the opin- ion of the court did not say so, nor did it refer to Munn v. Illinois; and we are of opinion that the decision in the case in 134 U. S., 10 Sup. Ct. Rep., is, as will be here- after shown, quite distinguishable from the present cases. It is tuus a[)parent that this court has adhered to the decision in Munn v. Illi- nois, and to the doctrines announced in the opinion of the court in that case; and those doctrines have since been repeatedly enforced in the decisions of the courts of the states. In Lake Shore, etc., Ry. v. Cincinnati, S. & C. Ry.,;W Ohio St. 604. 616, in 1877. it was said, citing Munn v. Illinois: "When the owner of property devotes it to a public use, he. in effect, grants to the public an interest in such use, and must, to the ex- tent of the use, submit to be controlled by the public, for the connijon good, as long as he maintains the use." That was a decision by the sunreme court commission of Ohio. In State v. Gas Co., 34 Ohio St. 572, 5S2, in 1S78, Munn v. Illinois was cited with approval, as holding that where the owner of property devotes it to a use in which the public have an interest, he in effect grants to the public an interest in such use, and must, to the extent of that interest, submit to be controlled by the public, for the common good, so long as lie maintains the use; and the court add- ed that in Munn v Illinois the principle was applied to warehousemen engaged in receivhig and storing gram; that it was held that their rates oi charges were sub- ject to legislative regulation; and that the principle applied with greater force to corporations when they were invested with franchises to be exercised to subserve the public interest. The supreme court of Illinois, in Rug- gles V. People, 91 111. 256, 262, in 1878, cited Munn V. People, 69 111. 80, which was affirmed in Munn v. Illinois, as holding that it was competent for the general as- sembly to fix the maximum chai-ges by in- dividuals keeping public warehouses for storing, handling, and shipping grain, and that, too, when such persons had derived no special privileges from the state, but were, as citizens of the state, exercising* the business of storing and handling grain for individuals. The supreme court of Alabama, in Davis v. State, 6S Ala. 58, in ISSO held that a statute declaring it unlawful, within cer- tain counties, to transport or move, after sunset and before sunrise of the succeeding* day, any cotton in theseed, but permitting the owner or purchaser to remove it from the field to a place of storage, was not un- constitutional. Against the argument that the statute was such a despotic interievence with the rights of private pr(jperty as to be tantamount, in its practical effect, to a deprivation of ownership "without due process of law," the court said that the statute sought only to regulate and con- trol the transportation of cotton in one particular condition of it, and was a mere police regulation, to which there was no constitutional objection; citing Munn v, Illinois. It added that the object of the statute was to regulate traffic in the sta- ple agricultural product of the state, so as to prevent a prevalent evil, whicli, in the o[)inion of the law-making power» might do much to demoralize agricultural labor, and to destroy the legitimate pro'- its of agricultural pursuits, to the public detriment, at least within the specified territory'. In Baker v. State, 54 Wis. 368, 373, 12 N. W. Rep. 12, in 18S2, Munn v. Illinois was cited with approval b3' the supreme courc of Wisconsin, as holding that the legisla- ture of Illinois had power to regulate pub- lic warehouses, and the warehousing and inspection of grain within that state, and to enforce its regulations by penalties, and that such legislation was not in con- flict with any provision of the federal con- stitution. The court of appeals of Kentucky, in 18S2, in Nash v. Page, 80 Ky. 539, 545, cited Munn V. Illinois, as applicable to the case of the proprietors of tobacco warehouses in the city of Louisville, and held that the character of the business of the tobacco warehousemen was that of a public em- ployment, such as made them subject, in their charges and their mode of conduct- ing business, to legislative regulation and control, as having a practical monopoly of the sales of tobacco at auction. In 1884, the supreme court of I'ennsyl- vania, in Girard Storage Co. v. South- wark Co., 105 Pa. St. 248, 252, cited Munn V. Illinois as involving the rights of a pri- vate person, and said that the principle involved in the ruling of this court was that, where the owner of such property, as a warehouse, devoted it to a use in which the public had an interest, he in effect granted to the public an interest in such use, and must, therefore, to the ex- tent thereof, submit to be controlled by 110 THE POLICE POWER. the public for the cominon good, as long as he iimintained that use. In Sawj-er v. Davis, 186 Mass. 239, in 1S,S4, the supreme judicial court of Massa- ■chusetts said that nothing is better esiab- lislipd than thepower of the legislature to iriake what are called |)olice regulations, equal and reasonable charges, and that there could be no judicial inquiry as to the reason- ableness of such rates. A railroad com- pany, in answer to an application for a mandaiaus, contended that such rates in 112 THE POLICE POWER. reji;nrd to it were unreasonable, and, as it uas not allowed by the state court to put in testimony in support of its answer, on tlie question of the reasonableness of Buch rates, this court held that the stat- ute "as in conflict with the constitution of the United States, as depriving the coinpiiny of its prencer v. Mer- chant, 12.3 li. S. 34.3,306,8 Sup, Ct. Rop. 921. What was said in the opinion of the court in 134 II. S., 10 Sup. Ct. Rep., had reference only to the ease then before the court, and to charges fixed by a commission appoint- ed under an act of the legislature, under a constitution of the state which provided that all corporations, being common car- riers, should be bound to carry "on equal and reasonable terms," and under a stat- ute which provided that all charges madft by a common carrier for the transptjrta- tion of passengers or property should be "equal and reasonable." What was said in the opinion in 134 U. S., 10 Sup. Ct. Rep., as to the question of the reasonableness of the rate of charge being one for judicial investigation, hail no reference to a case where the rates are prescribed directly by the legislature. Not only was that the casein the statute of Illinois in Munn v. Illinois, but the doc- trine was laid down by this court in Rail- way Co. V. Illinois, IIS U. S. .3.37. .3()8,7 Sup. Ct. Rep. 4, that it was the right of a state to establish limitations upon the power of railroad companies to fix the price at which they would carry passengers aud freight, aud that the question was of the same character as that involved in fixing the charges to be made by persons en- gaged in the warehousing business. So, too, in Dow V. Beidleman, 125 U. S. 680, 686, 8 Sup. Ct. Rep. 1028, it was said that it was within the jiower of the legislature to declare what should be a reasonable compensation for the services of persons exercising a public employment, or to fix a maximum beyond which any charge made would be unreasonable. But in Dow v. Beidleman, after citing Munn V. Illinois, 04 U.S. 113; Railioad Co. V. Iowa, Id. 1.35, 161, 162: Feik v.Railwav. Id. 164. 178; Railroad v. Ackley, Id. 179; Railroad v. Blake, Id. 180; Stone v. Wis- consin, Id. 181; Ruggles v. Illinois, 108 U. S. 526, 2 Sup. Ct. Rep. 832; Railroad Co. v. Illinois, 108 U. S. 541, 2 Sup. Ct. Rep. 83!); Stone V. Trust Co., 116 U. S. 307, 6 Sup. Ct. Rep. 3.34, 3S8, 1191; Stone v. Illinois Cent. R. Co., 116 U. S. 347, 6 Sup. Ct. Rep. 34S, 3SS, 1191, and Stone v. New Orleans & N. E. R. Co., 116 U. S. 352, 6 Sup. Ct. Rep. 349, 391 , — as recognizing the doctrine that the leg- islature may itself fix a maximum, beyond which any charge would be unreasonable, in respect to services rendered in a public employment, or for the use of property in which the public has an interest, subject to the proviso that such power of limita- tion or regulation is not without limit, aud is not a power to destroy, or a power to compel the doing of the services with- out I'eward, or to take private property for public use without just compensation or without due process of law, the court said that it had no means, "if it would under any circumstances have the power," of determining that the rate fixed by the legislature in that case was unreasonable, and that it did not appear that there had been any such confiscation of prf)p2rty as amounted to a taking of it without due process (jf law. or that there had been any denial of the equal pi'otection of the laws. In the cases before us, the records do not show that the charges fixed by the statute ai-e unreasonable, or that projier- ty has been taken without due process of law, or that there has been any denial of theeijual protection (jf the laws; even if under any circumstances we could deter- mine that the maximum rate fixed by the legislature was unreasonal)le. In Banking Co. v. Smith. 128 U. S. 174, 179, 9 Sup. Ct. Rep. 47, in the opinion of the court, delivered by Mr. .lustice Fikld, it was said that this c{)urt had adjudged in numerous instances that the legislature of a state had the power U) prescribe the charges of a railroad comi)any for the carriage of persons and merchandise with- in its limits, in the absence of any con- tract to the contrary, subject to the limitation that the carriage is not re- quired without reward, or upon condi- tions amounting to the taking of prop- erty for public use without just compensa- tion, and that what is done does not amount to a regulation of foreign or in- terstate commerce. It is further contended for the plaintiffs in error that the statute in question vio- lates the fourteenth amendment, because it takes from the elevator owners the equal protection of the laws, in that 't applies only to places oMiich have 130,000 population, or more, and does not apply to places which have less than 130,000 population, and thus operates against elevator owners in the larger cities of the state. The law operates equally on all elevator owners in places having 130,000 population, or more; and we do not per- ce've how they are depi-ived of the equal protection of the laws, within the mean- ing of the fourteen ch amendment. Judgments affirmed. Mr. Justice BREWER, Mr. Justice FIELD, and Mr. Justice BROWN dissent. POLICE POWER OF THE STATES. ' 113 CHICAGO, M. & ST.P.RY. CO.v. STATEOF MINNESOTA ex rel. RAILROAD & WAREHOUSE COMMISSiON.i (10 Sup. Ct. 462, 702, 134 U. S. 418.) Supreme Court of the United States. March 24, 1890. ,Tohv W. Gary and W. C. Goudy, for plaintiff in error. Moses E. Clapp, for de- fendant In error. BLATCHFORD, J. ThiHisa writ of error to review a judgment of the supreme court of the state of Minnesota, awarding a writ of niHTidamus against the Chicago, Mil- waukee & St. Paul Railway Company. The case arose on proceedings taken by the railroad and warehouse commission of the state of Minnesota, under an act of the legislature of that state approved March 7, 18S7, (Gen. Laws 1887, c. 10,) en- titled "An act to regulate common car- I'iers, and creating the railroad and ware- house commission of the state of Minne- sota, and defining the duties of such com- mission in relation to common carriers. " The act is set forth in full in the margin. 2 The ninth section of that act creates a com- mission, to be known as the "Railroad and Warehouse Commission of the State of Minnesota, "to consist of three persons, to be appointed by the governor by and with tlie advice and consent of the senate. The first section of the act declares that its pro- visions shall apply to any common carrier "engaged in the transportation of passen- gers or property wholly by railroad, or partly by railroad and partly by water, when both are used under a common con- trol, management, or arrangement, for a carriage or shipment from one place or sta- tion to another, both being within the state of Minnesota." The second secxion declares "that all charges made by any common carrier subject to the provisions of this act, for any service rendered or to be ren- dered in the transportation of passengers or proi)erty as aforesaid, or in connection therewith, or for the receiving, delivering, stoi-age, or handling of such property, shall be equal and reasonable; and every unequal and unreasonable charge for such service is prohibited, and declared to be unlawful. " The eighth section provides that every common carrier subject to the provisions of the act shall print and keep for public inspection schedules of the charges which it. has established for the transportation of property; that it shall make no change therein except after 10 days' public notice, plainly stating the changes prt)posed to be made, and the time when they will go into effect; that it shall be unlawful for it to charge or receive any greater or less compensation than that so established and published for transporting property; that it shall file copies of it« schedules with the commission, and shall notify such commission of all changes pro- posed to be made; that, in case the com- mis.sion shall find at any time that any part of the tariffs of charges so filed and 1 Reversing 37 N. W. Rep. 2 See note at end of case. SMITH, CONST. LAW— 8 782. published is in any respect unequal or un- reasonable, it shall have the power, and it is authorized and directed, to compel any common carrier to change the same, and adopt such charge as the commission " shall declare to be equal and reasonable, " tO' which end the commission shall, in writ- ing, inform such carrier in what respect such tariff of charges is unequal and un- reasonable, and shall recommend what tariff shall be substituted therefor; that, in case the carrier shall neglect for 10 days after such notice to adopt such tariff of charges as the commission recommends, it shall be the duty of the latter to imme- diately publish such tariff as it has de- clared to be equal and reasonable, and cause it to be posted at all the regular stations on the line of such carrier in Min- nesota, and it shall be unlawful thereafter for the carrier to charge a higher or lower rate than that so fixed and published by the commission; and that, if any carrier subject to the provisions of the act shall neglect to pul)lish or file its schedules of charges, or to carry out such recommenda- tion made and published by tbecom mission it shall be subject to a writ of mandHmiis "to be issued by any judge of the sujjreme court or of any of the district courts " of the state, on application of the commission, to compel compliance with the requirements of section 8, and with the reconimendation of the commission, and a failure to com- ply" with the requirements of the inandawvs shall be punishable as and for contempt, and the commlssionmay apply also to any such judge for an injunction against the car- rier from receiving or transporting proper- ty or passengers within the state, until it shall have complied with the requirements of section 8, and with the recommendation of the commission, and for any willful vio- lation or failure to comply with such re- quirements or such recommendation of the commission, the court may award such costs, including counsel fees, by way of penalty, on the return of said writs, and after due deliberation thereon, as ma^^ be just. On the 22d of June, 1887, the Boards of Trade Union of Farmington, Northfield, Faribault, and Owatonna, in Minnesota, filed with the commission a petition in writing, complaining that the Chicago, Milwaukee & St. Paul Railway Company, being a common carrier engaged in the transportation of property wholly by rail- road, for carriage or shipment from Owa- tonna, Faribault, Dundas, Northfield, and Farmington to the cities of St. Paul and Minneapolis, all of those places being with- in the state of Minnesota, made charges for its services in the transportation of milk from said Owatonna, Faribault, Dun- das, Northfield, and Farmington to St. Paul and Minneapolis which were unecjual and unreasonable, in thatitchargedl cents per gallon for the transportation of milk from Owatonna to St. Paul and Minne- apolis, and 3 cents per gallon from Fari- bault, Dundas, Northfield, and Farming- ton to the said cities ; and that such charges were unreasonably high, and sub- jected the traffic in milk between said points to unreasonal)le prejudice and dis- advantage. The prayer of the petition 114 THE P(JLICE POWER. was (hat such rates ho dpc-hircd nnrcasoii- abh\ and thecarrier hoconiixMlcd toclianj^e thosainc, and adopt sm-li rates and cliarges as the ocjinmissiou shouhl deehu-e to be equal and reasonable. A statement of the (•oni|)hiint thus made was forwarded by the eommission on the I'Dtli of June. ISST, to t he i-aihvay company ; and it was called ni)on by the commission, on the -, at the office of the com- mission in St. Paul, on the 18th of Julv, 1887. On the HOth of June, ]8S7. Mr. J. F. Tucker, the assistant general manager <)f the i-ailway company, addressed ji letter from Milwaukee to the secretary of the commission, saying: "I have your favor of tlie :i9th, with complaint as to millc rates l)eing unreasonable and une(inal. They may be une(]ual, if unreasonable. They are unreasonably low for the service ])erfoi'med, — by passenger train, — and are 25 ]»er cent, less than the sjrme commodity is cliai-g((l into New York, with longer dis- tances and hundred times larger volume in favor of New York. I am frank to say it is hard to ai)preciate com]»laints from boards of trade that 1-10 of a cent i)er gal- lon on milk handled on i)assenger train one mile is unreasonable. With what is the comi)arison made that enables such a con- clusion ? It's not tirst-class rates by freight train and was made low to encourage the trade, under the hope and promise that, when the trade were fostered, it would be advanced. This, as usual, has been forgot- ten."' On the i:Uli of July, 1887, at the office of the commission in St. Paul, the company ap])eared by J. A. Chandler, its didy-authoi'ized attorney, and the r>oards of Trade Union by its attorney, and the comriiission proceeded to investigate the coini)laint. An investigation of the i-ates charged by the con)pany for its services in ti-ansporting milk fioni Owatonna, Faribault, Dundas. Northfield, and P'arni- ington, to St. Paul and Minneai)olis, was made by the commission, and it found that the charges of the company for trans- porting milk from Owatonna and Fari- bault to St. Paul and Minneapolis was 3 cents pergallon in lU-galloncans ; thatsuch charges were une(]ual and uni-easonable; and that the comp;iny's tariff of rates for trans])orting milk from (Jwatonna and Faribault to those cities, filed and pub- lished by it as provided by chapiter 10 of the Laws of 1SS7, was une(iual ami unrea- sonable; and thecominission declared that a rate of 2^^ cents per gallon in 10-gallon cans was an egual and reasonable rate for such services. On the 4th of August, 1887, thecommission madea report in writ- ing which included thetindingsof fact up(m which its conclusions were based, its rec- ommendation as to the tariff which should be substituted for the tariff so found to be uneciual and unreason;ible, and also a specification of the rates and charges which it declared to be equal and reasonable. This paper was in the shape of a commu- nication dated at St. Paul, August 4, 1887. signed by the secretary of the commission, aiul addressed to the company. It said : "It appearing, from your schedule of rates and charges for the transportation of milk over and upon the Iowa and Alinnesota division of your road, that you charge, collect, and receive for the transjiortation of milk over and upon said line fiom Owa- tonna and Faribault to the cities of St. Paul and Minneapolis three cents pergal- lon, in ten-gallon cans, and from Dundas, Northheld, and Farmington to said cities of St. Paul and Minneav)olistwoand one-half cents i)er gallon, in cans of like cai)acity, and comijlaint having been made that such rates and charges are nne(]ual aiid unrea- sonable, and that the services performed by you in siich transportation are not rea- sonably worth the said sums charged therefor, and this commission having thei-eupon, ])ursuant to tli*- provisions of section (>iglit of an act entitled 'Ati act to regidfite common carriei's, and creating the railroad and warehouye comndssion of the state of Minnesota, and d(>tiuing the duties of such commission in relation to common carriers,' ap])roved M;irch 7, 1N«S7, exajuined the cause and ]'eas(uiabl(>ness of said complaint, and tinding, ])ursuant to subdivision o of said section, that yoursaid tai'iff of rates, so far as api)ei-tains to the transportation of milk to the cities of St. Paul and Minneai)olisfrom theotIu'ri)laces above named, and inasnuich as said tariff provides foi-, or re(iuires the chai-ging or collection of, a greater com])ensation than two and one-half cents per gallon, is un- reasonable and excessive: therefore said commission recommends and directs that you. the said Chicago. ^Milwaukee «& St. Paul Railway Company, shall alter and change your said s:*he(luleby the adoption and substitution of a rate not to exceed two and one-half cents per gallon for the services aforesaid from the citi(»s of Owa- tonna and Faribault, or either of them, to said St. Paul and .Minneai)olis. The com- n)ission,as at present ad vised. api)roves of the custom and arrangement which, it is informed, has been adoi)ted and is now in use by the Minnnesota c^ Northwestern R. R.Co., of collecting two and one-half cents pel' gallon on all milk trans|)oi-tereme court of the state for a writ of iiuni(hunus to compel the comi>any to comi)ly with the recommendation made to it by the commission, to change its tarilf of rates on milk from Owatonna and Faribault to St. Paul and Minneapolis, and to adopt the rates declared by the commission to be equal and reasonable. The application set forth the proceedings hereinbefore de- tailed; that the company had refused to carry out the recommendation so made, l)ublished, and posted by the commission; that it continued to charge 3 cents per gal- lon for the transportation of milk in 10- gallon cansfrom Owatonnaand Faribault 1o St. Paul and Minneapolis; that said charge was unequal, unreasonable, and excessive; that 2% cents per gallon for the transportation by it of milk in lO-gallon cans from Owatonna and Faribault to St. Paul and Minneapolis was the maximum reasonable charge for the service; that any rate therefor in excess of 2% cents per gallon in 10-gallou cans was uneijual, ini- i-easonable, and excessive; that 3 cents per gallon in 10-gallon cans was a higher rate than was charged for the same distances on passenger trains by any expi-ess com- pany or by any other railroad company in Minnesota engaged in traus])orting milk to St. Paul or Minneapolis; that 2)^ cents per gallon in 10-gallon cans was the high- est rate charged for like distances on pas- senger trains by any such company; that the milk transported by the company to St. Paul aild Minneapolis, over its Iowa and ^linnesota division, (extending from ("aluicir, in Iowa, to Ee Roy, in Minnesota, and from Le Roy, through Owatonna. and P'aribault, to St. Paul and Minneapolis,) large quantities of wTiich milk were shiijped from Faribault, Avas so transport- ed by the company on a passenger train which ran daily from Owatonna to St. Paul and Minneapolis; and that the com- pany, by means of such excessive charges, suljjected the traffic in milk at Faribaiilt and Owatonna to undue and unreasona- ble prejudice and disadvantage. Thereup- on an alternative writ of innndmuns was issued by the court, returnable before it on the 14th of December, 1887. On the 23d of December, 1887, the company tiled its i-eturn to the alternative writ in which it set up: (1 ) That it was not competent forthe leg- islature of Minnesota to delegate to a com- mission a power of lixing rates for trans- portation, and that the act of March 7, 1887, so far as it attempted to confer upon the commission power to establish rates for the transportation of freight and pas- sengers, was void under the constitution of the state. (2) That the company as the owner of its railroad, franchises, equip- ment, and api)urtenances, and entitled to the possession and beneficial use thereof, was authorized to establish rates for the transi)ortation of freight and passengers, subject only to the provision that such rates should be fail- and reasonable; that the establishing of such rates by the state against the will of the company was j>ro tiiuto a takuig of its property, and depriv- ing it thereof, without due process of law, in violation of section 1 of article 14 of the amendments to the constitution of the United States; and that the making of the order of October 13, 1S87, was pvo tnnto a, taking and dei)riving the company of its property without due process of law. in violation of said section 1, and therefore void and of no effect. (3) That the rate of 3 cents per gallon as a freight for carrying- milk in 10-galloii cans on passenger trains from Owatonna and Faribault, respective- ly, to St. Paul and Minneapolis, was a rea- sonable, fail', and ju.st rate; that the rate of 2'/^ cents per gallon, in 10-gallon cans, so fixed and established by tiie commis- sion, was not a reasonable, fair, or just compensation to thecompany forthe serv- ice rendered ; and that the establishing of such rate by the commission against the ^^ ill of the company was pro tnnto a tak- ing of its property witlKmt due process of law, in violation of said section 1. The case'came on forbearing upon the alterna- tive writ, and the return, and the compa- ny applied for a reference to take testimo- nv on the issue raised by the allegati(jns in the api)lication for the writ and the re- turn thereto, as to whether the rate Hxed by the commission was reasonable, fair, and just. The court denied the applica- tion for a reference, and rendered judgment in favor of the relator, and that a peremp- tory writ of inHudamus issue. An applica- tion for a, reargument was made and de- nied The terms of the T)eremptory writ were directed to be that the company com- plv with the requirements of the recom- meudatiou and order made by the commis- sion on the 4th of August, 18S7, and change its tariff of rates and charges forthe trans- portation of milk from Owatonna and Faribault to St. Paul and Minneapolis, and substitute therefor the tariff recommend- ed published, and posted by the commis- sion, to-wit,the rate of 2J4 cents per gallon of milk in 10-gallon cans from Owatonna and Faribauitto St. Paul and Minneapolis, being the rates published by the commis- sionTttn^l declared to he equal and reason- able therefor, (^osts were also adjudged against th.ecompany. To review this jndg- nrent the company has brought a writ of error. The opinion of the supreme court is i-e- ported in 38 Minn. 281. 37 N. W. Rep. 782. In it the court, in the first place, construed the statute on the question as to whether the court itself had jurisdiction to entertain the proceeding, and held that it had. Of course, we cannot review this decision. 116 THE POLICE POWER. It next proceeded to consider the question as to tlie nature and extent of the i^owcrs granted to the commission by the statute in the matter of fixing the rates of cliarges. On that subject it said: "It seems to us that, if language means anything, it is perfectly evident that the expressed inten- tion of the legislature is that the rates rec- ommended and publislied by the comniis- sion. assuming that they have prf)ceeded in the manner pointed out by the act. should be not simply advisory, nor mere- ly prinin fnoie equal and reastmalde, but final and conclusive as to what are lawful or equal and reasonable charges; that, in proceedings to compel compliance with the rates thus published, the law neither con- templates nor allows any issue to be made or inquiry had as to their ecpiality and rea- sonal)leness in fact. Under the provisions of the act, the rates tlnis published are the only ones that are lawful, and therefore, in contemplation of law, the only ones that are equal and reasonal)le; and hence, in proceedings like the present, there is. as said before, no fact to traverse, except the violation of the law in refusing compliance "with the reconimendfitions of the corn mis- sion. Indeed, tlie language of the act is so plain on that point that argument can add nothing to its force. " It then proceeded to examine the qnesion of the validity of the act under the constitution of .Minne- sota, as to whetlier the legislature was au- thorized to confer upon the commission the powers given to the latter by the stat- ute. It held that, as the legislature had the power itwelf to regulate charges by railroads, it could delegate to a commlssi(jn the power of fixing such charges, and ccnild make the judgment or determination of thecommission as to wliat « ere reasonable charges final and conclusive. The Chicago, Milwaukee & St. Paul Rail- way Company is a corporation organized nnder the laws of Wisconsin. The line of railroad owned and operated by it in the present caseextendsfrom Calmar, in Iowa, to LeRoy,in Minnesota, and from LeRoy, througii Owatonna and Faribault, to St. Paul and Minneapolis; the line from Cal- mar to St. Paul and INIinneapolis being known as the "Iowa and Minnesota Divis- ion, " and being wholly in Minnesota fi'om the point where itcrosses the state line be- tween Iowa and Minnesota. It was con- structed nnder a charter granted by the territory of Minnesota to the Minneapolis & Cedar Valley Raib-oad Company, by an act approved March 1, 1856, (Laws 185(5, c. 16fi. p. 325,) to construct a railroad from the Iowa line, at or near the crossing (jf said line by the Cedar river, through the valley of Strait river to Minneapolis. Sec- tion 9 of that act provided that the direct- ors of the corpf)rati()n should have power to make all needful rules, regulations, and by-laws touching "the rates of toll, and the manner of collecting the same;" and section 13, that the comi)any should have power to unite its railroad with any other railroad which was then, or thereafter might be, constructed in the territory of Minnesota, or adjoining states or territo- ries, and should have power to consolidate its stock with any other company or com- panies. By an act passed March 3, 1857, c. on, (11 St. 195,) the congress of the United States made a grant of land to the tei-ri- tory of ^Minnesota, to aid in constructing certain railroads. By an act of the legis- lature of the territory approved May 22, 18.57, (Laws 1857, Extra Sess. 20,) a portion of such grant was (conferred upon the Min- neapolis & Cedar Valley Railroad Comi)any. Subsequently, in i860, the state of Minne- sota, by proper proceedings, became the owner of the riglits, francliises, and prop- erty of that company. By an act ap- proved March 10, 1.SG2, c. 17, (Sp. Laws 1862, p. 226,) the state incorporated the Minneapolis, Farib-ault & Cedar Valley Railroad Company, and conveyed to it all the franchises and property of the Minne- apolis & Cedar Valley Railroad Comi)any which the state had so acquired; and, by an act approved February 1, 1864, (Sp. Laws 1S64, p. 164,) the name of the Minne- apolis, Faribault & Cedar Valley Railroad Company was changed to that of the Min- nesota Central Railway Company. That couipany constructed the road from Min- neapolis and St. Paul to Le Roy, in Minne- sota; and the road from Le lioy to Cal- mar, in Iowa, and thence to McGregor, in the latter state, was consolidated with it. In August, 1867, the entire road from Mc- Gregor, by way of ('alinar, Le Roy, Austin, Owatonna, and Faribault, to St. Paul and Minneapolis, wag conveyed to theChicago, Milwaukee & St. Paul Railway Company, which succeeded to all the franchises so granted to the Minneapolis & Cedar Valley Railroad Company. It is contended for the railway company that the state of Minnesota is bound by the contract made by the territory in the charter granted to the Minneapolis & Cedar Valley Railroad Company ; that a contract existed that the company should have the power of regulating its rates of toll ; that any legislation by the state infringing up- on that right imi)airs the obligation of the contract; that there was no provision in the charter or in any general statute re- serving to the territory or to the state the right to alter or amend the charter; and that no subsequent legislation of the terri- tory or of the state could deprive the direct- oi's of the company of the power to fix its rates of toll, subject only to the general provision of law that such rates should be reasonable. But we are of opinion that the general language of the ninth section of the charter of the Minneapolis & Cedar Valley Railroad Company cannot be held to constitute an irrepealablecontract with that company that it should have the right for all future time to prescribe its rates of toll, free from all control by the legislature of the state. It was held by this court in Railroad Co. v. Miller, 132 U.S. 75, lOSup.Ct. 34, in accordance with a long course of de- cisions both in the state courts and in this court, that a railroad corporation takes its charter, containing a kindred provision with that in question, subject to the gen- eral law of the state, and to such changes as may be made in such general law, and subject to future constitutional pi'ovisions and future general legislation, in the ab- sence of any ]irior contract with it exempt- ing it from liability to such future general legislation in respect of the subject-matter POLICE POWER OE THE STATES. 117 involved ; and that exemption from fnture e,-eneral legislation, either bj^ a constitu- tional provision or by an act of the legis- lature, cannot be admitted to exist unless it is given expressly, orunless it follows by an implication equally clear, with express words. There is nothing- in the mere grant of power, by section 9 of the charter, to the directors of the company, to make needful rules and regulations touching the rates of toll and the manner of collectingthe same, which can be properly interpreted as au- thorizing us to hold that the state parted with its general authority itself to regu- late, at any time in the future when it might see fit to do so, the rates of toll to oe collected bv the company. In Stone v. Trust Co.. 116 U. S. 807, 32.5, 6 Sup.Ct. Rep. 3o4. 388,1191, the whole subject is fully con- sidered, the authorities are cited, and the conclusion is arrived at that the right of a state reasonably to limit the amount of charges by a railroad company for the transportation of persons and property within its jurisdiction cannot be granted away by its legislature unless bywords of positivegrant, or words equivalent in law ; and that a statute which grants to a rail- road company the right," from ti :ne to time, to fix, regulate, and receive the tolls and charges by them to be received for trans- portation," does not deprive the state of its power, wixhin the limits of its general authority, as controlled by the constitu- tion of the United States, to act upon the reasonableness of the tolls and charges so fixed and regulated. But, after reaching this conclusion, the court said, (116 U. S. 331, 6 Sup. Ct. Rep. 345 :) " From what has thus been said, it is not to be inferred that this power of limitation or regulation is itself without limit. This power to regu- late is not a power to destroy, and limita- tion is not tlae equivalent of confiscation. Under pretense of regulating fares and freights, the state cannot recjuire a rail- road corporation to carry persons or prop- erty without reward; neither can it do that which in law amounts to a taking of private property for public use without just compensation, or without due process of law. " There being, therefore, no con- tract or chartered right in the railroad company which can prevent the legislature from regulating in some form the charges of the company for transportation, the question is whether the form adopted in the present case is valid. The construction put upon the statute by the supreme court of Minnesota must be accepted by this court, for the purposes of the present case, as conclusive, and not to be re-examined here as to its propriety or accuracy. The supreme court au tliori- tatively declares that it isthe expressed in- tention of the legislature of Minnesota, by the statute, that the rates recommended and published by the commission, if it pro- ceeds in the manner pointed out by the act, are not simply advisory, nor merely prima, facie equal and reasonable, but final and conclusive as to what are equal and reasonable charges; that the law neither contemplates nor allows any issue to be made or inquiry to be had as to their equality or reasonableness in fact; that, under the statute, the rates published by the commission are the only ones that are lawful, and therefore, in contempla- tion of law, the only ones that are equal and reasonable; and that, in a proceed- ing for a mandamjjs under the stat- ute, there is no fact to traverse except the violation of law in not complying with the recommendations of the commission. In other words, although the railroad company is forbidden to establish rates that are not equal and reasonable, there is no power in the courts to stay thehands of the commission, if it chooses to estab- lish rates that are unequal and unreason- able. This being the construction of the statute by which we are bound in consid- ering the present case, we are of opinion that, so construed, it conflicts with the constitution of United States in the par- ticulars complained of by the railroad company. It deprives the company of its right to a judicial investigation, by due process of law, under the forms and with the machinery provided by the wisdom of successive ages for the investigation judi- cially of the truth of a matter in contro- versy, and substitutes therefor, as an ab- solute finality, the action of a railroad commission which, in view of the powers conceded to it by the state court, cannot be regarded as clothed with judicial func- tions, or possessing the machinery of a court of justice. Under section 8 of the statute, which the supreme court of Min- nesota says is the only one which relates to the matter of the fixing hy the commis- sion of general schedules of rates, and wnicn section, it says, fully a'ad exclu- sively provides for that subject, and is complete in itself, all that the commission is required to do is, on the filing with it by a railroad company of copies of its schedules of charges, to "find" that any part thereof is in any respect unequal or unreasonable, and then it is authorized and directed to compel the company to change the same, and adopt such charge as the commission "shall declare to be equal and reasonable;" and to that end it is required to inform the company in writ- ing in what respect its charges are un- equal and unreasonable. No hearing is provided for; no summons or notice to the company before the commission has found what it is to find, and declared what it is to declare; no opportunity provided for the company to introduce witnesses be- fore the commission,— in fact, nothing which has the semblance of due process of law; and although, in the present case, it appears that, ijrior to the decision of the commission, the company aptieared before it by its agent, and the commission inves- tigated the rates charged by the company for transporting milk, yet it does not ap- pear Avhat the character of the investiga- tion was, or how the result was arrived at. By the second section of the statute in question, it is provided that all charges made by a common carrier for the trans- portation of passengers or property shall be equal and reasonable. Under this pro- vision, the carrier has a right to make equal and reasonable charges for such transportation. In the present case, the return alleged that the rate of charge fixed by the commission was not equal or re^ J18 THE POLICK POWKi;. soiiable. and the supnMiie coui't liold that the statute deiirived tlie company of the i-ij;ht to show that jndicially. Tlie ques- tion of the reasonabh'iicss of a rate of eharj;e for transixirtatiou by a railroad eonii)any, involving;', as it does, the ele- ment of reasonableness both as res^'ards the company and as ivsards the publie, is eminently a (juestion for judicial investi- gation, requiring- due process of law for its determination. If the company is do- priv(>d of the power of charjiinj;- reason- able rates for the use of its property, and such deprivation takes place in the ab- sence of an in vestiji,ation by judicial ma- chinery, it is deprived of the lawful use of its property, and thus, in substance and effect, of the i)roperty itself, without due piocfss of law, and in violation of tlie con- stitution of the Fnited States; and, in so far as it is thus dcpi-ived, while other per- sons are i)ermitted to receive reasonable profits ui)on their invested cai)ital, the company is depT-i\ed of the ecpial protec- tion of thelaws. It is pi-ovided bysection 4 of ai-ticle 10 of the constitution of Min- nesota of ISaT, that "lands may be taken for i)ul)lic way,forThe jinrpose of <;'i-antinff to any corporation the franchise of way for public use," and that "all corpora- tions, beins' common carriers, enjoying the riiiht of way in pursuance to the pro- visions of this section, shall be bound to carry the miner-il, a.ii,i'icultural, and other productions ami manufactures on equal and r(>;isonable terms." It is thus per- ceived that thu provision of section 2 of the Slat ute in (luestion is one enacted in conformity with the constitution of Min- nesota. The issuin.i;' of the i)eremi)tory writ of iij;ifi(I;iiiius in this cas(> was, therefore, un- lawful, because in violation of the consti- tution of the rnited States; and it is neces- sary that the relief adnnnistered in favor of the i)laintiff in error slutuld be a rever- sal of the jndj>inent of the suprt'me court award inj;- that writ, and an instruction for further proceedings by it not incon- sistent with the opinion of this coui-t. In view of the opini(jn deli v(>red by thatcourt, it may be impossible Un- ;\uy hirlher pro- c<>edin.n-s to be taken (jther tjian to dismiss the ])roceeding for a itinndnunis, if the court should adhere to its opinion that, vindei- the statute, it cannot investigate judicially the reasonableness of the rates Jixed by the comunssion. Still, the (pies- tion will be openfoi- review ; and the judg- ment of this court is that the judgment of the s\ii)reme court of Minnesota, entered ^lay 4, ISNN. awai-ding a i)eremptory writ of ni;in(hinjus \u this case, be reversed, and the case be remanded to that court, with an insti'uction for further i)roceedings not inconsistent with the opinion of this conrt. BHADLEY, dissent. GRAY, and LAiMAK, .IJ., MILLER, J. 1 concur with some hesita- tion in the judgment of the court, but wish to make a few suggestions of the principles which I think should govern this class of (lU(>stions in the courts. Not desiring to make a dissent, nor a prolonged argu- ment in favor of any views 1 may have, I will state tliem in the form of ]»roposi- tlons. 1. In regard to the business of common carriers limited to points within a singh; state, that state has the legislative i)ower to establish the rates of comjjensation for such carriage. 2. The power which the legislature has to do this can beexercised through a com- mission winch it may authori>ie to act in the matter, such as the one ap])ointed by the legislature of Minnesota by the act now^ under consideration. 3. Neither the legislature, nor such com- mission acting under the authority of the legislature, can establish arbitrarily, and without regard to justice and right, a taiift of r;jtes for such transportation which is so unreasonable as to practically destroy the value of property of persons engaged in the cari'ving business, on the one hand, ncjr so exoi-bitant and exti-ava- gant as to be in utter disregard of the rights of tlie i>ublic for the use of such transpoi-tation, on the other. 4. In either of these classes of cases there is an ultimate remedy by the parties ag- grieved, in the courts, for relief against such oppressive l(>gislation, and esiiccially in the courts of the Tinted States, where the tariff of i-ates established either by the legislature or by thecomnnssion is such as to deprive a party of his i)roperty withoxrt due process of law. 5. r>ut until th(> judiciar3' has been ap- pealed to, to of judicial relief against the tariff of rates established by the legislature, or by its commission, is by a bill in chancery assei-t- ing its unreasonable character, and its conflict with theconstitutiou of the I'nited States, and asking a decree of court for- bidding thecoi-poiation from exacting such fare as excessive, or establishing its right to collect the rates as being within the limits of ;i just compensation for the serv- ice rendered. 7. That until this is done it is not com- petent for each individual having dealings with the carrying corporation, or for tiie cori)oration v\ ith regard to each individ- ual who (U'Uiands its services, to raise a contest in the courts o\er The (piestions which ought to be settl(>d in this g(>neral and conclusive method. •S. Rut in the present case, where an ap- plication is made to the supreme court of the state to comi)el the common carriers, namely, the railrcjad companies, to per- form the services which their duty recpiires them to do for the general public, which is e(iuivalent to establishing by judicial proceeding the reasonableness of the charges fixed by the commissiiui, I thiidv the coui-t has the same right atul duty to inciuire into the reasonableness of thetariff of rates established by the commission, be- fore granting such relief, that it would have if called ui)on so to do by a bill iu chancery. I^CSLICE PUWEli OF TIIK STATES. 119 9. I do not agree that it was necessary to the validity of the action of thecommis- }-'ivcn to all coninion carriers interested in the rates to be established, nor to any par- ticular one of them, any more than it would have been necessary — which 1 iiiink it is not — for the legislature to have f>-iven such notice if it had established such rates by legislative enactment. 10. But when the question becomes a ju- dicial one, and the validity and justice of these rates are to be established or rejected b.\ the judgment of a court, it is necessary that the railroad corporations interested in the fare to be considered shoiild have notice, and have a right to be heard on the question relating to such fare, which I have pointed out as judicial questions. For the refusal of the supreme court of Minnesota to receive evidence on this sub- ject, 1 think the case ought to be rever.^ed on the ground that this is a denial of due process of law in a proceeding which takes tlie pi"opert3^ of the compMuy ; and, if this be a just construction of the statute of ]\]innesota, it is for that reason void. BRADLEY, J., (dissenting.) I cannot agree to the decision of tlie court in this case. It practically overrules Munn v. Illi- nois, 04 U. S. llo, and the several railroad cases that were decided at the same time. The .governing principle of those cases Avas tliat the regulation and settlement of the fares of railroads and other public ac- commodations is a legislative prerogative, and not a judicial one. This is a pi-inciple which 1 regard as of great impt)rtance. When a railroad company is chartered, it is for the purpose of performing a duty which belongs to the state itself. It is chartered as an agent of the state for fur- nishin.g public accommodation. The state might build its railroads, if it saw tit. It is its duty and its prerogative to provide means o* intercommunication between one part of its territory and another. And this duty is devolved upon the legislative department. If the legislature commis- sions i)i-is"ate parties, whether cori)ora- tions or individuals, to perform this duty, it is its prerogative to fix the fares and freig'its Avhich they may charge for their services. When merely a road or a canal is to be constructed, it is for the legisla- ture to fix the tolls to be paid by those who use it; when a compan.v is chartered, not only to build a road, but to carry on pub- lic transi)ortation upon it, it is for the leg- islature to fix the chnrges for such trans- l)ortation. But it is said that all charges should be reasonable, and that none but reasonable chai-ges can be exacted ; and it is urged that what is a reasonable charge is a ju- dicial (luestion. On the conti-ary, it is ])re-eminently a legislative one, involving considerations of policy, as well as of re- muneration ; and is usually determined by the legislature, by fixing a maximum of charges in the charter of the conii)any, or afterwards, if its hands are not tied by contract. If this maxim\im is not exceed:* ed, the courts cannot interfere. When the rates are not thus determined, they are left to the discretion of the company, subject to the express or implied condition that they shall be reasonable — express, when so declared by statute; implied by the common law, when the statute is silent; and the common law has effect by virtue of the legislative will. Thus the legisla- ture either fixes the charges at rates which it deems reasonable, or merel.v declares that they shall be reasonable; and it is only in the latter case, where what is rea- sonable is left open, that the courts have jurisdiction of the subject. 1 rei)eat, when the legislature declares that the charges shall be reasonable, or, which is the s-ime thing, allows the common law rule to that eflVct to prevail, and leaves the matter there, then resort may be had to the courts to in(iuire judicially whether the charges are reasonable. Then, and not till then, is it a judicial question. But the legislature has the right, and it is its prerogative, if it chooses to exercise it, to decbtre what is reasonable. This is just where J differ from the majority of the court. They sa.y in effect, if not in terms, that the final tribunal of arbitrament is the judiciary. 1 say it is the legislature. 1 hold thatitisalegislative question, not a judicial (jne, unless the legislature or the iaAV (which is the same thing) has made it judicial by pi-escribing the rule that the charges shall be reasonable, and leaving it there. It is always a delicate thing for the courts tomake an issue with thelegislati^'e department of the government, and they should never do so if it is ])ossible to avoid it. By the decision now made, we declare, in effect, that the judiciary, and not the legislature, is the final arbiter in the regulation of fares and freights of rail- roads, and the charges of other public ac- commodations. It is an assumption of authority on the part of the judiciary which, it seems to me, with all due defer- ence to the judgment of my brethren it has no right to make. The assertion of juris- diction by this court makes it the duty of every court of general jurisnt on the jjai't of the former to do injustice. The Ijoard may have erred ; but if they did, as the matter was AAdthiu their riglitful jurisdiction, their decision was final and conclusive, unless tlieir pvo- ceedings could be impeached for fraud. Deprivation of property by mere arbitrary power on the iiart of the legislature, or fraud on the part of the commission, are *the only grounds on which judicial relief may be sought against their action. There \A'as, in truth, no deprivation of POLICE POWER OF THE STATES. 121 property In tLiese cases at all. There was merely a regulation as to the enjoyment of property, made by a strictly competent authority, in a matter entirely within its jurisdiction. It may be that our h'j2:is- latures are invested with too much pow- er, open, as they are, to influences so dan- gerous to the interests of individuals, cor- porations, and society. Bnt such is the constitution of our republican form of government, and we are bound to abide by it till it can be corrected in a legitimate way. If our legislatures become too arbi- trary in the exercise of their powers, the people always have a remedy in their hands. They may at any time restrain them by constitutional limitations. But, so long as they remain invested with the powers that ordinarily belong to the leg- islative branch of government, they are en- titled to exercise those powers; among which, in my judgment, is that of the reg- ulation of railroads and other public means of intercommunication, and the burdens and charges which those who own them are authorized to impose upon the public. I am authorized to say that Mr. Jus- tice Gray and Mr. -Justice Lamar agree with me in this dissenting opinion. NOTE. Chapter 10. An act to regulate common carriers, and creating the railroad and warehouse com- mission of the state of Minnesota, and defining the duties of such commission in relation to common carriers. Be it enacted by the legislature of the state of Minnesota : Section 1. (a) That the provisions of this act shall apply to any common carrier or carriers en- gaged in the transportation of passengers or prop- erty wholly by railroad, or partly by railroad and partly by water, when both are used under a com- mon control, management, or arrangement, for a carriage or shipment from one place or station to another, both being within the state of Minnesota: provided, that nothing in this act shall apply to street railways or to the carriage, storage, or handling by any common carrier of property, free, or at reduced rates, for the United States, or for the state of Minnesota, or for any municipal gov- ernment or corporation within the state, or for any charitable purpose^ or to or from fairs and expo- sitions, for exhibition thereat, of stock for breed- ing purposes, or to the issuance of mileage, excur- sion, or commutation passenger tickets, at rates made equal to all, or to transportation to stock shippers with cars, and nothing in the provisions of this act shall be construed to prevent common carriers, subject to the provisions of this act, from issuing passes for the free transportation of pas- sengers, (h) The term "railroad"as used in this act shall include all bridges or ferries used or op- erated in connection with any railroad, and also all the road in use by any cox'poration operating a railroad, whether owned or operated under a con- tract, • agi'eement or lease ; and the term " trans- portation" shall include all instrumentalities of shipment or carriage. Sec. 2. (a) That all charges made by any com- mon carrier, subject to the provisions of this act, for any service rendered or to be rendered in the transportation of passengers or property as aforesaid, or in connection therewith, or for the receiving, delivering, storage, or handling of such property, shall be equal and reasonable; and ev- ery unequal and tmreasonable charge for such service is prohibited, and declared to be unlaw- ful : provided, that one car-load of freight of any kind or class shall be transported at as low a rate per ton, and per ton per mile, as any greater num- ber of car-loads of the same kind and class, fi'om and to the same points of origination or destina- tion, (b) It shall be unlawful for any common carrier subject to the provisions of this act to make or give any unequal or unreasonable prefer- ence or advantage to any particular person, com- pany, fu'm_, corporation, or locality, or any partic- ular description of traffic, in any respect whatso- ever, or to subject any particular person, compa- ny, fii-m, corporation, or locality, or any particular description of traffic, to any unequal or unreason- able prejudice or disadvantage in any respect whatsoever. Sec*. 3. (a) That all common carriers subject to- the provisions of this act shall, according to their respective powers, provide, at the point of connection, crossing or intersection, ample facil- ities for transferring cars, and for accommodating and transferring passengers, and traffic of all kinds and classes, from their lines or tracks to those of any other common carrier whose lines or tracks, may connect with, cross, or intersect their own, and shall afford all equal and reasonable facilities- for the interchange of cars and tx-affic between their respective lines, and for the receiving, for- wai-ding, and delivering of passengers and prop- erty and cars to and from their several lines and' those of other common car'riers connecting there- with, and shall not discriminate in their rates and charges between such connecting lines, or on freight coming over such lines ; but this shall not be coiistrued as requiring any common carrier to use for another common carrier its tracks, equip- ments, or terminal facilities without reasonable compensation, (h) That it shall be unlawful for- any common carrier subject to the provisions of this act to enter into any combination, contract, or agreement, expressed or implied, to prevent, ■ by change of time or schedule, or by carriage in- different cars, or by any other means or devices, the carriage or freight from being continuous, from the place of shipment to the place of destina- tion; and no bi'eak of bulk, stoppage, or inteiTup- tion made by such common carrier shall prevent the carriage of freight from being treated as one continuous carriage from the place of shipment to the place of destination, unless such break, stop- page, or interruption was made in good faith, for- some necessary purpose, and without any intent to avoid or unnecessarily interrupt such continu- ous carriage, or to evade any of the provisions of this act. (c) Every common carrier operating a railway in this state shall, without unreasonable delay, furnish, start, and run cars for the trans- portation of persons and property which, within a. reasonable time theretofore, is offered for transpor- tation at any of its stations on its line of road, and at the junctions of other railroads, and at such stopping places as may be established for receiv- ing and" discharging passengers and freights, and shall take, receive, transport, and discharge such passengers and property at, from, and to such sta- tions, junctions, and places, on and from all trains advertised to stop at the same for passengers and freights, respectively, upon the due payment, or- tender of payment, of tolls, freight, or fare there- for, if such payment is demanded. Every such common carrier shall permit connections to be made and maintained in a reasonable manner with its side tracks to and from any warehouse, eleva- tor, or manufactory, without reference to its size or capacit3^: provided, that this shall not be con- strued so as to require any common carrier to con- struct or furnish any side track off from its own land: provided further, that, where stations are- ten (10) miles or more apart, the common carrier, wheii required to do so by the railroad and ware- house commissioners, shall construct and maintain a side track for the use of shippers between such stations. (cZ) Whenever any property is received by any common carrier, subject to the provisions. of this act, to be transported from one place to an- other within this state, it shall be unlawful for- such common carrier to limit in any way, except as stated in its classification schedule hereinafter provided for, its common-law liability with ref- erence to such property while in its custody as a common carrier, as hereinbefore mentioned. Such^ liability must include the absolute responsibility THE roLK'E roWEK. of the common carrier for the acts of its ajients in relation to such property. Sec. 4. That it shall be unlawful for any com- mon carrier subject to the provisions of this act to enter into any contract, agreement, or combination with any other common carrier or cai-riei's for the division or pooliu).? of business of different and comi)otinK railroads, or to divide between them the atiKi'eaate or net proceeds of the earnings of sucli railroads, or any portion thereof; and, in case of an agreement for the pooling of their busi- ness aforesaid, each day of its continuance shall be deemed a separate otfense. • Sec. 5. That, if any common carrier subjec-t to the provisions of this act shall, directly or in- direc-tly. by any special rate, rebate, di'awback, or other device, charge, demand, collect, or receive from any person or persons a greater or less com- pensation for any service rendered, or to be ren- dered, in the transportation of passengers or jjrop- erty subject to the provisions of this act than it chai'ges. demands, collects, or receives from any other jjerson or persons for doing fur hiin or theiii a like and i-onteniporaneous service in the trans- portation of passengers or property, such common carrier shall be deemed guilty of unjust discrim- ination, which is hereby prohibited, and declared to be unlawful. Sec. 0. That it .shall be unlawful for an.v com- mon carrier subject to the provisions of this act to charge or receive any greater compensation for the transportation of passengers, or of like kind or classandquantity of property, for a shorter than for a longer distance over the same line, — the shorter being inc-luded within the longer distance; but this shall not be construed as authorizing any common carrier subject to the provisions of this act to charge or receive as gn^at compensation for a shorter as for a longer distance : jjrovided, how- ever, that, upon application to the commission ap- pointed under the provisions of this ac-t, such com- mon carrier may, in special cases, after investi- gation by the commissioners, be authorized to charge less for longer than for shorter d istances, for the transportation of passengers or property ; and the commission may from time to time lu-escribe the extent to which such designated common car- rier may be relieved from the operation of this section of this act. Sec. 7. ((I ) That it shall be unlawful for any common carrier subject. to the provisions of this act to cViarge or i-eceive any greater compensation per ton per mile, for the contemporaneous trans- jjortation of the same class of freight, for a longer than for a shorter distance over the same line, in the same general dii-ection. or from the same orig- inal point of departui e. or to the sanH> point of arrival ; but this shall not be construed as author- izing any common carrier subject to the provisions of this act to c-harge as high a rate per ton per mile for a longer as for a shorter distance, (h) Whenever any railway compariy doing business in this state .shall be unable, from any reasonable cause, to furnish cars at any railway station or .side track, in accordance with the demands made by all persons demanding cai's at such stations or side tracks for the shipment of gi-ain or other freigjit. such cars as are furnished shall be divid- ed as equally as may be among the applicants un- til each shipper shall have received at least one car, when the balance shall be divided ratably in proportion to the amount of daily receipts of grain or other freight to each .shipper, or to the amount of gi-ain offered at such station on side tracks. (c) There shall in no case be more than one ter minal charge for switching or transfeiring any car, whether the same is loaded or empty, within the limits of any one city or town. If it is necessary that any car pass over the tracks of more than one company, within such city or town limits, in or- der to reach its final destination, or to be returned therefrom to its owner or owners, then the company first switching or ti-ansferring such car shall be entitled to receive the entire charge to be made therefor, and shall be liable to the company or companies doing the subsequent switching or ti-ansferring thereof for its or their reasonable and equitable share of the compensation i-eceived; and, if tlie companies so jointly interested therein cannot agree upon the share thereof which each is entitled to receive, the same shall be determined by the board of railroad and warehouse commis sioners, whose decision thereon shall be final and conclusive upon all parties interested; and the said board are authcu'ized to establish such rules — I'egulations — in that behalf as to them may seem just and reasonable, and not in conflict with this act. Sec. 8. () days' public notice, which notice shall plainly state the changes proposed to be made in the schedules then in force, and the time when the changed schedules will go into effect; and the proposed changes will be shown by pi'lnting new schedules, or shall be plainly in dicated upon the schedules in force at the 1:lnie, and kept for public inspection, (c) And, when any common carrier shall have established and pviblished its classifications, rates, fares, and charges in compliance with the pi'ovisions of this section, it shall be unlawful for such common car- rier to charge, demand, i-ollect, or receive from any perscni or pei-sons a greater or less compensa tlon for the transportation of passengers or prop- erty, or for any service in connection therewith, than is specified in such published schedule of classifications, rates, fares, and charges as may at the time be in force, (d) Every common carrier subject to the provisions of this act shall file with the commission hereafter provided for in section ten (10) of this act copies of its schedules of clas- sifications, rates, fares, and charges which have been established and jmblished in compliance witli the requirements of this section, and shall promptly notify said commission of all changes proposed to be made in the same. Every [such] common carrier shall also file with said commis- sion copies of all conti-acts, agreements, or ar- i-angenicnts with other common carriers in relation to any traffic affected by the provisions of this act to which contracts, agreements, or arrangements it may be a party. And, in cases where passen gers or freight pass over lines or routes opei-ated by more than one common carrier, and the several common carriers operating such lines or routes establish joint schedules of i-ates or fares, or charges or classifications for such lines or routes, copies of such joint schedules shall also, in like manner, be filed with said commission. Such joint schedules of rates, fares, charges, and clas- sifications for such lines, so filed as aforesaid, shall also be made public by such common car riers, in the same manner as hereinbefore provid ed for the publication of tariffs upon Its own lines, (c) That, in case the commission shall at any time POLICE rOWER OE THE STATES. 12:] find that any jiart of the tai-iffs of rates, fares, charges, oi' cki.ssiflieations so filed and published as hereinbefore provided are in any rcispeet un equal or unrtnisonable, it shall have the power, and is hereby authorized and directed, to compel any common cari'ier to change the same, and adopt such rate, fare, charge, or classification as said commission shall declare to be equal and reason- able. To which end the commission shall in writ- ing: inform such common carrier in what respect such tariff of I'ates. fares, charges, or classifica- tions are unequal and unreasonable, and shall I'Cc- ommend what tariffs shall be substituted there for. (/) Incase such common cariuer shall neglect or refuse for ten (10) days after such notice to substitute such tariff of rates, fares, charges, or classifications, or to adopt the same as recommend- ed by the commission, it shall be the duty of said commission to immediately publish such tariff of rates, fares, charges, or classifications as they had declaimed to be equal and x'easonable. and cause the same to be posted at all the regular stations on the line of such common carrier in this state ; and thereafter it shall be unlawful for such com mon carrier to charge or maintain a higlier or lowei- rate, fare, charge, or classification than that so fixed and piiblished by said commission. ((/) If any common carrier subject to the provis ions of this act shall neglect or refuse to publish or file its schedule of classiflcations, rates, fares, or charges, or any part thereof, as provided in this section, or if any common carrier shall refuse or neglect to carry out such recommendation made and published by such commission, such common carrier shall be subject to a wTit of mandamufi. to be issued by any judge of the supreme court or of any of the district courts of this state, upon ap- plication of the commission, to compel compliance with the requirements of this section, and with the recommendation of the commission; and fail- ure to comply with the requirements of said writ of mand(tmii>i shall be punishable as and for con- tempt; and the said commission, as complainants, may also apply to any such judge for a Avrit of in- junction against .such common carrier from receiv- ing or transporting property or passengers within this state until such common carrier shall have complied wdth the I'equirements of this section. and the recommendation of said commissiom ; and. for any willful violation or failure to comply with such requirements or such X'ecommendation of said commission, the court may award such costs, in- cluding counsel fees, by waj^ of penalty, on the return of said writs, and after due deliberation thereon, as may be just. Sec. '.). (d) That a commission is hereby cre- ated and established to be known as the " Railroad and Warehouse Commission of the State of Min nesota, " which shall be composed of three Qi) commissioners, who shall be appointed by the gov ernor, by and with the advice and consent of the senate, (h) The commissioners first appointed under this act shall continue in office for the term of one, (1,) two, (2,) and three (3) years, respect- ively, and until their successors are appointed and qualified, beginning w^ith the fii^st (1st) Monday of January, A. D. 1889; the term of each to be des- ignated by the governor, but their successors shall be appointed for a term of three (3) years, and until their successors are appointed and qualified, except that any person cliosen to fill a vacancy shall be appointed only for the unexpired term of the commissioner whom he shall succeed. Any commissioner may be removed by the governor for inefficiency, neglect of duty, or malfeasance in office. Said commissioners shall not engage ii\ any other business, vocation, or emploj'ment while acting as such commissioners. No vacancy in the commission shall impair the right of the remain- ing commissioners to exercise all the powers of the commission, (e) Vacancies occasioned by re- moval, resignation, or other cause shall be tilled by the governoi" as provided incase of original ap pointments, Not moi'e than two of the commis- sioners appointed shall be members of the same political party. No pei'son in the emiJloy of, or holding anj- official relation to, any common car- rier subject to the provisions of this act, or any law of this state, or owning stocks or bonds, or other property thereof, or who is in any manner interested therein, shall enter upon the duties of or hold such office, (il) The decision of a major- ity of the commission shall be considei'ed the de- cision of the commission on all questions arising for its consideration. Before entering upon tlie duties of his offlce, each commissioner shall make and subscribe, and file with the secretary of state, an affidavit in the following form : 'I do solemnly swear (or aflQimi, as the case may be) that I will support the constitution of the United States, and the constitution of the state of Miimesota, and that I will faithfully discharge my duties as a member of the railroad and warehouse commis- sion of the state of Minnesota, according to the best of my ability; and Ifui'ther declare that I am not in the employ of, or holding any official rela- tion to, any common carrier within this state ; nor am I in any manner interested in any stock, bonds, or other property of such common cai'rier. ' (e) Eat'h commissiijner so appointed and qualified shall enter into bonds [to] of the state of Minne- sota, to be approved by the governor, in the sum of twenty ' thousand (30,000) dollars, conditioned for the faithful performance of his duty as a mem- ber of such commission, which bond shall be filed with the secretary of state. (/) The commission shall conduct its proceedings in such a manner as will best conduce to the proper dispatch of business, and to the ends of justice. A majority of the commissioners shall constitute a quoi-um for the transaction of business, but no commis- sioner shall participate in any hearing or proceed- ing in which he has anj' pecuniary interest. Said commissioner may from time to time make or amend such general rules or orders as may be requisite for the order and regulation of proceed- ings before it, including forms of notices and service thereof, which shall conform as nearly as may be to those in use in the courts of this state. Any party may appear before said commission, and be heard in person or by attorney. Every vote and official act of the commission shall be entered of record, and its proceedings shall be public upon the request of either party interested, or at the discretion of the commission. Said com- mission shall have an official seal, which shall be jtidicially noticed. Any member of the commis- sion may administer oaths and affii'mations. The principal office of the commission shall be in the city of St. Paul, where its general sessions shall be held. (;/) Whenever the convenience of the public or of the parties may be promoted, or de- lay or expenses prevented thereby, the commis- sion' may hold special sessions in an.y part of the state, it may, by one or more of the commission- ers, prosecute any inquiry necessary to its duties in any part of the state, into any matter or ques- tion of fact pertaining to the business of any com- mon carrier subject to the provisions of this act. (}i) The Attorney general of the state of Minnesota shall be c.r offlcUi attorney for the commission, and shall give them such counsel and advice as they may from time to time require; and he shall institute and prosecute any and all suits which said railroad and warehouse commission may^eem it expedient and proper to institute; and he shall render to such railroad and wai'ehouse commis sion all counsel, advice, and assistance neces- sary to carry out the provisions of this act, or of any law of this state, according to the true intent and meaning thereof. It shall likewise be the duty of the county attorney of any county in which suit is instituted or prosecuted to aid in the pros- ecution of the same to a final issue upon the re quest of such commission. Said commission are hereby authorized, when the facts in any given case shall in their judgment warrant, to employ any and all additional legal counsel that they may think pi-oper, expedient, and necessary to assist the attorney general or any county attoi'neyin the conduet and prosecution of any suit they may de- termine to bring under the pro\'isions of this act, 01' of any law of this state. Sec. 10. (a) That the commission hereby ere- 124 THE POLICE POWER. ated shall have authority to inquire into the man- agement of the business of all common carriers subject to the provisions of this act, and shall keep itself informed as to the manner and method in which the same is conducted, and shall have the right to obtain from such common carriers full and complete information necessary to enable the commission to perform the duties,' and carry out the objects, for which it was created. In order to enable said commissioners efficiently to perform their duties under this act, it is hereby niade their duty to cause one of their number "to visit the various stations on the lines of each railroad as often as practicable, after giving twenty (20) days' notice of such visit, and the time and" place thereof, in the local newspapers, and at least once in twelve (12) months to visit each county in the state in which is or shall be located a railroad station, and personally inquire into the manage- ment of such I'ailroad business; and, for this pur- pose, all railroad companies and common carriers, and their ofticers and employes, are required to aid and furnish each member of the railroad and warehouse commission with reasonable and proper facilities; and each or all of the members of said commission shall have the right, in his or their official capacity, to pass free on any railroad trains on all railroads in this state, and to enter and remain in, at all suitable times, any and all cars, offices, or depots, or upon the railroads, of any railroad company in this state, in the performance of official duties; and whenever, in the judgment of the commission, it shall appear that any com- mon carrier fails in any respect or particular to comply with the laws of this state, or whenever, in their judgment, any repairs are necessary upon its railroad, or any addition to or change of its stations or station-houses is necessary, or any change in the mode of operating its road or con- ducting its business is reasonable or expedient, in order to promote the security, convenience, and diccommodation of the public, said commission shall inform such railroad company, by a notice thereof in writing, to be served as a summons in civil actions is required to be served by the stat- utes of this state in actions against corporations, certified by the commission's clerk or secretary; and, if such common carrier shall neglect or re- fuse to comply with such order, then the commis- sion may, in its discretion, cause suits or proceed- ings to be instituted to enforce its orders as pro- vided in this act. Sec. 11. (d) That, in case any common carrier subject to the provisions of this act shall do, cause to be done, or permit to be done, any act or thing in this act prohibited or declared to be un- lawful, or shall omit to do any act, matter, or thing in this act required to be done, such com- mon carrier shall be liable to the person or per- sons, party or parties, injured thereby, for the full amount of damages sustained in consequence of any such violation of the provisions of this act, together with a reasonable counsel or attorneys" fee, to be fixed by the court in every case of "re covery, which attorney's fees shall "be taxed and collected as part of the costs in the case, (h) That any person or persons, party or parties, claim- ing to be damaged by the action or non-action of any common carrier subject to the provisions of this act, may either make complaint to the com- mission, as hei-einafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this act, in any district court of this state of competent jurisdic- tion ; but such person or persons shall not have the right to pursue both of said remedies at the same time, (c) In any action brought for the re- covery of damages, the court before which the same shall be pending may compel any director, officer, receiver, trustee, or agent of any corpora- tion or company, defendant in such suit, to at- tend, appear, and testify in such case, and may compel the prodiiction of the books and papers of such corporation or company, party to any such suit; the claim that any .such testimony or evi- dence may tend to criminate the person giving such evidence shall not excuse such witness from tes- tifying, but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding. Sec. 12. That any common carrier, subject to the provisions of this act, or, whenever such com- mon carrier is a corporation, an.y director or offi- cer thereof, or any receiver, ti'ustee, lessee, agent, or person acting for or employed by such corpo- ration, who, alone or with any other corporation, company, person, or party, shall willfully do or cause to be done, or shall willfully suffer or per- mit to be done, any act, matter, or thing in this act prohibited, or declared to be unlawful, or who shall aid or abet therein, or shall willfully omit or fail to do any act, matter, or thing in this act required to be done, or shall cause or willingly suffer or permit any act, matter, or thing so di- rected or required by this act to be done, not to be so done, or shall aid and abet therein any such omission, or shall be g-uilty of any willful infrac- tion of this act, or shall aid or abet therein, shall be deemed guilty of a violation of the provisions of this act, and shall, upon conviction thereof in any district court of the state within the jurisdic- tion of which such offense was committed, be sub- ject to a penalty of not less than two thousand five hundred (2,500) dollars or more than five thousand (5,000) dollars for the fii-st offense, and not less than five thousand (5,000) dollars or more than ten thousand (10,000) dollars for each subsequent of- fense. Sec. 13. (a) That any person, firm, corpora- tion, or association, or any mei'cantile, agricult- ural, or manufacturing society, or any body pol- itic or municipal organization, complaining of anything done or omitted to be done by any com- mon carrier subject to the provisions of this act, in contravention of the provisions thereof, may apply to said commission by petition, which shall briefly state the facts, (h) Whereupon a state- ment of the charges thus made shall be forwarded by the commission to such common carrier, who shall be called upon to satisfy the comi^laint, or to answer the same in writing within a reason- able time, to be specified by the commission. If such common carrier, within the time specified, shall make reparation for the injury alleged to have been done, said carrier shall be relieved of liability to the complainant only for the particu- lar violation of law thus complained of. If such carrier shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable gi'ound for investigating said com- plaint, it shall be the dvity of the commission summarily to investigate the matter complained of in such" manner and by such means as it shall deem proper. No comi)laint shall at any time be dismissed because of absence of direct damages to the complainant. And, for the purposes of this act, the commission shall have power to require the attendance of witnesses, and the production of all books, papers, contracts, agreements, and documents relating to any matter under investi- gation, and to that end may invoke the aid of any of the courts of this state, in requiring the attend- ance of witnesses, and the production of books, papers, and documents, under the provisions of this act. (c) Any of the district courts of this state within the jurisdiction of which such inquiry is carried on shall, in case of contumacy or re- fusal to obey a subpoena issued by the commis- sioners to any common carrier subject to the provisions of this act, or, when such common car- rier is a corporation, to an officer or agent there- of, or to any person connected therewith, if pro- ceedings are instituted in the name of such com- mission as plaintiffs, issue an order requiring such common carrier, officer, or agent, or person to show cause why such contumacy or refusal should not be punished as and for contempt; and if, upon the hearing, the court finds that the inquiry is within the jurisdiction of the commission, and that such contumacy or refusal is willful, and the same is persisted in, such contumacy or refusal shall be punished as though the same had taken place in an action pending in the disti-ict court POLICE POWER OF THE STATES. 125 for any judicial district in this state. The claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying, but such evidence or testimony shall not be used against such persons on the ti'ial of any criminal pro- ceeding. Sec. 14. (a) Whenever an investigation shall be made by said commission, it shall be its duty to make a report in writing in respect thereto, which shall include the findings of fact upon which the conclusions of the commission are based, to- gether with its recommendation as to what repara- tion, if any, should be made by the common car- rier to party or parties who may be found to have been injured; and such findings so made shall thereafter, in all judicial proceedings, be deemed prima facie evidence as to each and every fact found. AH reports of investigations made by the commission shall be entered of recoi-d, and a copy thereof shall be furnished to the party who may have complained, and to any common carrier that may have been complained of, and the record thereof shall be public, (b) If, in any case in which an investigation shall be made by said commission, it shall be made to appear to the sat- isfaction of the commission, either by testimony of witnesses or other evidence, that anything has been done or omitted to be done by any common carrier in violation of the provisions of this act, or of any law cognizable by said commission, or that any injury or damages has been sustained by the party or parties complaining, or by other par- ties aggrieved in consequence of any such viola- tion, it shall be the duty of the commission to forthwith cause a copy of its report in respect thereto to be delivered to such common carrier, to- gether with a notice to said common carrier to cease and desist from such violation, and to make repa- ration for the injury so found to have been done, within a brief but reasonable time, to be specified by the commission; and if, within the time speci- fied, it shall be made to appear to the commission that such common carrier has ceased from such violation of law, and has made reparation for the injury found to have been done, in compliance with the report and notice of the commission, or to the satisfaction of the party complaining, a statement to that effect shall be entered of record by the commission, and the said common carrier shall thereupon be relieved from further liability or penalty for such particular violation of law. (c) But if said common carrier shall neglect or refuse, within the time specified, to desist from such violation of law, and make reparation for the injury done in compliance with the report and notice of the commission as aforesaid, it shall be the duty of the commission to forthwith certify the fact of such neglect or refusal, and forward a copy of its report and such certificate to the attor- ney general of the state for redress and punish- ment as hereinafter provided. Sec. 15. (o) That it shall be the duty of the attorney general to whom said commission may forward its report and certificate, as provided in the next preceding section of this act, when it shall appear from such report that any injury or damages has been sustained by any party or par- ties by reason of such violation of law by such common carrier, to forthwith cause suit to be brought in the district court in the judicial dis- trict wherein such violation occurred, on behalf and in the name of the person or persons injured, against sdch common cari'ier, for the recovery of damages for such injury as may have been sus- tained by the injured party ; and the cost and ex- per=;ps of sxich prosecution shall be paid out of the ai pro_,riatioa hereinafter provided for the uses ana pui^poses of this act. (b) And the said coari shall have power to hear and determine the mat- ter on such short notice to the common carrier complained of as the court shall deem reasonable ; and such notice shall be served on such common carrier, his or its officers, agents, or servants, in such manner as the court shall direct; and said court shall proceed to hear and determine the mat- ter speedily, and without the formal pleading and proceedings applicable to ordinary suits in equity, but in such manner as to do justice in the prem- ises ; and to this end such court shall have power, if it thinks fit, to direct and prosecute, in such mode and by such persons as it may appoint, all such inquiries as the court may think needful to enable it to form a just judgment in the matter of such petition. And on such hearing the report of said commission shall be prima facie evidence of the matters therein stated, (c) And, if it be made to appear to such court on such hearing, or on report of any such person or persons, that the lawful order or requirement of such commission drawn in question has been violated or disobeyed, it shall be lawful for such court to issue a writ of injunction, or other proper process, mandatory or otherwise, to restrain such common carrier from further continuing such violation, or such disobe- dience of such order or requirement of said com- mission, and enjoining obedience to the same; and, in case of any disobedience of any such writ of injunction or other proper process, mandatory or otherwise, it shall be lawful for such court to issue writs of attachment, or any other processof said court incident or applicable to writs of in- junction or other proper process, mandatory or otherwise, against such common carrier, and, if a corporation, against one or more of the direct- ors, officers, or agents of the same, or against any owner, lessee, trustee, receiver, or other person failing to obey such writ of injunction or other proper process, mandatory or otherwise ; and said court may, if it shall think fit, make an order di- recting such common carrier or other person so disobeying such writ of injunction or other proper process, mandatory or otherwise, to pay such sum of money, not exceeding, for each carrier or per- son in default, the sum of five hundred (500) dol- lars for every day after a day to be named in the order, that such carrier or other person shall fail to obey such injunction or other proper process, mandatory or otherwise; and such moneys shall be payable as the court shall direct, either to the party complaining, r into court to abide the ulti- mate decision of the court; and payment thereof may, without prejudice to any other mode of re- covering the same, be enforced by attachment or order in the nature of a writ of execution, in like manner as if the same had been recovered by a final decree in personam in such court. Either l^arty to such proceeding before said court may appeal to the supreme court of the state, under the same regulations now provided by law in respect to security for such appeal ; but such appeal shall not operate to stay or supersede the order of the court, or the exegution of any writ or process thereon, unless the coux't hearing or deciding such case should otherwise direct ; and such court may in every such matter order the payment of such costs and counsel fees as shall be deemed rea- sonable, (d) In case the attorney general shall not, within a period often (10) days after the mak- ing of any oi'der by the commission, commence judicial proceedings for the enforcement thereof, any railroad company or other common carrier affected by such order may, at any time within the period of thirty (30) days after the service [of it] upon him or it of such order, and before commencement of proceedings, appeal therefrom to the district court of any judicial disti-itt through or into which his or its x-oute may run, by the service of a written notice of such appeal upon some member or the secretary of such commis- sion. And upon the taking of such appeal, and the filing of the notice thereof, with the proof of service, in the office of the clerk of such court, there shall be deemed to be pending in such court a civil action of the character and for the purposes mentioned in sections eleven (11) and fifteen (15) of this act. Upon such appeal, and upon the heai'ing of any application for the enforcement of any such order made by the commission or by the attorney general, the court shall have jurisdiction to ex- amine the whole matter in. controversy, including matters of fact as well as questions of law, and to affirm, modify, or I'escind such oi'der in whole or in part, as justice may require; and, incase of 126 THE rOLICE POWER. any order being modified as aforesaid, snob modi- fied order shall, for all the purposes eonteniplated by this act, stand in place of the original ox'der so modified. No appeal as aforesaid shall stay or supersede the order appealed from in so far as such order shall relate to rates of Transjjortation, or to modes of transacting the business of the ap- pellant with the public, unless the coui't hearing or deciding suc'h t'ase shall so direct. Wee. IG. (f() That whenever facts, in any man- ner ascertained by said commission, shall in its judgment warrant a prosecution, it shall be the duty of said commission to immediately cause suit to be institvited and prosecuted against any connnon carrier who may violate any of the pi'o- visions of this act, or of any law of this state. All such prosecutions shall be in the name of the state of Minnesota, except as is otherwise provid- ed in this act, or in any law of this state, and may be instituted in any county in the state through or into which tlie line of any common carrier so sued may extend; and all penalties re- covered under the provisions of this act, or of any law of this state, in any suit instituted in the name of the state, shall be immediately paid into the state ti'easury by the sheriff or other officer or person collecting the same, and the same shall be by the state treasurer placed to the credit of the general revenue fund. (/») For the purposes of this act, except its penal provisions, the district courts of this state shall be deemed to be always in session. Sec. 17. (a) That the commission is hereby directed to require annual reports from all com- mon carriei's subject to the jirovisions of this act, to fix the time and prescribe the manner in which said repoi'ts shall be made, and to require from such carriers specific answers to all questions upon which the commission may need information. iSuch annual reports shall show in detail the amount of capital stock issued, the amounts paiil therefor, and the manner of jjayment for the same, the dividends paid, tlic suiphis fund, if any, and the number of stocklii^l(l(>rs, the funded and float- ing debts and the interest paid thereon ; the cost and value of the carrier's i)roperty, franchises, and (Hjuipment; the number of employes, and the salai-y paid each class ; the amounts expended for improvements each year, how expended, and the character of such improvements; the earn- ings and receipts of each branch of business, and from all sources ; the operating and other expenses ; the balance of profit and loss ; and complete exhibit of the financial operations of the i-arrier each year, including an annual balance-sheet; also, the total number of acres of land recei ved as grants either from the United States or fi'om the state of Minnesota, the number [ofj acres of said grants sold, and average price received per acre, the number acres of gi-ants unsold, and the ap praised value per acre. Such detailed reports shall also contain such information in relation to rates or regiilations concerning fares or freights and agTeements. arrangements or contracts with ex- press companies, telegraph companies, sleeping and dining car companies, fast freight lines, and other common carriers, as the commission may require, with copies of such contracts, agi-ee- ments. or arrangements. (/>) And the commis- sion may, within its discretion, for the purpose of enabling it the better to cari-y out the purposes of this act, pi'escribe (if, iji the opinion of the t'ommission, it is practicable to prescribe such uniformity and methods of keeping accounts) a period of time within which all common carriers subject to the provisions of this act .shall have, as mar as may be, a uniform system of accounts, and the manner in which such accounts shall be ktp". > vc. 18. ((() That such commissioners shall, on or before the first (1st) day of December in each year, and oftener, if required by the govern- or to do so. make a report to the" governor of their doings for the preceding year, containing .such fac-ts. statements, and explanations as will dis close the actual workings of the system of rail .■oad ti-ansportation in its bearings upon the busi ness and prosperity of the people of this state, and such suggestions in relation thei'eto as to them may seem appropriate, (/j) They shall also, at such times as the governor shall direc-t. examine any particular subject connected with the condi- tions and managenient of such railroads, and re- port to him in writing their opinion thereon, with their reasons therefor. Said commissioners shall also investigate and consider what, if any, amend- ment or revision of the railroad laws of this state the best interests of the state demand, and they shall make a special biennial report on said sub- ject to the governor. All such reports made to the governor shall be by him transmitted to the legis- lature at the earliest practicable time, (c) Noth- ing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the pi-ovisions of this act are in addition to such remedies : provided, that no pend- ing litigation shall in any way be affected by this ac-t. Sec. 19. Each commissioner shall receive an annual salary of three thousand (8. ()()()) dollai's, payable in the same manner as the salaries of other state offii-ers. The commissioners .shall ap- point a sei-retary, who shall receive an annual sal- ary of eighteen hundred (1,800) dollars, payable in" like manner. Said secretary shall, befoi'e en- tering upon the duties of his office, make and file with the secretary of state an affidavit in the fol- lowing form : "I do solemnly swear or affirm ( as the case may be) that I will support the constitution of the United States and the constitution of the state of Minnesota, and that I will faithfully dis- charge mj' duties as secretary of the railroad and warehouse commission of the state of Minnesota, according to the best of my ability; and I further declare that I am not in the employ of, or holding any official relation to, any common carrier or grain warehouseman within said state, nor am I in any manner interested in any stock, bonds, or other property of such common carrier or grain warehouseman. " The said secretary so appointed and qualified shall enter into bonds to the state of Minnesota, to be approved by the governor, in the sum of ten thousand (10.000) dollars, conditioned for the faithful performance of his duty as secre- taiw of such conunission, which bond shall be filed with the secretary of state. Tlieconiniission shall have authority to employ and fix tiie compensation for such other employes as it may find necessary to the proper performance of its duties, subject to the approval of the governor of the state. The commissioners shall be fm-nished with a suitable office, and all nec<>ssary office supplies. Witnesses summoned before the commission shall be paid the same fees and mileage that are paid witnesses in the district courts of the state. All the expenses of the commission, including all necessary expenses for transportation incuri-ed by the commissioners, or by their employes under their order, in making any investigation in any other place than the city of St. Paul, shall be allowed and paid out of the state treasury on the presentation of itemized vouchers therefor approved by the chairman of the commission and the state auditor. Sec. 20. That the sum of fifteen thousand (15,000) dollars is hereby appropriated for the use and purposes of this act fen* the fiscal year ending July thirty-first, (31st,) eighteen hundred and eighty-eight, (1888;) and the sum of fifteen thou- sand (!."). 000) dollars is hereby appropriated for the uses and purposes of this act for the fiscal year ending July thirty-first, (31st.) eighteen hundred and eighty nine, (1SS9. ) Sec. 21. That all acts and parts of acts in- consistent herewith are hereby repealed : provid- ed, that the provisions of this act shall apply to and govern the existing railroad and warehouse commissioners appointed by virtue of an act ap- proved March fifth, (5th, ) "eighteen hundred and eighty-five, (1SS5, ) who are hereby clothed with the powers, and charged with the duties and re- sponsibilities, of this act, granted to and imposed upon the railroad and warehouse commissioners of the state of Minnesota. Sec. 22. This act shall take effect and be in force from and after its passage. Approved Maivh 7, 1857. rOLlCE POWER OF THE STATES. 127 POWELL V. COMMONWEALTH OF PENN- SYLVANIA. C8 Sup. Ct. 992, 127 U. S. 678.) Supreme Court of the L'nited States. April 9, 1888. In error to the supreme court of the state of Peiinsylvauia. D. T. Watson, for plaintiff in error. Wayne MacYeagh and W. S. Kirkpatrick, Atty. Gen., for defendant in error. HARL^j^N, J. This writ of error brings up for review a judgiuent of the supreme court of Pennsylvania, sustaining the validity of a statute of that commonwealth relating to the manufacture and sale of what is commonly called "oleomargarine butter." That judg- ment, the plaintiff in error contends, denies to him certain rights and privileges special- ly claimed under the fourteenth amendment to the constitution of the United States. By acts of the general assembly of Pennsyh^a- nia, one approved May 22, 1878, and enti- tled "An act to prevent deception in the sale of butter and cheese," and the other approved May 24, 1883, and entitled "An act for the protection of daiiymen, and to prevent decep- tion in sales of butter and cheese," provision Avas made for the stamping, branding, or marking, in a prescribed mode, manufactured articles or substances in semblance or imita- tion of butter or cheese, not the legitimate product of the dairy, and not made exclu- sively of milk or cream, but into which oil, lard, or fat, not produced from milk or cream, entered as a component part, or into which melted butter, or any oil thei'eof, had been in- troduced to take the place of cream. Laws Pa. 1878. p. 87; 1883, p. 43. But this legis- lation, we presume, failed to accomplish the objects intended by the legislature. For, by a subsequent act approved May 21, 188.5, and wdiich took eft"ect .July 1, 188.5, entitled "An act for the protection of the public health, and to prevent adulteration of dairy prod- ucts, and fi'aud in the sale thereof." it was provided, among other things, as follows: "Section 1. That no person, lirm, or corpo- rate body shall manufacture out of any ole- aginous substance, or any compound of the same, other than that produced from unadul- terated milk, or of cream from the same, any article designed to take the place of but- ter or cheese produced from pure, unadulter- ated milk, or cream from the same, or of any imitation or adulterated butter or cheese, nor shall sell, or offer for sale, or have in his, her, or their possession, Avith intent to sell, the same as an article of food. "Sec. 2. EA'ery sale of such article or sub- stance which is prohibited by the first sec- tion of this act, made after this act shall take effect, is hereby declared to be unlawful and A'oid, and no action shall be maintained in any of the courts in this state to recover upon any contract for the sale of any such ar- ticle or substance. "Sec 3. Every person, company, firm, or . corporate body who shall manufacture, sell,, or offer or e.xpose for sale, or have in his, her, or their possession with intent to sell, any substance the manufacture and sale of which is prohibited by the first section of this act, shall, for every such offense, forfeit and pay the sum of one hundred dollars, which shall be recoverable, with costs, by any per- son suing in the name of the commonwealth, as debts of like amount are by law recover- able; one-half of which sum, when so recov- ered, shall be paid to the proper county treas- urer for the use of the county in which suit is brought, and the other half to the person or persons at whose instance such a suit shall or may be commenced and prosecuted to re- coA'ers'. "Sec. 4. Every person who violates the pro- vision of the first section of this act shall be deemed guilty of a misdemeanor, and up- on conviction shall be punished by a fine of not less than one hundred dollars, nor more than three hundred, or by imprisonment in the county jail for not less than ten nor more than thirty days, or both such fine and im- prisonment, for the first offense, and impris- onment for one year for every subsequeut of- fense." The plaintiff in error was indicted, under the last statute, in the court of quai'ter ses- sions of the peace in Dauphin county, Pa. The charge in the first count of the indict- ment is that he unlawfully sold, "as an arti- cle of footf. two eases, containing tive pounds each, of an article designed to take tlie place of butter produced from pure, unadulterated milk, or cream from milk, the said article so sold, as aforesaid, being an article manufac- tured out of certain oleaginous substances, and compounds of the same, other than that produced fi-om unadulterated milk, or cream from milk, and said article so sold, as afore- said, being an imitation butter." In the sec- ond count the charge is that he unlaAvfully had in his possession, "with intent to sell the same, as an article of food, a (luantity, viz.. one hundred pounds, of imitation butter, de- signed to take the place of butter produced from pure, unadulterated milk, or cream from the same, manufactured out of certain ole- aginous substances, or compounds of the same, other than that produced from milk, or cream from the same." It was agreed, for the purposes of the trial, that the defendant on .Tuly 10, 1S85, in the city of ITarrisburg, sold to the prosecuting witness, as an article of food, two original packages of the kind de- scribed in the first count; that such ixickages were sold and bought as "butteriue," and not as butter produced from pure, unadulter- ated milk, or cream from unadulterated milk; and that each of said packages Avas, at the time of sale, marked AA'ith the words, "Oleo- margarine Butter," upon the lid and side in 126 THE POLICE rOWER. a straight line, in Roman lettei*s half an inch long. It was also agreed that the defendant had in his possession 100 pounds of tlie same article, Avitli intent to sell it as an article of food. This was the case made by the commonwealth. The defendant then offered to prove by Prof. Hugo Blanck that he saw manufactured the article sold to the pi'ose- cuting witness; that it was made from pure animal fats; that the process of manufacture was clean and wholesome, the article con- taining the same elements as dairy butter, the only difference between them being that the manufactured article contained a smaller proportion of the fatty substance known as ^'butterine"; that this butterine existed in dairy butter in the proportion of from H to 7 per cent., and in the manufactured article in a smaller pi-oportion, and was increased in the latter by the introduction of milk and cream; that, this having been done, the ar- ticle contained all the elements of butter pro- duced from pure, unadulterated milk, or cream from the same, except that the per- centage of butterine was slightly smaller; that the only effect of butterine was to give flavor to the butter, and that it had nothing to do with its wholesomeness; that the ole- aginous substances in the manufactured arti- cle were substantially identical with those produced from milk or cream; and that the article sold to the prosecuting witness was a wholesome and nutritious article of food, in all respects as wholesome as butter produced from pure, unadulterated milk, or cream from unadulterated milk. The defendant al- so offered to prove that he was Agaged in the grocery and provision business in the city of Harrisburg, and that the article sold by him was part of a large and valuable (luan- tity manufactured prior to the 21st of May, 18S5, in accordance with the laws of this commonwealth relating to the manufacture and sale of said article, and so sold by him; that for the purpose of prosecuting that busi- ness large investments were made by him in the purchase of suitable real estate, in the ■erection of proper buildings, and in the pur- chase of the necessary machinery and ingre- dients; that in his traffic in said articie he made large profits; and, if prevented from contimiiug it, the value of his property em- ployed therein would be entirely lost, »nd lie be deprived of the means of livelihood. To each offer the commonwealth objected up- on the ground that the evidence proposed to be introduced was immaterial and irrelevant. The purpose of these offers of proof was avowed to be (1) to show that the article sold was a new invention, not an adulteration of dairy products, nor injurious to the public health, but wholesome and nutritious as an article of food, and that its manufacture and sale were in conformity to the acts of May 22, 1S7S, and May 24, 1SS3; (2) to show that the statute upon Avhich the prosecution was founded was unconstitutional, as not a law- ful exercise of police power, and also be- cause it deprived the defendant of the lawful use "of his property, liberty, and faculties, and destroys his property without making compensation." The couit sustained the ob- jection to each offer, and excluded the evi- dence. An exception to that ruling was du- ly taken bj^ the defendant. A verdict of guilty having been returned, and motions in arrest of judgment and for a new trial hav- ing been overruled, the defendant was ad- judged to pay a tine of $100 and costs of prosecution, or give bail to pay the same in 10 days, and be in custody until the judg- ment was performed. That judgment was affirmed by the supreme court of the state. 114 Pa. St. 2G5, 7 Atl. 913. This case, in its important aspects, is gov- erned by the principles announced in Mug- ler V. Kansas, 123 U. S. 623, 8 Sup. Ct. 273. It is immaterial to inquire Avhether the acts with v.'hich the defendant is charged were authorized by the statute of May 22, 1878, or by that of May 24, 1883. The present prosecution is founded upon the statute of May 21, 1885; and, if that statute be not in conflict with the constitution of the United States, the judgment of the supreme court of Pennsylvania must be affirmed. It is contended that the last statute is void in that it deprives all coming within its pro- visions of rights of liberty and property without due process of law, and denies to them the equal protection of the laws, — rights which are secured by the fourteenth amendment of the constitution of the United States. It is scarcely necessary to say that if this statute is a legitimate exercise of the police power of the state for the protection of the health of the people, and for the pre- vention of fraud, it is not inconsistent with that amendment; for it is the settled doc- trine of this court that, as government is organized for the purpose, among others, of preserving the public health and the public morals, it cannot divest itself of the power to provide for those objects, and that the fourteenth amendment was not designed to interfere with the exercise of that pov.'er by the states. Mugler v. Kansas, 123 U: S. 623, 8 Sup. Ct. 273; Union Co. v. Crescent City Co., Ill U. S. 746. 7r.l, 4 Sup. Ct. 652; Barbier v. Connolly. 113 U. S. 27, 5 Sup. Ct. 357; Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064. The question, therefore, is whether the prohibition of the manufacture out of oleaginous substances, or out of any compound thereof, other than that produced from unadulterated milk, or cream from un- adulterated milk, of an article designed to take the place of butter or cheese produced from pure, unadulterated milk, or cream from unadulterated milk, or the prohibition upon the manufacture of any imitation or adulterated butter or cheese, or upon the selling, or offering for sale, or having in pos- session with intent to sell, the same, as an article of food, is a lawful exercise by the state of the power to protect, by police reg- POLICE POWER OF THE STATES. 129 ulations, the public health. The main prop- osition advanced by the defendant is that his enjoyment upon terms of equality with all others in similar circumstances of the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling property, is an essential part of his rights of liberty and property as guarantied by the fourteenth amendment. The court assents to this general proposition as embodying a sound principle of constitutional law. But it cannot adjudge that the defendant's rights of liberty and property, as thus defined, have been infringed by the statute of Pennsyl- vania, without holding that, although it may have been enacted in good faith for the ob- jects expressed in its title, mainly, to pro- tect the public health, and to prevent the adulteration of dairy products, and fraud in the sale thereof, it has, in fact, no real or substantial relation to those objects. Mug- ler V. Kansas, 123 U. S. G2.3, 8 Sup. Ct. 273. The court is unable to affirm that this legis- lation has no real or substantial relation to such objects. It will be observed that the offer in the court below was to show by proof that the particular articles the defend- ant sold, and those in his possession for sale, in violation of the statute, were, in fact, wholesome or nutritious articles of food. It is entirely consistent with that offer that many, indeed that most, kinds of oleomarga- _rine butter in the market contain ingredi- ents that are or may become injurious to health. The court cannot say, from any- thing of which it may take judicial cogni- zance, that such is not the fact. Under the circumstances disclosed in the record, and in obedience to settled niles of constitutional construction, it must be assumed that such is the fact. "Every possible presumption," Chief Justice Waite said, speaking for the court, in Sinking Fund Cases, 99 U. S. 718, "is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutai'y rule." See also Fletcher v. Peck, 6 Cranch, 128; Dartmouth College v. Woodwai'd, 4 Wheat. 518, 625; Livingston v. Darlington, 101 U. S. 407. Whether the manufacture of oleo- margarine, or imitation butter, of the kind described in the statute, is or may be con- ducted in such a way, oi with such skill and secrecy, as to baffle ordinary inspection, or whether it involves such danger to the pub- lic health as to require, for the protection of the people, the entire suppression of the business rather than its regulation in such manner as to permit the manufacture and sale of articles of that class that do not con- tain noxious ingredients, are questions of fact and of public policy which belong to the legislative department to determine. And as it does not appear upon the face of SMITH, CONST. LAW — 9 the statute, or from any facts of which the court must take judicial cognizance, that it infringes rights secured by the fundamental law, the legislative determination of those questions is conclusive upon the courts. It is not a part of their functions to conduct investigations of facts entering into ques- tions of public policy merely, and to sustain or frustrate the legislative will, embodied in statutes, as they may happen to approve or disapprove its determination of siieh ques- tions. The power which the legislature has to promote the general welfare is very great, and the discretion which that department of the government has, in the employment of means to that end, is very large. While both its power and its discretion must be so exercised as not to impair the fundamental rights of life, liberty, and property, and while, according to the principles upon which our institutions rest, "the very idea that one man may be compelled to hold his life, or the means of living, or any material right es- sential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as be- ing the essence of slavery itself," yet "in many cases of mere administration, the re- sponsibility is purely political, no appeal ly- ing except to the ultimate tribunal of the public judgment, exercised either in the pressure of public opinion, or by means of 1^e suffrage." Tick Wo v. Hopkins, 118 U. S. 370, 6 Sup. Ct. 1064. The case before us belongs to the latter class. The legislature of Pennsylvania, upon the fullest investiga- tion, as we must conclusively presume, and upon reasonable grounds, as must be as- sumed from the record, has determined that the prohibition of the sale, or offering for sale, or having in possession to sell, for pur- poses of food, of any article manufactured out of oleaginous substances or compounds other than those produced from unadulter- ated milk, or cream from unadulterated milk, to take the place of butter produced from unadulterated milk, or cream from un- adulterated milk, will promote the public health, and prevent frauds in the sale of suck articles. If all that can be said of this legislation is that it is unwise, or unneces- sarily oppressive to those manufacturing or selling wholesome oleomargarine as an arti- cle of food, their appeal must be to the leg- islature, or to the ballot-box, not to the ju- diciary. The latter cannot interfere without usurping powers committted to another de- partment of government. It is argued in behalf of the defendant that, if the statute in question is sustained as a valid exercise of legislative power, then nothing stands in the way of the destruction, by the legislative department, of the constitutional guaranties of liberty and property. But the possibility of the abuse of legislative power does not disprove its existence. That possibility ex- ists even in reference to i^owers that are conceded to exist. Besides, the judiciaiy 130 THE POLICE POWER. depart inent is bound not to tiive fft'cct to statutory enactments that are j)lainly for- bidden by the constitution. This duty, tlie court lias said, is always one of extreme del- icacy, for, apart from the necessity of avoid- ing conflicts betveen co-ordinate bran<-hes of the government, whether state or national, it is often difficult to determine whether such enactments are within the powers gi'ant- ed to or possessed by the It^gislature. Nev- ertheless, if the incompatibility of the con- stitution and the statute is clear or palpable, the courts must give effect to the former. And such Avould be the duty of the court if the state legislature, undei' the pretense of guarding the public health, the public mor- als, or the public safety, should invade the rights of life, liberty, or property, or other rights secured by the supreme law of the land. The o))Jection that the statute is repugnant to the clause of the foiuteenth amendment forbidding the denial by the state to any person within its jurisdiction of tlic 0(Hial protection of the laws is untenable. The statute places under the same restrictions, and subjects to like penalties and burdens, all Avho manufacture, or sell, or offer for sale, or keep in possession to sell, the arti- cles embraced by its prohibitions, thus rec- ognizing and preserving tlie principle of equality among those engaged in the same business. Barbier v. Connolly, supra; Soon King V. Crowley, 113 U. S. 703, 5 Sup. Ct. 730; Railway Co. v. Humes, 115 U. S. rill). Sui>. Ct. 110. It is also contended that the act of May 21. 1SS.J, is in conflict with the fourteenth amendment in that it deprives the defendant of his property without that compen.satiim required by law. This contention is without merit, as was held in Mugler v. Kansas, su- pra . T'pon the whole case, we are of opinion that there is no error in the judgment, and it is therefore attirmed. THE POWER OF J'AXATJOX 181 AVKSTERN UNION TEL. CO. v. COMMON- WEALTH OF MASSACHUSETTS. (8 Sup. Ct. 961, 125 IT. S. 530.) Supreme Court of the Uuited States. March 19, 1888. A[)peal from the Circuit Court of the Unit- ed States for the District of Massachusetts. Oeorge S. Hale, Charles W. Wells, and AVillard Brown, for appellant. Andrew J. Waterman and Henry C. Bliss, for appellee. MILLER, J. This is a writ of error to the circuit court of the Uuited States for the district of Massachusetts. The action was commenced in the supreme judicial court of Massachusetts, sitting in equitjr, by an information on behalf of the common- wealth, by its attorney general, at the rela- tion of the ti'i^asurer thereof, Alanson W. Beard. It was afterwards removed, upon motion of the defendant, the Western Un- ion TelegTaph Company, into the circuit court of the United States. The object of the information was to enforce the collec- tion of a tax levied by the proper authorities of the state upon the telegraph company, and to enjoin it from the further operation of its telegraph lines within the territorial lim- its of the commonwealth until that tax was paid. The defendant company is a corpo- ration orgranized under the laws of the state of New York, having its capital stock divid- ed into shares. The tax assessed by the treasurer of the commonwealth of Massa- chusetts was based upon an estimate of Jf 750,952 as the taxable value of the shares of the corporation apportioned to that state, the rate of taxation having been determined for that year, 1885, at $14.14 for and upon i each $1,000 of valuation. The mode by which this taxable valuation was arrived at Avas this: The treasurer ascertained from the officers of the teleg-raph company that the valuation of its entire capital stock was $47,500,000, from Avhich were deducted the credits proper to be allowed in deter- mining the assessable value, leaviug $38,- 713,924 as the total valuation of said stock liable to taxation. It was then ascertained that the total number of miles of line of said corporation in all the states and tern- tories of this country was 140,052.60, of which 143,219.55 were without the limits of the commonwealth of Massachusetts, leav- ing 2,833.05 miles within its boundaries. Taking these figures, the treasurer of the state assessed the value of tliat portion of the capital stock of this company which, under this calculation, would fall Avithin the commonwealth of Massachusetts, at the sum of $750,952. The amount thus arrived at, at the rate of $14.14 upon each $1,000 of valuation, produced the sum of $10,- 018.40 as the amount of the tax claimed to be due and payable to the treasurer of said commonwealth by that corporation. This sum Avas demanded of the telegraph com- pany, but it I'efused to pay the same. The answer of the defendant corporation set up that of its 2,833.05 miles of line Avithin the state of Massachusetts more than 2,334.55 miles were over, under, or across post-roads, made such by the United States, leaving only 498.50 miles not over or along such post-roads, ou Avhich the compauy ottered to pay the proportion of the tax assessed ac- cording to mileage by the state authorities. The main ground on Avhich the telegraph company resisted the payment of the tax alleged to be due, and on which probably the case AA^as removed from the state court into the circuit court of the Uuited States, is that it is a violation of the rights confer- red on the company by the act of ,Iuly 24, 186'3, noAv title 65, §§ 5263-5209, of the Re- vised Statutes, The defendant alleges that ] it had accepted the pi'ovisions of that laAv, I and tiled a notification of such accep^ance ] Avith the postmaster general of the United States June 8, 1867. The argument is, therefore, that by virtue of section 5263 tlie company has a right to exercise its func- tions of telegi-aphing over so much of its lines as is connected Avith the military and post-roads of the United States Avhich have been declared to be such by laAV Avithout be- ing subject to taxation therefor by the state authorities. That section reads as foUoAvs: "Sec. 5263. Any telegraph compa- uy noAv oi-ganized, or Avhich may hereafter be organized under the laAvs of any state, shall have the right to construct, maintain, and oijerate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the militaiy or post-roads of the United States Avhlch have been or may hereafter be declared such by law, and over, imder, or across the navigable streams or Avaters of the United States; but such Hues of tele- graph shall be so constructed and main- tained as not to obstruct the navigation of such streams and waters, or interfere Avith tlie ordinary travel on such military or post- roads." It is urged that this section, upon its ac- ceptance by this coiiioration or any of like character, confers a right to do the business of telegraphing Avhich is transacted over the lines so constructed over or along such post- roads Avithout liability to taxation by the state. The argument is very much pressed that it is a tax upon the franchise of the company, Avhich franchise being derived from the United States by virtue of the statute above recited cannot be taxed by a state, and counsel for appellant occasionally speak of the tax authorized by the laAV of Massachusetts upon this as Avell as all other corporations doing business Avithin its terri- tory, Avhether organized under its laAvs or not, as a tax upon their franchises. But by Avhatever name it may be called, as de- scribed in the laws of Massachusetts, it is essentially an excise upon the capital of the 132 THE POWER OF TAXATION. corpoi-ation. The laws of that couunon- wealtli attempt to ascertain the just amount which any corporation en^ajjed in business within its limits shall pay as a contribution to the support of its government upon the amount and value of the capital so employed by it therein. The telegraph company, which is the defendant here, derived its fran- chise to be a corporation and to exercise the function of telegraphing from the state of New York. It owes its existence, its ca- pacity to contract, its right to sue and be sued, and to exercise the business of teleg- raphy, to the laws of the state under which it is organized. But the privilege of running the lines of its wires "through and over any portion of the public domain of the United States, over and along any of the military or post-roads of the United States, * * * and over, under, or across the navigable streams or waters of the United States," is granted to it by the act of congress. This, however, is merely a permissive statute, and there is no expression in it which implies that this permission to extend its lines along roads not built or owned by the United States, or over and under navigable streams, or over bridges not built or owned by the federal government, carries with it any ex- emption from the ordinary burdens of tax- ation. While the state could not interfere by any specific statute to prevent a corpora- tion from placing its lines along these post- roads, or stop the vise of them after thej^ wei-e placed there, nevertheless the company receiving the benefit of the laws of the state for the protection of its property and its rights is liable to be taxed upon its real or personal property as any other person would be. It never could have been intended by the congress of the United States, in con- ferring upon a corporation of one state the authority to enter the territory of any other state and erect its poles and lines therein, to establish the proposition that such a com- pany owed no obedience to the laws of the state into which it thus entered, and was under no obligation to pay its fair propor- tion of the taxes necessary to its support. In the case of Telegraph Co. v. Texas, 105 U. S. 4G0, this question was veiy fully consid- ered; and while a tax imposed upon every telegi'am passing over its lines, whether en- tirely within the state or coming from with- cut its limits, or going from the state out of it, was held to be void so far as i-elated to messages passing through more than one state, as an interference with or a regulation of commerce and with the act of congress we have just been considering, it was dis- tinctly pointed out that if it could be ascei-- tained what telegrams were confined wholly within the state, a tax on those might be im- posed by it. In that case the chief justice, delivering the opinion of the court, said: "The Western Union Telegraph Company having accepted the restrictions and obliga- tions of this provision by congress, occupies in Texas the position of an instrument of foreign and interstate commerce, and of a government agent for the transmission of mes- sages on public business. Its property in the state is subject to taxation the same as other property, and it may undoubtedly be taxed in a proper way on account of its occupation and its business. The precise question now presented is whether the power to tax its occupation can be exercised by placing a specific tax on each message sent qut of the state, or sent by public officers on the busi- ness of the United States." Pages 464, 405. This authority of the government gives to this telegraph company, as well as to all oth- ei-s of a similar character who accept its provisions, the right to run their lines over the roads and bridges which have been de- clared to be post-roads of the United States. If the principle now contended for be sound, every railroad in the country should be exempt from taxation because they have all been declared to be post-roads; and the same reasoning would apply with equal force to every bridge and navigable stream through- out the land. And if they were not exempt from the burden of taxation simply because they were post-roads, they would be so re- lieved whenever a telegraph company chose to make use of one of these roads or bridges along or over which to run its lines. It was to provide against the recognition of such a principle that this court, in the case above cited, while holding that telegrams themselves coming from without a state or sent out of it as a part of their convey- ancecould not be taxed by the state specifical- ly, nevertheless used the language that "its property in the state is subject to taxation the same as other propei'ty, and it may un- doubtedly be taxed in a proper w'ay on ac- count of its occupation and its business." A still stronger case in the same direction is that of Railroad Co. v. Peniston, 18 Wall. 5. The plaintiff in that action, the Union Pacific Railroad Company, was incorporated under a law of the United States. The state of Nebraska, under a revenue law passed by its legislature, undertook to lay a tax upon the property of that company which was used or embraced within the limits of its territory, upon a valuation of $10,000 per mile. The property thus rated and taxed consisted of its road-bed, depots, stations, telegraph poles, wires, bridges, etc. It will be here observed that a part of the valuation on which this tax was levied was made up of the telegraph poles and wires belonging to the company. The .argument w^as pressed in that case that the railroad company held its franchises from the government of the United States, and that its property could not be taxed by the state, but this court held otherwise, and in the opinion used this lan- guage: "It is often a ditficult question whether a tax imposed by a state does in fact invade the domain of the general gov- ernment, or interfere with its opei-ations' to INDEPENDEXCE OF FEDERAL AND STATE GOVERXMENTS. 133 such an extent, or in such a manner, as to render it unwarranted. It cannot be that a state tax which remotely affects the eth- cient exercise of a federal power is for that reason alone inhibited by the constitution. To hold that would be to deny to the states all power to tax persons or property. Every tax levied by a state withdraws from the reach of federal taxation a portion of the property from which it is taken, and to that extent diminishes the subject upon which federal taxes may be laid. The states are, and they must ever be, co-existent with the national government. Neither may destroj^ the other. Hence the federal constitution must receive a practical construction. Its limitations and its implied prohibitions must not be extended so far as to desti'oy the nec- essary powers of the states, or prevent their efficient exercise." Pages 30, 31. The case of Thomson v. Railroad, 9 Wall. 579, is then cited, Avhere it was held that the property of that company was not exempt from state taxation, though their raih*oad was a part of a system of reads constracted under the authority and direction of the United States, and lai'gely for the uses and to serve the puiposes of the general government. The court further said: "A vei-j^ large pi'opor- tion of the property within the states is em- ployed in execution of the powers of the gov- ernment. It belongs to governmental agents, and it is not only used, but it is necessary for their agencies. United States mails, troops, and munitions of war are carried up- on almost every railroad. Telegraph lines are employed in the national service. So are steam-boats, horses, stage-coaches, foundries, ship-yards, and multitudes of manufacturing establishments. They are the property of natural pereons or of coiijorations, who are agents or instruments of the general govern- ment, and they are the hands by which the objects of the government are attained. Were they exempt from liability to con- tribute to the revenue of the state it is mani- fest the state governments would be para- lyzed. While it is of the utmost importance that all the powers vested by the constitu- tion of the United States in the genei-al gov- ernment should be preserved in full etti- eiency, and while recent events have called for the most unembarrassed exercise of many of those powers, it has never been decided that state taxation of such property is im- pliedly prohibited." Page 33. In Bank v. Com., 9 Wall. 353, which was a case of a tax levied upon the shares of a national bank, the same objection in regard to a tax by state authority Avas pressed upon the court, but this court said that the principle of ex- emption of federal agencies from state taxa- tion has a limitation growing out of the ne- cessity upon which the principle is founded. "That limitation is, that the agencies of the federal government are only exempted from state legislation so far as that legislation may interfere with or impair their efficiency in performing the functions by which they are designed to serve that government. Any other rule would convert a principle founded alone in the necessitj^ of securing to the gov- ernment of the United States the means of exercising its legitimate powers into an un- authorized and unjustifiable invasion of the rights of the states. * * * So of the banks. They are subject to the laws of the state, and are governed in their daily course of business far more by the laAvs of the state than of the nation. All their contracts are governed and construed by state laAvs. Their acquisition and transfer of property, their right to collect their debts, and their liability to be sued for debts, are all based on state law. It is only when the state law incapaci- tates the banks fi'om discharging their du- ties to the government that it becomes un- constitutional. We do not see the remotest probability of this, in their being required to pay the tax which their stockholders owe to the state for the shares of their capital stock, when the law of the federal govern- ment authorizes the tax." Page 362. The tax in the present case, though nominally upon the shares of the capital stock of the company, is in effect a tax upon that or- ganization on account of propex'ty owned and used by it in the state of Massachusetts, and the proportion of the length of its lines in that state to their entire length throughout the whole country is made the basis for as- certaining the value of that property. We do not think that such a tax is forbidden by the acceptance on the part of the telegraph company of the rights conferred by section 5263 of the Revised Statutes, or by the com^ merce clause of the constitution. It is urged against this tax that in ascer- taining the value of the stock no deduction is made on account of the value of real estate and machinery situated and subject to local taxation outside of the commonwealth of Massachusetts. The report of Examiner Fiske, 'to whom the matter was referred to find the facts, states that the amount of the value of said real estate outside of its juris- diction was not clearly shown, but it did ap- pear that the cost of land and buildings be- longing to the company and entirely without that state was over .$3,000,000. In the state- ment of the treasurer of the company it is said that the value of real estate owned by the company within the state of Massachu- setts was nothing. Since the corporation was only taxed for that proportion of its shares of capital stock which was supposed to be tax^ able in that state on the calculation above re- ferred to, and since no real estate of the cor- poration Avas oAvned or taxed within its lim- its, we do not see why any deduction should be made from the proportion of the capital stock which is taxed by its authorities. But if this Avere otherAvise Ave do not feel called upon to defend all the items and rules by Avhich they arrived at the taxable value on which its ratio of percentage of t?jcatiou 134 THE POWER or TAXATION. should be assessed; aud even iu this ease. Avhich comes from the circuit court and not from that of the state, we thiuk it should ap- pear that the corporation is injured Ity some principle or rule of the law not eciually appli- cable to other objects of taxation of like char- acter. Since, therefore, this statute of Mas- sachusetts is intended to govern the taxation of all corporations therein, and doin.;; business ■within its territory, whether organized under its own laws or those of scmie other state, and since the pi'incii)le is one which we can- not pi'onounce to be an unfair or an unjust one, Ave do not feel called upon to hold the tax A'oid, because we mijiht have adopted a different system had we been called upon to ac-complish the same result. It is very clear to us, when wo consider the limited territorial extent of Massachusetts, and the proportion of tJie len.iith of the lines of this company iu that state to its business done therein. Avith its sreat poi)ulation and business actiA'ity. that the rule adopted to ascertain the amount of the value of the capital en,i;a.iied in that business Avithin its boundaries, on which the tax should be assessed, is not unfavorable to the corporation, and that the details of the method by Avliich this was determined have not exceeded the fair ranue of le.yislatiA'e dis- cretion. We do not think that it follows nec- essarily, or as a fair argument from the facts stated in the case, that theiv was injustice in the a.>o miles of the companj-'s line, out of 2..So.'5.(>."') on AA'hich this tax is assessed, are along and oA'er such post-roads, and of course the injunction prohibits the operation of the defendant's telegi-aph over these lines, nearly all it has in the state. If the congress of the United States had authority to say that the company might construct and operate its tel- egraph over these lines, as Ave have repeatedly held it had, the state can have no authority to say it shall not be done. The injunction in this case, though ordered by a circuit court of the United States, is only granted by vir- tue of section ."14 of chapter i;i of the I'ublic Statutes of Massachusetts. If this statute is A'oid, as Ave think it is, so far as it prescribes this injunction as a remedy to enforce the collection of its taxes by the decree of the court aAvarding it, the injunction is erroneous. In holding this portion of section r»4 of chap- ter lo of the Massachusetts Statutes to be void as ai)plicable to this case, Ave do not deprive the state of the power to assess and collect the tax. If a resort to a judicial proceeding to collect it is deemed exijedient, theie re- mains to the couit all the ordinai'y means of enforcing its judgment — executions, seiiues- tration, and any otlier appropriate remedy in chancery. That part of the decree of the circuit court Avliich aAA-ards the injunction is. therefore, re- A'ersed. and the case is remanded to that court for further proceedings in conformity to this opinion. BRADLEY, J., Avas not present at the argu- ment of this case, and took no part in its de- cision. iJMlTATJON.S IMPOSED BY FEDERAL CONSTITUTION. 135 HYLTON V. UNITED STATES. i (3 Dall. 111.) Supreme Court of the Uuitecl States. Feb. Term, 3Ty(J. This was an action of debt instituted in tlie name of tlie United States against Daniel Hylton to recover the penalty imposed by Act €ong. June 5, 1794, for failure to enter and pay the duty on carriages for the conveyance of persons, kept by the defendant for his own use. The lower court having been equally divided, defendant confes.sed judg- ment, by agreement of the parties, and brought error. Athrmed. Mr. Lee, U. S. Atty. Gen., and Mr. Hamil- ton, the late secretary of the treasury, in sup- port of the tax. Mr. Campbell, of the Vir- ginia district, and Mr. Ingersoll, Atty. Gen. of Pennsylvania, in opposition. Mr. Justice CHASE delivered the opinion of the court. By the case stated, only one question is sub- mitted to the opinion of this court; — whether the law of congress, of the .Itli of .lune, 1794, entitled, "An act to lay duties upon carriages, for the conveyance of persons," is unconstitu- tional and void? The principles laid down, to prove the above law void, are these: Tliat a tax on carriages, is a direct tax, and, therefore, by the constitution, must be laid according to the census, directed by the constitution to be taken, to ascertain the number of represen- tatives from eacli state: And that the tax in question, on carriages, is not laid by that rule of apportionment, but by the rule of uniformi- ty, prescribed by the constitution, in the case of duties, imposts, and excises; and a tax on carriages, is not within either of those de- scriptions. By the 2d. section of the 1st. article of the constitution, it is provided, that direct taxes shall be apportioned among the several states, according to their numbers, to be de- termined by the rule prescribed. By the 9th section of the same article, it is further provided, that no capitation, or other direct tax, shall be laid, unless in pro- portion to the census, or enumeration, before directed. By the 8th section of the same article, it was declared, that congress sliall have pow- er to lay and collect taxes, duties, imiwsts, and excises; but all duties, imposts, and ex- cises, shall be uniform throughout the Unit- ed States. As it Avas incumbent on tlie plaintitf's coun- sel in error, so they took great pains to prove, that the tax on carriages was a direct tax; but they did not satisfy my mind. I think, at least, it may be doubted; and if I only doubted, I should affirm the judgment of the circuit court. The deliberate decision of the national legislature, (who did not consider a 1 Opinions of Mr. Justice Patterson, Mr. Jus- tice AVilson, and Mr. Justice Iredell omitted. tax on carriages a direct tax, but thought it was within the description of a dut:^') would determine me, if the case was doubtful, to receive the construction of the legislature; But I am inclined to think, that a tax on carriages is not a direct tax, within the let- ter, or meaning, of the constitution. The great object of the constitution was, to give congress a power to lay taxes, ade- quate to the exigencies of government; but they were to observe two rules in imposing them, namely, the rule of uniformity, Avhen they laid duties, imposts, or excises; and the rule of apportionment, according to the cen- sus, -s-^'hen they laid any direct tax. If there are any other species of taxes that are not direct, and not included within the words "duties, imposts, or excises," they may be laid by the rule of uniformity, or not; as congress shall think proper and reasonable. If the framers of the constitution did not con- template other taxes than direct taxes, and duties, imposts, and excises, there is great inaccuracy in their language. — If these four species of taxes were all that were meditat- ed, the general power to lay taxes was un- necessary. If it was intended, that congress should have authority to lay only one of the four above enumerated, to wit, 'direct taxes, by the rule of apportionment, and the other three by the rule of uniformity, the expres- sions would have run thus: "Congress shall have power to lay and collect direct taxes, and duties, imposts, and excises; the first shall be laid according to the census; and the three last shall be uniform throughout the ITnited States." The power, in the Sth section of Ihe 1st article, to lay and collect taxes, included a power to lay direct taxes, (whether capitation, or any other) and also duties, imposts, and excises; and every oth- er species or kind of tax whatsoever, and called by any other name. Duties, imposts, and excises, were enumerated, after the gen- eral term "taxes," only for the purpose of declaring, that they were to be laid by the rule of uniformity. I consider the constitu- tion to stand in this manner. A general power is given to congress, to lay and collect taxes, of every kind or nature, without any restraint, except only on exports; but two rules are prescribed for their government, namely, uniformity and apportionment: Three kinds of taxes, to wit, duties, imposts, and ex- cises bj^ the first rule, and capitation, or other direct taxes, bj^ the sec-ond .rule. I believe some taxes may be both direct and indirect at the same time. If so, Avould congress be prohibited from laying such a tax. because it is partly a direct tax? The constitution evidently contemplated no taxes as direct taxes, but only such as con- gress could lay in proportion to the census. The rule of apportionment is only to be adopt- ed in such cases where it can reasonably ap- ply; and the subject taxed, must ever deter- mine the application of the rule. If it is proposed to tax any specific article 136 THE POWER OF TAXATION. by the rule of apportionment, and it would evidently create great inequality and injus- tice, it is unreasonable to say, that the con- stitution intended such tax should be laid by that rule. It appears to me, that a tax on carriages cannot be laid by the rule of apportionment, without very great inequality and injustice. For example: Suppose two states, equal in census, to pay 80,000 dollars each, by a tax on carriages, of 8 dollars on every carriage; and in one state there are 100 carriages, and in the other 1000. The owners of carriages in one state, would pay ten times the tax of owners in the other. A. in one state, would pay for his cai-riage 8 dollai-s, but B. in the other state, would pay for his carriage, SO dollars. It was argued, that a tax on carriages was a direct tax, and might be laid according to the rule of apportionment, and (as I under- stood) in this manner: Congress, after de- termining on the gross sum to be raised was to apportion it, according to the census, and then lay it in one state on carriages, in an- other on horses, in a third on tobacco, in a fourth on rice; and so on.— I admit that this mode might be adopted, to raise a certain sum in each state, according to the census, but it would not be a tax on carriages, but on a number of specific articles; and it seems to me, that it would be liable to the same objection of abuse and oppression, as a selection of any one article in all the states. I think, an annual tax on carriages for the conveyance of persons, may be considered as within the power granted to congress to lay duties. The term "duty," is the most com- prehensive next to the generical term "tax"; and practically in Great Britain, (whence we take our general ideas of taxes, duties, im- posts, excises, customs. «&c.) embraces taxes on stamps, tolls for passage, &c. &c. and is not confined to taxes on importation only. It seems to me, that a tax on expence is an indirect tax; and I think, an annual tax on a carriage for the conveyance of persons, is of that kind; because a carriage ,is a con- sumeable commodity; and such annual tax on it, is on the expence of the owner. I am inclined to think, but of this I do not give a judicial opinion, that the direct taxes contemplated by the constitution, are only two, to wit, a capitation, or poll tax, simply, without regard to property, profession, or any other circumstance; and a tax on land. — 1 doubt whether a tax, by a general assess- ment of personal property, Avithin the United States, is included within the term "direct" tax. As I do not think the tax on carriages is a direct tax, it is unnecessary, at this time, for me to determine, whether this court, con- stitutionally possesses the power to declare an act of congress void, on the ground of its being made contrary to, and in violation of, the constitution; but if the court have such power, I am free to declare, that I will never exercise it, but in a very clear case. Mr. Justice PATTERSON, Mr. Justice WILSON, and Mr. Justice IREDELL, con- cur. LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. Ib7- POLLOCK V. FARMERS' LOAN & TRUST (JO. et al.i (15 Sup. Ct. 673, 157 U. S. 429.) Supreme Court of the United States. April 8, 1895. (No. 893.) Appeal from the Circuit Court of the Unit- ed States for the Southern District of New York. This was a bill filed by Charles Pollock, a citizen of the state of Massachusetts, on be- half of himself and all other stockholders of the defendant company similarly situated, against the Farmers' Loan & Trust Company, a corporation of the state of New York, and its directors, alleging that the capital stock of the corporation consisted of $1,000,000, di- vided into 40,000 shares of the par value of ?25 each; that the company was authorized to invest its assets in public stocks and bonds of the United States, of individual states, or of any incoiioorated city or county, or in such real or personal securities as it might deem proper; and also to take, accept, and execute all such trusts of every descrip- tion as might be committed to it bj' any per- son or persons or any corporation, by grant, assignment, devise, or bequest, or by order of any court of record of New York, and to receive and take any real estate which might be the subject of such trust; that the prop- erty and assets of the company amounted to more than $5,000,000, or which at least .?1,- 000,000 was invested in real estate owned by the company in fee, at least $2,000,000 in bonds of the city of New York, and at least $1,000,000 in the bonds and stocks of other corporations of the United States; that the net prolits or income of the defendant com- pany during the year ending December 31, 1894, amounted to more than the sum of $300,000 above its actual operating and busi- ness expenses, including losses and interest on bonded and other indebtedness; that from its real estate the company derived an in- come of $50,000 per annum, after deducting all county, state, and municipal taxes; and that the company derived an income or profit of about $60,000 per annum from its invest- ments in municipal bonds. It was further alleged that under and by virtue of the powers conferred upon the com- pany it had from time to time taken and exe- cuted, and was holding and executing, nu- merous trusts committed to the company by many persons, copartnerships, unincorporated associations, and corporations, by grant, as- signment, devise, and bequest, and by orders of various courts, and that the company now held as trustee for many minors, individuals, copartnerships, associations, and corpora- tions, resident in the United States and else- where, many parcels of real estate situated in the various states of the United States, and amounting in the aggregate, to a value 1 Opinion of Mr. .Justice Field and dissenting opinion of Mr. Justice Harlan are omitted. exceeding $5,000,000, the rents and income of which real estate collected and received by said defendant in its fiduciary capacity annu- ally exceeded the sum of $200,000. The bill also averred that complainant was, and had been since May 20, 1892, the OAvner and registered holder of 10 shares of the capital stock of the company, of a value ex- ceeding the sum of $5,000; that the capital stock was divided among a large number of different persons, who, as such stockholders, constituted a large body; that the bill was filed for an ob.iect common to them all, and that he therefore brought suit not only in his own behalf as a stockholder of the com- pany, but also as a representative of and on behalf of such of the other stockholders simi- larly situated and interested as might choose- to intervene and become parties. It was then alleged that the management of the stock, property, affairs, and concerns of the company was committed, imder its acts of incorporation, to its directors, and charged that the company and a majority of its directors claimed and asserted that under and by virtue of the alleged authority of the provisions of an act of congress of the Unit- ed States entitled "An act to reduce taxation, to provide revenue for the government, and for other purposes," passed August 15, 1894, the company was liable, and that they in- tended to pay, to the United States, before July 1, 1895, a tax of 2 per centum on the net profits of said company for the year ending December 31, 1894, above actual operating and business expenses, including the income derived from its real estate and its bonds of the city of New York; and that the directors- claimed and asserted that a similar tax must be paid upon the amount of tlie incomes, gains, and profits, in excess of $4,000, of all minors and others for whom the company was acting in a fiduciary capacity. And, fur- ther, that the company and its directors had avowed their intention to make and file with the collector of internal revenue for the Sec- ond district of the city of New York a list, return, or statement showing the amount of' the net income of the company received dur- ing the year 1894, as aforesaid, and likewise to make and render a list or return to said collector of internal revenue, prior to that date, of the amount of the income, gains and. profits of all minors and other persons hav- ing incomes in excess of $3,500, for whom the company was acting in a fiduciary capacity. The bill charged that the- provisions in re- spect of said alleged income tax incorporated in the act of congress were unconstitutional, null, and void, in that the tax was a direct tax in respect of the real estate held and OAvned by the company in: its own right and in its fiduciary capacity as aforesaid, by be- ing imposed upon the rents, issues, and prof- its of said real estate, and was likewise a di- rect tax in respect of its personal property and the personal property held by it for oth- ers for whom it acted . in., its fiduciary capac- 1-^8 THE I'owKi; or taxation, ity as aforesaid, which direct taxes were not. in and by said act, apportioned anions the several states, as required by section '2 of ar- ticle 1 of the constitution; and that, if the income tax so incorporated in the act of con- gress aforesaid were held not to be a direct tax, nevertheless its provisions were iincon- stitntioual, null, and void, in that they were not uniform throughout the United States, as required in and by section 8 of article 1 of the constitution of the I'nited States, upon many jironnds and in many particulars spe- cifically set forth. The bill further charged that the income- tax provisions of the act were likewise im- constitutional. in that they imposed a tax on incomes not taxable under the constitution, and likewise income derived from the stfx-ks and bonds of the states of the T'nited States, and counties and municipalities therein, which stocks and bonds are among the meass and instrumentalities employed for carrying on their i-espective governments, and are not proper subjects of the taxing ]iower of con- gress, and which stales and their counties and muncipalities are independent of the gen- eral government of the United States, and the respective stocks and bonds of which are, together with the power of the states to borrow in any form, exempt from fedei'al taxation. Other grounds of unconstitutionality were assigned, and the violation of articles 4 and 5 of the constitution asserted. The bill further averred that the suit was not a collusive one. to confer on a court of the United States jurisdiction of the case, of which it would nor otherwise have cogni- sance, and that complainant had re(inested the company and its directors to omit and I'efuse to pay said income tax. and to con- test the constitutiiinality of said act. and to refrain from voluntarily making lists, returns, and statements on its own behalf and on be- half of the minors and other persons for Avhom it was acting in a fiduciary capacity, and to apply to a court of competent jurisdic- tion to determine its liability under said act; but that the company and a majority of its directors, after a meeting of the directors, at which the matter and the request of com- plainant were formally laid before them for action, had refused, and still refuse, and in- tend omitting, to comply with complainant's demand, and had resolved and detei-mined and intended to comply with all and singular the provisions of the said act of congress, and to pay the tax upon all its net profits or income as aforesaid, including its rents from real estate and its income from municipal bonds, and a copy of the refusal of the com- pany was annexed to the complaint. It was also alleged that if the company and its directors, as they proposed and had declared their intention to do, should pay the tax out of its gains, income, and profits, or out of the gains, inionie, and piofits of the property held by it in its fiduciary capacity. I they will diminish the assets of the company and lessen the dividends thereon and the I value of the shares; that voluntary compli- ance with the income-tax ])rovisions would j expose the company to a multiplicity of suits, not only by and on behalf of its numerous shareholders, but by and on behalf of numer- ; ous minors and othei's for whom it acts in a I fiduciary capacity, and that such numerous suits would work irieparable injury to the business of the company, and subject it to great and irreparable damage, and to liabil- ity to the beneficiaries aforesaid, to the ir- reparable damage of complainant and all its > shaieholders. The bill further averred that this was a suit of a civil nature in ecputy: that the mat- ter in dispute exceeded, exclusive of costs, the sum of iFr),(iO(), and arose under the con- stitution or laws of the Ignited States; and ' that there was furthermore a controversy be- ; tween citizens of different states. I The prayer was that it might be adjudged 1 and decreed that the said j^rovisions known ' as the income tax incorporated in .said act ot congress passed August l.">. 1S94, are uncon- stitutional, null, and void; that the defend- ! ants be restrained from voluntarily comply- ■ ing with the provisions of saiu act. and mak- ing the lists, returns, and statements above referred to, or paying the tax aforesaid; and foi' general relief. Tlie defendants demurred on the ground of want of equity, and. the cause having been brought on to be heard upon the bill and de- nnu'rer thereto, the demurrer was sustained, and the bill of complaint dismissed, with costs, whereupon the record recited that the constitutionality of a law of the United States was diawn in question, and an appeal was allowed directly to this court. An absti-act of the act in question will be found in the margin. 2 2 By sections 127-37 inclusive of the act of con- gress cntitlcil "An act to reduce taxation, to providi> revciHio for the government, and for other purpcscs." received by the president August 5"). 18U4. and which, not having been returned by him to the house in which it origi- nated within the time prescribed by the con- stitution of the T'nited States. l)ec;une a law without approval (2S Stat. ."()!). c. .■>4!)). it was provided tliat from and iiftei- .lanuuiy 1. IS!)"), and until .Tanuary 1. 1!MK). "there shall be as- sessed, levieil. collected, and paid annually up(m the gains, profits, and income received in the preceding calendar year by every citizen of the Unitc'l States, whether residing at liome or abroad, and every person residing therein, whether said gains, profits, or income be de- rived from any kind of ])roiierty. rents, inter- est, dividends, or salaries, or from any profes- sion, trade, enioloynient. or vocation carried on in the United States or elsewhere, or from any other sour<-e whatever, a tax of two per centum on the amount so deriv(Nl over and above four thousand dollars, and :i like tax shall l)e levieil. collected, and paid annually upon the gains, profits, and income from all projierty owned and of every business, trade, or profession carried on in the United States by persons residing without the United States. ♦ * * "Sec. 28. That in estimating the gains, profits, and income of any person there shall be in- UMITxlTIOXS IMPOSED BY FEDELIAL CONSTITUTION. 139 By the third chiuse of section 2 of article 1 of tlie constitution it was provided: '"Ilepre- sentatives and direct taxes shall be appor- tioned among the several states which may be included within this Union, according to their respective numbers, which shall be de- termined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indhuis not taxed, three-fifths of all other persons." This was amended by the second section of the fourteenth article, declared ratified July 28, 1868, so that the whole number of per- sons 'n each state should be counted. In- cluded all income derived from interest upon note.s. bonris. and otlier secnrities. excei)t such bond.s of the iTnited States the principal and in- terest of which are by the. law of their issuance exempt from all federal taxation; profits real- ized within tlip year from sales of real estate purchased within two years previous to the close of the year for which income is estimated: in- teiest received or accrued upon all notes, honds. mortgages, or other forms of indebted- ness bearinj;: interest, whether paid or not. if prood and collectible, less the interest which has 1)ecome due from said person or which has been t)ald by him during the year: the amount of all premium on bonds, notes, or coupons: the amount of sales of live stock, sufjar, cotton, wool, butter, cheese, pork, beef, mutton, or oth- er meats, hay. and grain, or other vegetable or other prodxictions. beins the growth or prodtice of the estate of such person, less the amount ex- pended in the purchase or production of said stfick or produce, and not including any part thereof consumed directly by tht' family: money and the value of all persona! property acquired by gift or inheritance; all other gains, profits, and income derived from any source whatever except that portion of the salary, compensation, or pay received for services in the civil, mili- tary, naval, or other service of the United States, including senators, representatives, and delegates in congress, from which the tax has been deducted, and except that portion of any salary upon which the employer is required by law to withhold, and does withhold the tax and j)ays the same to the officer authorized to receive it. In computing incomes the necessary ex- jicnses actually incurred in carrying on any busi- ness, occupation, or profession shall be deduct- ed and also all interest due or paid within the year by such person on existing indebtedness. And all national, state, county, school, and municipal taxes, not includins:: those assessed again.st local benefits, paid within the year shall be deducted from the gains, profits, or income of the person who has actually paid the same, whether such person be owner, tenant, or mort- Sfagor: also losses actnall.v sustained during the year, incurred in trade or arising from firths, storms, or shipwreck, and not compen- sated for by insurance or otherwise, and debts ascertained to be worthless, hut excluding: all estimated depreciation of vabns and losses with- in the year on sales of real estate purchased within two years previous to the year for which income is estimated: provided, that no de- duction shall be made for any amount jjaid rin,a: it. and may inci-i'ase the amount of any list or return if he has )-eason to believe that the same is understat- ed: and in case any such person bavins a tax- able income shad neslect or refuse to make and render such list and return, or shall render a willfully false or fraudulent list or return, it shall be the duty of the collector or deputy col- lector, to make such list, according to the best infornuition he can obtain, by the examination of such person, or any other evidence, and to add fifty i)er centum as a penalty to the amount of the tax due on such list in all cases of willful neslect (tr i-efusal to make and render a list or return: and in all cases of a willfully false or fraudulent list or return having been rendered to add one hundred per centum as a penalty to the amount of tax ascertained to be due, the tax 140 THE PO^\ER OF TAXATION. defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States." And the third clause thus: "To regulate commerce with foreign nations, and among the several states, and with the In- dian tribes." The fourth, fifth, and sixth clauses of sec- tion 9 are as follows: "No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken. and the additions thereto as a penalty to be as- sessed and collected in the manner provided for in other cases of willful neglect or refusal to render a list or return, or of rendering a false or fraudulent return." A proviso was added that any person or corporation might show that he or its ward had no taxalile income, or that the same had been paid elsewhere, and the collector might exemot from the tax for that year. "Any person or company, cori>oration, or association feeling aggrieved by the decision of the deputy collector, in such cases may appeal to the col- lector of the district, and his decision thereon, unless reversed by tlie commissioner of internal revenue, slinl' be final. If dissatisfied with the decision of the collector such person or corpora- tion, company, or association may submit the case, with all the paners, to the commissioner of internal revenue for his decision, and may furnish the testimony of witnesses to prove any relevant facts having served notice to that ef- fect upon the commissioner of internal revenue, as herein prescribed." Provision was made for notice of time and place for taking testi- mony on both sides, and that no penalty should be assessed until after notice. By section 30, the taxes on incomes were made payable on or before July Ist of each year, and 5 per cent, penalty levied on taxes un- paid, and interest. By section HI, any non-resident misrht re- ceive the benefit of the exemptions provided for, and "in computing income he shall include all in- come from every source, but unless he be a citi- zen of the United States he shall only pay on that part of the income which is derived from any sonrce in the United States. In case such non-resident fails to file such statement, the col- lector of each district shall collect the tax on the income derived from property situated in his district, subject to income tax. making no al- lowance for exemptions, and all property be- longing to such non-resident shall be liable to distraint for tax: provided, that non-resident corporations shall be subject to the same laws as to tax as resident corporations, and the col- lection of the tax shall be made in the same manner as provided for collections of taxes against non-resident persons." "Sec. 32. That there shall be assessed, levied, and collected, except as herein otherwise provid- ed, a tax of two per centum annually on the net profits or income a1:ove actual operating and business expenses, including expenses for mate- rials purchased for manufacture or bought for resale, losses^ and interest on bonded and other indelitedness of all banks, banking institutions, trust companies, saving institutions, fire, ma- rine, life, and other insurance companies, rail- road, canal, turnpike, canal navigation, slack water, telephone, telegranh, express, electric light, gas, water, street railway companies, and all other corporations, companies, or associa- tions doing business for profit in the United States, no matter how created and organized but not including partnerships." The tax is made payable "on or before the first day of July in each year; and if the presi- dent or other chief ofiicer of any corporation, company, or association, or in the case of any "No tax or duty shall be laid on articles exported from any state. "No preference shall be given by any regu- lation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to, or from, one state, be obli- ged to enter, clear, or pay duties in another." It is also provided by the second clause of section 10 that "no state shall, without the consent of the congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws"; and, by the third clause, foreign corporation, company, or association, the resident manager or agent shall neglect or refuse to tile with the collector of the inl<'rnal revenue »listrict in which said corporati.'.n, company, or as- sociation shall be located or l)e engaged in busi- ness, ii statement verified by his oath or affirma- tion, in such form as shall be prescrilied by the commissioner of internal revenue, with the apiiroval of the secretary of the treasury, show- ing the amount of net profits or income received by said corporation, conniany. or association during the whole calendar year last preceding the date of filing said statement as hereinafter required, the corjioration. company, or associa- tion making default shall forfeit as a penalty the sum of one thousand dollars and two per centum on the amount of taxes due, for each month until the same is paid, the payment of said penalty to be enforced as provided in other cases of neclect and "refusal to make return of taxes under the internal revenue laws. "The net profits or income of all corpora- tions, companies, or associations shall include the amounts ]iaid to shareholders, or carried to the account of any fund, or used for construc- tion, enlargement of plant, or any other ex- penditure or investment paid from the net an- nual profits made or acquired by said corpora- tions, companies, or associations. "That nothing herein contained shall apply to states, counties, or municipalities: nor to corporations, com]>anies. or associations or- ganized and conducted solely for charitable, re- ligious, or educational purposes, including fra- ternal beneficiary societies, orders, or associa- tions operating upon the lodge system and pro- viding for the payment of life, sick, accident, and other benefits to the members of such so- cieties, orders, or associations and dependents of such memuers; nor to the stocks, shares, fvmds, or securities held by any fiduciary or trustee for charitable, religious, or educational pur- poses: nor to budding and loan associations or companies which make loans only to their share- holders; nor to such savings banks, savings in- stitutions or societies as shall, first, have no stockholders or members except depositors ami no capital except deposits; secondly, shall not receive deposits to an aggregate amount, in any one year, of more than one thousand dollars from the same depositor: thirdly, shall not al- low an accumulation or total of deposits, by any one depositor, excecnling ten thousand dollars; fourthly, shall actually divide and distribute to its depositors, ratably to deposits, all the earnings over the necessary and proper expenses of such bank, institution, or society, excejit such as shall be applied to surplus; fifthly, shall not possess, in any form, a surplus fund ex- ceeding ten per centum of its aggregate depos- its; nor to such savings banks, savings institu- tions, or societies composed of members who do not participate in the profits thereof and which pay interest or dividends only to their depositors; nor to that jiart of the business of any savings bank, institution, or other simi- lar association having a capital stock, that is conducted on the mutual plan solely for the benefit of its depositors on such plan, and which shall keep its accounts of its business conducted LIMITATIONS IMPOSED BY FEDERAL COXSTITUTIOJT. 141 that "no state shall, without the consent of •congress, lay any duty of tonnage." The fli-st clause of section 9 provides: "The migi-ation or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the congress prior to the year one thousand eight hundi-ed and eight, but a tax or duty may be imposed on such importations, not exceeding ten dollars for each person." Article 5 prescribes the mode for the amendment of the constitution, and con- cludes with this proviso: "Provided, that no on such mutual plan separate and apart from its other accounts. "Nor to any insurance company or association which conducts all its business solely upon the mutual plan, and only for the benefit of its policy holders or members, and having no capi- tal stock and no stock or shareholders, and hold- ing all its property in trust and in reserve for its policy holders or members; nor to that part of the business of any insurance company hav- ing a capital stock and stock and shareholders, which is conducted on the mutual plan, sepa- rate from its stock plan of insurance, and sole- ly for the benefit of the policy holders and mem- bers insured on said mutual plan, and holding all the property belonging to and derived from said mutual part of its business in trust and re- serve for the benefit of its policy holders and members insured on said mutual plan. "That all state, county, municipal, and town taxes paid by corporations, companies, or as- sociations, shall be included in the operating and business expenses of such corporations, companies, or associations. "Sec. 33. That there shall be levied, collected, and paid on all salaries of ofEcers, or payments for services to persons in the civil, military, na- val, or other employment or service of the Unit- ed States, including senators and representa- tives and delegates in congress, when exceeding the rate of four thousand dollars per annum, a tax of two per centum on the excess above the said four thousand dollars; and it shall be the duty of all paymasters and all disbursing offi- cers under tho government of the United States, or persons in the employ thereof, when making any payment to a\iy officers or persons as afore- said, whose compensation is determined by a fixed salary, or upon settling or adjusting the accounts of such officers or persons, to deduct and withhold the aforesaid tax of two per cen- tum; and the pay roll, receipts, or accoxmt of officers or persons paying such tax as aforesaid shall be made to exhibit the fact of such pay- ment. And it shall be the duty of the ac- counting officers of the treasury department, when auditing the accounts of any paymaster ■or disbursing officer, or any officer withholding his salary from moneys received by him, or when settling or adjusting the accounts of any such officer, to require evidence that the taxes mentioned in this section have been deducted and paid over to the treasurer of the United States, or other officer authorized to receive the same. Every corporation which pays to any employe a salary or compensation exceeding four thousand dollars per annum shall report the same to the collector or deputy collector of his district and said employe shall pay thereon, subject to the exemptions herein provided for, the tax of two per centum on the excess of his salary over four thousand dollars: provided, that salaries due to state, county, or municipal officers shall be exempt from the income tax herein levied." Bv section 34. sections 3167, 3172, 3173, and S17G of the Revised Statutes of the United States as amended were amended so as to provide that it should be unlawful for the col- lector and other officers to make known, or to amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article." Jos. H. Choate, C. A. Seward, B. H. Bris- tow, Wm. D. Guthrie, .David Willcox, Charles Steele, and Charles F. Southmayd, for appel- lants Pollock and Hyde. Herbert B. Turner, for appellee Fanners' Loan & Trust Compa- ny. James C. Carter, Wm. C. Gulliver, and P. B. Candler, for appellee Continental publish, amount or source of income, under pen- alty; that every collector should "from time to time cause his deputies to proceed through every part of his district and inquire after and con- cerning all persons therein wdio are liable to pay any internal revenue tax, and all persons own- ing or having the care and management of any objects liable to pay any tax, and to make a list of such persons and enumerate said objects"; that the tax returns must be made on or before the first Monday in March; that the collectors may make returns when particulars are fur- nished; that notice be given to absentees to render returns; that collectors may summon persons to produce books and testify concerning returns; that collectors may enter other dis- tricts to examine persons and books, and may make returns; and that penalties may be im- posed on false returns. By section 3.5 it was provided that corpora- tions doing business for profit should make re- turns on or before the first Monday of March of each year "of all the following matters for the whole calendar year last preceding the date of such return: "First. The gross profits of such corporation, company, or association, from all kinds of busi- ness of every name and nature. "Second. The expenses of such corporation, company, or association, exclusive of interest, annuities, and dividends. "Third. The net profits of such corporation, company, or association, without allowance for interest, annuities, or dividends. "Fourth. The amount paid on account of in- terest, annuities, and dividends, stated sepa- rately. "Fifth. The amount paid in salaries of four thousand dollars or less to each person em- ployed. "Sixth. The amount paid in salaries of more than four thousand dollars to each person employed and the name and address of each of such persons and the amount paid to each." By section 36, that books of account should be kept by corporations as prescribed, and in- spection thereof be granted under penalty. By section 37 provision is made for receipts for taxes paid. By a joint resolution of February 21, 1895, the time for making returns of income for the year 1894 was extended, and it was provided that "in computing incomes under said act the amounts necessarily paid for fire insurance pre- miums and for ordinary repairs shall be de- ducted"; and that "in computing incomes un- der said act the amounts received as dividends upon the stock of any corporation, comixiny or association shall not be included in case such dividends are also liable to the tax of two per centum upon the net profits of said corporation, company or association, although such tax may not have been actually paid by said cor- poration, company or association at the time of making returns by the person, corporation or association receiving such dividends, and re- turns or reports of the names and salaries of employes shall not be renuired from employ- ers unless called for by the collector in order to verify the returns of employes." 142 THE rOWEU OF TAXATION. Trust roiiipauy. Attorney (Jcncnil olnoy and AssistiHit Attorney General \\'liitney, for tbe I'nited States. Mr. Chief Justice FULLER. after statiuj; the facts in the forefjoing language, delivered the opinion of the court. The jurisdiction of a court of equity to pre- vent any threatened breach of trust in the inisai>plication or diversion of the funds of a <-oi'i»onilion by illegal payments out of its capital or profits has been freciuently sus- tained. Dodge V. Woolsey. 18 How. 331; llawes V. Oakland. 104 U. S. 450. As in Dodge v. Woolsey, this bill proceeds on the ground that the defendants -would be guilty of STich brea<'h of trust or duty in vol- luitarily making returus foi' the imposition of. and paying, an unconstitutional tax: and also on allegations of threatened multiplicity of suits and ineparable in.jui-y. The objection of adequate remedy at law was not raised below, nor is it now raised by appellees, if it coidd l>e entertained at all at this stage of the proceedings; and. so far as it was within the power of the government to do so, the question of jurisdiction, for the purposes of the case, was explicitly waived on the argument. The relief sought was in respect of voluntai-y action by the defendant company, and not in respect of the assess- ment and collection them.selves. Under these circumstances, we should not be justified in declining to proceed to judgment upon the merits. I'elton v. Bank, 101 U. S. 143, 14S; Cummings v. Bank, Id. IHo. ir>7; Keynes v. Dumont. 130 U. S. 354, 9 Sup. Ct. 4S(>. Since the opinion in Marbury v. Madison, 1 Cranch, 137. 177, was delivered, it has not been doubted that it is within judicial com- petency, by express provisions of the constitu- tion or by necessary inference and implica- tion, to determine whether a given law of the United States is or is not made in pursuance of the constitution, and to hold it valid or void accordingly. "If," said Chief .Tustice Mai'shall, "both the law and the constitution apply to a particular case, so that the court must either decide that ca.se conformably to the law. disregarding the constitution, or con- formably to the constitution, disregarding the law, the court must detei'uiine which of these conflicting rules governs the case. This is of the very essence of judicial duty." And the chief justice added that the doc- trine "that courts must close their eyes on the constitution, and see only the law." "would subvert the very foundation of all written constitutions." Necessarily the pow- er to declare a law unconstitutional is al- ways exercised with reluctance; but the du- ty to do so, in a proper case, cannot be de- clined, and must be discharged in accordance with the deliberate judgment of the tribunal in which the validity of the enactment is di- rectly drawn in question. The contention of the complainant is: First. That the law in question, in impos- ing a tax on the income or rents of real es- tate, imposes a tax upon the real estate it- self; and in imposing a tax on the interest or other income of bonds or other personal property, held for the purposes of income or ordinarily yielding income, imposes a tax up- on the personal estate itself; that such tax is a direct tax, and void because imposed without regard to the rule of apportionment: and that l)y reason thereof the whole hiw is invalidated. Second. That the law is invalid, because imposing indirect taxes in violation of the constitutional requirement of uniformity, and therein also in violation of the implied limitation upon taxation that all tax laws must a]>ply equally, impartially. and uniform- ly to all similai-ly situated. Under the sec- ond head, it is contended that the rule of uni- formity is violated, in that the law taxes the income of certain corporations, companies, and associations, no matter how created or organized, at a higher rate than the incomes of individuals or partnerships derived from precisely similar property or business; in that it exempts from the operation of the act and from the burden of taxation numerous corporations, companies, and associations hav- ing similar property and carrying on similar business to those expressly taxed; in that it denies to individuals deriving their income from shares in certain conjorations, compa- nies, and associations the benetit of the ex- emption of $4,(X)0 granted to other persons Interested in similar proi)erty and business; in the exemption of l);4,000; in the exemption of building and loan associations, savings banks, mutual life, tire, marine, and accident insurance companies, existing solely for the pecuniary profit of their members, — these and other exemptions being alleged to be purely arbitrary and capricious, justitied l)y no pub- lic purpose, and of such magnitude as to in- validate the entire enactment; and in other particulars. Third. That the law is invalid so far as imposing a tax upon income received from state and municipal bonds. The constitution provides that representa- tives and direct taxes shall be apportioned among the several states according to num- bers, and that no direct tax shall be laid ex- cept according to the enumeration provided for; and also that all duties, imposts, and ex- cises shall be uniform throughout the Unit- ed States. The men who framed and adopted that in- strument had just emerged from the sti-uggle for independence whose rallying cry had been that "taxation and representation go togeth- er." The mother country had taught the col- onists, in the contests Avaged to establish that taxes could not be imposed by the sovereign except as they were granted by the repre- sentatives of the realm, that self-taxation con- stituted the main security against opp'-.'ssion. As Burke declared, in his speech on concilia- LIMITATIONS IMPOSED BY FEDERAL COXSTITUTION. U?y tion with America, tlie defenders of tlie ex- cellence of the English constitution "took in- finite pains to inculcate, as a fundamental principle, that, in all monarchies, the people Qiust, in effect, themselves, mediately or im- mediately, possess the power of granting their own money, or no shadow of liberty could subsist." The principle was that the consent of those who were expected to pay it was essential to the validity of any tax. The states were about, for all national pur- poses embraced in the constitution, to become one, united under the same sovereign author- ity, and governed by the same laws. But as they still retained their jurisdiction over all persons and things within their territorial limits, except where surrendered to the gen- eral government or restrained by the constitu- tion, they were careful to see to it that taxa- tion and representation should go together, so that the sovereignty reserved should not be im- paired, and that when congress, and especial- ly the house of representatives, Avhere it was specifically provided that all revenue bills must originate, voted a tax upon property, it should be with the consciousness, and under the responsibility, that in so doing the tax so voted would proportionately fall upon tlie im- mediate constituents of those who imposed it. More than this, by the constitution the states not only gave to the nation tlie concur- rent power to tax persons and property di- rectly, but they surrendered their own poAver to levy taxes on imports and to regulate com- merce. All the 13 were seaboard states, but they varied in maritime importance, and differ- ences existed between them in population, in wealth, in the character of pi'operty and of business interests. ^Moreover, they looked for- ward to the coming of new states from the great West into the vast empire of their an- ticipations. So when the wealthier states as between themselves and their less favored as- sociates, and all as between themselves and those who were to come, gave up for the com- mon good the great sources of revenue de- rived through commerce, they did so in re- liance on the protection afforded by restric- tions on the grant of power. Thus, in the matter of taxation, the consti- tution recognizes the two great classes of di- rect and indirect taxes, and lays down two rules by which their imposition must be gov- erned, namely, the rule of apportionment as to direct taxes, and the rule of uniformity as to duties, imposts, and excises. The rule of uniformity was not prescribed to the exercise of the power granted by the first paragraph of section 8 to lay and col- lect taxes, because the rule of apportionment as to taxes had already been laid down in the third paragraph of the second section. And this view was expressed bj'^ Mr. Chief Justice Chase in The I.iicense Tax Cases, 5 Wall. 4(j2. 471. when he said: "It is true that the power of congress to tax is a very exten- sive power. It is given in the constitution with only one exception and only two quali- fications. Congress cannot tax exports, and it must impose direct taxes by the rule of ap- portionment, and indirect taxes by the rule of uniformity. Thus limited, and thus only, it reaches every subject, and may be exer- cised at discretion." And although there ha'S'e been, from time to time, intimations that there might be some tax which was not a direct tax. nor included under the words "duties, imports, and ex- cises." sucli a tax, for more than 100 years of national existence, has as yet remained un- discovered, notwithstanding the stress of par- ticular circumstances has invited tliorough in- vestigation into sources of revenue. The first question to be considered is wheth- er a tax on the rents or income of real estate is a direct tax within the meaning of the constitution. Ordinarily, all taxes paid pri- marily by persons who can shift the burden upon some one else, or who are under no legal compulsion to pay them, are considered indi- rect taxes; but a tax upon property holders in respect of their estates, whether real or personal, or of the income yielded by such es- tates, and the i)ayment of Avhich cannot be avoided, are direct taxes. Nevertheless, it may be admitted that, although this definition of direct taxes is prima facie correct, and to be applied in the consideration of the question before us, yet that tlie constitution may bear a different meaning, and that such different meaning must be recognized. But in arriving at any conclusion upon this point we are at liberty to refer to the historical circumstan- ces attending the framing and adoption of the constitution, as well as the entire frame and scheme of the instrument, and the conse- quences naturally attendant upon the one con- j struction or the other. j We inquire, therefore, what, at the time [ the constitution was framed and adopted, i were I'ecogni/ed as direct taxes? What did ■ those who framed and adopted it understand the terms to designate and include? We must remember that the 55 members of the constitutional convention were men of great sagacity, fully conversant Avith govern- mental problems, deeply conscious of the na- ture of their task, and profoundly convinced that they were laying the foundations of a vast future empire. "To many in the as- sembly the work of the great French magis- trate on the 'Spirit of liaws,' of which Wash- ington with his own hand had copied an ab- stract by Madison, Avas the faA^orite manual. Some of them had made an analysis of all fedei-al governments in ancient and modern times, and a few were well versed in the best English, Swiss, and Dutch writers on government. They had immediately before them the example of Great Britain, and they had a still better school of political wisdom in the republican constitutions of their sev- eral states, which many of them had assisted to frame." 2 Bancr. Hist. Const. 9. The Federalist demonstrates the value at- tached by Hamilton, Madison, and Jay to 144 THE POWER OF TAXATION. historical experience, and sliows tliat tliey had made a careful study of many forms of government. Many of the framers were par- ticularly versed in the literature of the pe- riod, — Franklin, Wilson, and Hamilton for ex- ;ample. Turgot had published in 1764 his work on taxation, and in 17(i(j his essay on "The Formation and Distribution of Wealth," while Adam Smith's "Wealth of Nations" was published in 1770. Franklin, in 176G. had said, upon his examination before the house of commons, that: "An external tax is a duty laid on commodities imported; that duty is added to the first cost and other charges on the commodity, and, Avhen it is •offered to sale, makes a part of the price. If the people do not like it at that price, they refuse it. They are not obliged to pay it. But an internal tax is forced from the people without their consent, if not laid by their own representatives. The stamp act says we shall have no commerce, make no exchange of property with each other, neither purchase nor grant, nor recover debts; we shall nei- ther marry nor make our wills, — unless we pay such and such sums; and thus it is in- tended to extort our money from us, or ruin us by the consequences of refusing to pay." IG Pari. Hist. 144. They were, of coiu-se. familiar with the modes of taxation pursued in the several states. From the report of Oliver Wolcott, when secretary of the treasury, on direct taxes, to the house of representatives, De- cember 14, 1790,— his most important state paper (Am. St. P. 1 Finance, 431),— and the various state laws then existing, it appears that prior to the adoption of the constitu- tion nearly all the states imposed a poll tax, taxes on land, on cattle of all kinds, and various kinds of personal property, and that, in addition, Massachusetts, Connecticut, Penn- sylvania, Delaware, New Jersey, Virginia, and South Carolina assessed their citizens upon their profits from professions, trades, and employments. Congress, under the articles of confedera- tion, had no actual operative power of taxa- tion. It could call upon the states for their respective contributions or quotas as pre- viously determined on; but. in case of the failure or omission of the states to furnish such contribution, there were no means of compulsion, as congress had no power what- ever to la.y any tax upon individuals. This imperatively demanded a remedy; but the opposition to granting the power of direct taxation in addition to the substantially ex- clusive power of laying imposts and duties was so strong that it required the conven- tion, in securing effective powers of taxation to the federal government, to use the utmost care and skill to so harmonize conflicting interests that the ratification of the instru- .ment could be obtained. The situation and the result are thus de- scribed by Mr. Chief Justice Chase in Lane Co. V. Oregon, 7 Wall. 71, 70: "The people of the United States constitute one nation, under one government; and tliis government, within the scope of the powers with which it is invested, is supreme. On the other hand, the people of each state compose a state, having its own government, and en- dowed with all the functions essential to separate and independent existence. The states disunited might continue to exist. Witliout the states in union, there could be no such political body as the United States. Both the states and the T'nited States ex- isted before the constitution. The people, through that instrument, establish'Cd a more perfect union by substituting a national gov- ernment, acting, with ample power, directly upon the citizens, instead of the confederate government, which acted, with powers great- ly restricted, only upon the states. But in many articles of the constitution the neces- sary existence of the states, and, within their proper spheres, the independent authority of the states, is distinctly recognized. To them nearly the whole charge of interior regula- tion is committed or left; to them and to the people all powers not expressly delegated to the national government are reserved. The general condition was well stated by Mr. Madison in the Federalist, thus: 'The fed- eral and state governments are in fact but different, agents and tnistees of the people, constituted with different powers, and des- ignated for different purposes.' Now, to the existence of the states, themselves necessary to the existence of the United States, the power of taxation is indispensable. It is an essential function of government. It was ex- ercised by the colonies; and when the col- onies became' states, both before and after the formation of the confederation, it was exercised by the new governments. Under the articles of confederation the government of the United States was limited in the ex- ercise of this power to requisitions upon the states, while the whole power of direct and indirect taxation of persons and property, whether by taxes on polls, or duties on im- ports, or duties on internal production, man- ufacture, or use. was acknowledged to belong exclusively to the states, without any other limitation than that of noninterference with certain treaties made by congress. The con- stitution, it is true, greatly changed this condition of things. It gave the power to tax, both directly and indirectly, to the na- tional government, and, subject to the one prohibition of any tax upon exports, and to the condition of uniformity in respect to in- direct, and of proportion in respect to direct, taxes, the power was given without any ex- press reservation. On the other hand, no power to tax exports, or imports except for a single purpose and to an insignificant ex- tent, or to lay any duty on tonnage, was per- mitted to the states. In respect, however, to property, business, and persons, within their respective limits, their power of taxation re- mained and remains entire. It is, indeed, a LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 145 concurrent power, and in the case of a tax on the same subject by both governments the claim of the United States, as the su- preme authority, must be prefeiTed; but with this qualification it is absolute. Tlie ex- tent to which it shall be exercised, the sub- jects upon which it shall be exercised, and the mode in which it shall be exercised, are all equally within the discretion of the leg- islatures to which the states commit the ex- ercise of the power. That discretion is re- strained only by the will of the people ex- pressed in the state constitutions or through elections, and by the condition that it must not be so used as to burden or embarrass the operations of the national government. There is nothing in the constitution which contemplates or authorizes any direct abridg- ment of this power by national legislation. To the extent just indicated it is as com- plete in the states as the like power, within the limits of the constitution, is complete in congress." On May 29, 1787, Charles Pinckney pre- sented his draft of a proposed constitution, which provided that the proportion of direct taxes should be regulated by the whole num- ber of inhabitants of every description, taken in the manner prescribed by the legislature, and that no tax should be paid on articles exported from the United States. 1 Elliot, Deb. 147, 148. Mr. Randolph's plan declared "that the right of suti'rage, in the national legislature, ought to be proportioned to the quotas of contribution, or to the number of free in- habitants, as the one or the other may seem best, in different cases." 1 Elliot, Deb. 143. On June 15, Mr. Paterson submitted several resolutions, among which was one proposing that the United States in congress should be authorized to make requisitions in propor- tion to the whole number of white and other free citizens and inhabitants, including those bound to servitude for a term of years, and three-fifths of all other persons, except In- dians not taxed. 1 ElHot, Deb. 175, 176. On the 9th of July, the proposition that the legislature be authorized to regulate the num- ber of representatives according to wealth and inhabitants was approved, and on the 11th it was voted that, "in order to ascertain the alterations that may happen in the popu- lation and wealth of the several states, a census shall be taken," although the resolu- tion of which this formed a part was de- feated. 5 Elliot, Deb. 288, 295; 1 Elliot, Deb. 200. On July 12th, Gov. Morris moved to add to the clause empowering the legislature to vary the representation according to the amount of wealth and number of the inhabitants a proviso that taxation should be in proportion to representation, and, admitting that some objections lay against his proposition, which would be removed by limiting it to direct taxation, since "with regard to indirect taxes on exports and imports, and on consumption, SMITH, CONST.LAW — 10 the rule would be inapplicable," varied his motion by insei'ting the word "direct," where- upon it passed as follows: "Provided, al- ways, that direct taxation ought to be pro- portioned to representation." 5 Elliot, Deb. 802. ■ Amendments were proposed by Mr. Ells- worth and Mr. Wilson to the effect that the rule of contribution by direct taxation should be accoi'ding to the number of white inhabit- ants and three-fifths of every other descrip- tion, and that, in order to ascertain the altera- tions in the direct taxation which might be required from time to time, a census should be taken. The word "wealth" was struck out of the clause on motion of Mr. Randolph; and the whole proposition, proportionate representation to direct taxation, and both to the white and three-fifths of the colored in- habitants, and requiring a census, was adopted. In the course of the debates, and after the motion of Mr. Ellsworth that the first census be taken in three years after the meeting of congress had been adopted, Mr. Madison records: "Mr. King asked what was the pre- cise meaning of 'direct taxation.' No one an- swered." But Mr. Gerry immediately moved to amend by the insertion of the clause that "from the first meeting of the legislature of the United States until a census shall be taken, all moneys for supplying the public treasmy by direct taxation shall be raised from the several states according to the num- ber of their representatives respectively in the first branch." This left for the time the matter of collection to the states. Mr. Lang- don objected that this would bear unreason- ably hard against New Hampshire, and Mr. Martin said that dii-ect taxation should not be used but in cases of absolute necessity, and then the states would be the best judges of the mode. 5 Elliot, Deb. 451, 453. Thus was accomplished one of the great compromises of the constitution, resting on the doctrine that the right of representation ought to be conceded to every community on which a tax is to be imposed, but crystallizing it in such form as to allay jealousies in respect of the futui'e balance of power; to reconcile conflicting views in respect of the enumera- tion of slaves; and to remove the objection that, in adjusting a system of representa- tion between the states, regard should be had to their relative wealth, since those who were to be most heavily taxed ought to have a proportionate influence in the government. The compromise, in embracing the power of direct taxation, consisted not simply in in- cluding part of the slaves in the enumera- tion of population, but in providing that, as between state and state, such taxation should be proportioned to representation. The es- tablishmc" t of the same rule for the appor- tionment of taxes as for regulating the pro- portion of representatives, observed Mr. Madi- son in No. 54 of the Federalist, was by no means founded on the same principle, for, 146 Till-: POWEIt OF TAXATION. as to the foiiner, it had reference to the pro- portion of wealth, and, altliough in respect of that it was in ordinary eases a very luitit measnre. it "had too recently obt^iined the general sanction of America not to have fonnd a ready preference with the conven- tion." while the opposite interests of the states, balancing each other, would produce impartiality in enumeration. By prescribing this rule. Hamilton wrote (Federalist. No. ;«>) that the door was shut "to partiality or oppression," and "the abuse of this power of taxation to have been provided against with guarded circumsi)ection"; and obviously the operation of direct taxation on every state tended to pi'event resort to that mode of sup- ply except under pressure of necessity, and to promote prudence and economy in expendi- ture. We repeat that the right of the federal government to dii-ectly assess and collect its own taxes, at lea.st until after requisitions up- on the states had been made and failed, was one of the chief points of conflict; and Mas- SJichusetts, in ratifying, recommended the adoption of an amendment in these words: "That congress do not lay direct taxes but when the moneys arising from the impost and excise are insufticient for the public exi- gencies, nor then until congress shall have iii'st made a requisition upon the states to as- sess, levy, and pay their respective propor- tions of such requisition, agreealdy to the census tixed in the said constitution, in such way and manner as the legislatures of the states shall think best." 1 Elliot, Deb. 322. And in this South Carolina, New Hamp- shire, and Uhode Island concuri-ed. Id. 32.j, 32(;. 32St. :!:?(;. I^uther Martin, in his well known commtmi- catiou to the legislature of Maryland in Janu- ary, ITSS, expressed his views thus: "By the jK)wei- to lay and collect taxes they may pro- ceed to direct taxation on every individual, either by a capitation tax on their heads. or an assessment on their property. * * * Many of the members, and myself in the number, thought that the states were much better judges of the circtimstances of their citizens, and what sum of money could be collected from them by direct taxation, and of the manner in which it could be raised with the greatest ease and conveni- ence to their citizens, than the general gov- ernment could be; and that the general gov- ernment ought not to have the power of laying direct taxes in any case but in that of the delinquency of a state." 1 Elliot, Deb. 344. 3(>8. o(J!t. Ellsworth and Sherman wrote the governor of Connecticut, September 2ti. 1787. that it was probable "that the principal branch of revenue will be duties on imports. What may be necessary to be raised by direct taxation is to be apportioned on the several states, according to the number of their in- habitants; and although congress may raise the mouej' by their own authoritj', if neces- sary, yet that authority need not be exer- cised if each state will furnish its quota." 1 Elliot, Deb. 492. And Ellsworth, in the Connecticut conven- tion, in discussing the power of congress to lay taxes, pointed out that all sources of revenue, excepting the impost, still lay open to the .states, and insisted that it was "nec- essary that the i)ower of the general legis- lature should extend to all the objects of taxa- tion, that government should be able to com- mand all the resotirces of the country, be- cause no man can tell what our exigencies may be. Wars have now become rather wars of the purse tlian of the sword. Government must therefore be able to command the whole power of the ptirse. * * * Direct taxation can go but little way towards raising a reve- nue. To raise money in this way, people must be provident; they must constantly be l-aying up money to answer the demands of the colliH-tor. But you cannot nutke i)enple thus provident. If yoti would do anything to the i)urpose, you must come in when they are .spending, and take a part with them. * * * All nations have seen the necessity and i)roi)riety of raising a revenue by indi- rect taxation, by duties upon articles of consumption. * * * in England the whole public revenue is about twelve millions ster- ling per annum. The land tax amounts to about two millions; the window and some other taxes, to about two millions more. The other eight millions are raised upon articles of consumption. * * * This constitution defines the extent of the powers of the gen- eral government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the constitution does not authorize, it is void; and the judi- cial power, the national judges, who. to se- cure their impartiality, are to be made in- dependent, will declare it to be void." 2 Elliot, Deb. 191, 102, 190. In the convention of Massachusetts by which the constitution was ratified, the sec- ond section of article 1 being under consid- eration, Mr. King said: "It is a principle of this constitution that representation and tax- ation should go hand in hand. * * * By this rule are representation and taxation to be apportioned. And it was adopted, because it was the language of all America. Accord- ing to the Confederation, ratified in 1781, the sums for the general welfare and de- fense should be apportioned according to the surveyed lands, and improvements thereon, in the several states; but that it hath never been in the power of congress to follow that rule, the returns from the several states be- ing so very imperfect." 2 Elliot, Deb. 36. Theophilus Parsons observed: "Congress have only a concurrent right with each state in laying direct taxes, not an exclusive right; and the right of each state to direct ta"-;!- tion is equallj extensivo and perfect as the LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 147 right of congress." 2 Elliot, Deb. 93. And John Adams, Dawes, Sumner, King, and Sedgwick all agreed that a direct tax would be the last source of revenue resorted to by congress. In the New York convention. Chancellor Livingston pointed out that, when the im- posts diminished and the expenses of the government increased, "they must have re- course to direct taxes; that is. taxes on land and specific duties." 2 Elliot, Deb. 341. And Mr. Jay, in reference to an amendment that direct taxes should not be imposed until requisition had been made and proved fruit- less, argued that the amendment would in- volve great ditticulties, and that it ought to be considered that direct taxes were of two kinds. — general and specific. Id. 380. 381. In Virginia, Mr. John Marshall said: "The objects of direct taxes are well understood. They are but few. What are they? Lauds, slaves, stock of all kinds, and a few other ai'ticles of domestic property. * * * They will have the benefit of the knowledge and experience of the state legislature. They will see in wnat manner the legislature of Vir- ginia collects its taxes. * * * Cannot con- gress regulate the taxes so as to be equal on all parts of the community? Where is tiie absurdity of having thirteen revenues? Will they clash with or injure each other? If not, why cannot congress make thirteen distinct laws, and impose the taxes on the general objects of taxation in each state, so as that all persons of the society shall pay equally, as they ought? 3 Elliot, Deb. 229, 23.J. At that time, in Virginia, lands were taxed, and specific taxes assessed on certain specified objects. These objects were stated by Sec. Wolcott to be taxes on lauds, houses in towns, slaves, stud horses, jack- asses, other horses and mules, billiard tables, four-wheeled riding carriages, phaetons, stage wagous, and riding carriages with two wheels; and it was undoubtedly to these objects that the futvu-e chief justice referred. Mr. Randolph said: "Biit in this new con- stitution there is a more just and equitable rule fixed, — a limitation beyond which they cannot go. Representatives and taxes go hand in hand. According to the one will the other be regulated. The number of represent- atives is determined by the number of in- habitants. They have nothing to do but to lay taxes accordingly." 3 Elliot, Deb. 121. Mr. George Nicholas said: "The proportion of taxes is fixed by the number of inhabit- ants, and not regulated by the extent of ter- ritory or fertility of soil. * * * Each state Avill know, from its population, its proportion of any general tax. As it was justly observ- ed by the gentleman over the way [Mr. Ran- dolph], they cannot possibly exceed that pro- portion. They are limited and restrained ex- pressly to it. The state legislatures have no check of this kind. Their power is uncon- trolled." 3 Elliot, Deb. 243, 244. Mr. Madison remarked that "they will be limited to fix the proportion of each state, and they must raise it in the most convenient and satisfactory manner to the public." 3 Elliot, Deb. 255. From these references — and the.v might be extended indefinitely— it is clear that the rule to govern each of the great classes into which taxes were divided was prescribed in view of the comiuonly accepted distinction between them and of the taxes directly levied under the 'systems of the states; and that the difter- ence between direct and indirect taxation was fully appreciated is supported by the con- gressional debates after the government was organized. In the debates in the house of representa- tives preceding the passage of the act'of con- gress to lay "duties upon caiTiages for the conveyance of persons," approved June 5, 1794 (1 Stat. 373. c. 45). Mr. Sedgwick said that "a capitation tax, and taxes on land and on property and income generally, were direct charges, as well in the immediate as ultimate sources of contribution. He had considered those, and those only, as direct taxes in their operation and effects. On the other hand, a tax imposed on a specific article of personal property, and particularly of objects of lux- ury, as in the case under consideration, he had never supposed had been considered a direct tax, within the meaning of the constitu- tion." Mr. Dexter observed that his colleague "had stated the meaning of direct taxes to be a capitation tax, or a general tax on all the taxable property of the citizens; and that a geutieuiitn from Virginia [Mr. Nicholas] thought the meaning was that all taxes are direct which are paid by the citizen without being recompensed by the consumer; but that, where the tax was only advanced and repaid by the consumer, the tax was indirect. He thought that both opinions were just, and not inconsistent, though tiie gentlemen had differed about them. He thought that a gen- eral tax on all taxable property was a direct tax, because it was paid without being recompensed by the consumer." Ann. 3d Cong. 644, G46. At a subsequent day of the debate, Mr. Madison objected to the tax on carriages as "an unconstitutional tax"; but Fisher Ames declared that he had satisfied himself that it was not a direct tax. as "the duty falls not on the possession, but on the use." Ann. 730. Mr. Madison wrote to Jefferson on May 11, 1794: "And the tax on carriages succeeded, in spite of the constitution, by a majority of twenty, the advocates for the principle being re-enforced by the adversaries to luxuries." "Some of the motives which they decoyed to their support ought to premonish them of the danger. By breaking down the barriers of the constitution, and giving sanction to the idea of sumptuary regulations, wealtli may find a precarious defense in the shield of jus- tice. If luxury, as such, is to be taxed, the greatest of all luxuries, says Paine, is a great 148 THE POWER OF TAXATION. estate. Even on the present occasion, it has been found prudent to yield to a tax on trans- fers of stock in the funds and in the banks." 2 Mad. Writings, 14. But Albert Gallatin, in his Sketch of the Finances of the United States, published in November, 1796, said: "The most generally- received opinion, however, is tnat. by direct taxes in the constitution, those are meant vv'hich are raised on the capital or revenue of the people; by indirect, such as are raised on their expense. As that opinion is in itself rational, and conformable to the decision which has taken place on the subject of the carriage tax, and as it appears important, for the sake of preventing future controversies, which may be not more fatal to the revenue than to the tranquillity of the Union, that a fixed interpretation should be generally adopt- ed, it will not be improper to corroborate it by quoting the author from whom the idea seems to have been borrowed." He then quotes from Smith's Wealth of Nations, and continues: "The remarkable coincidence of the clause of the constitution with this pas- sage in using the word 'capitation' as a gen- eric expression, including the different species of direct taxes,— an acceptation of the word peculiar, it is believed, to Dr. Smith, — leaves little doubt that the framers of the one had the other in view at the time, and that they, as well as he, by direct taxes, meant those paid directly from the falling immediately on the revenue; and by indirect, those which are paid indirectly out of the revenue by falling immediately upon the expense." 3 Gall. Writings (Adams' Ed.) 74, 75. The act provided in its first section "that there shall be levied, collected, and paid upon all carriages for the conveyance of persons, which shall be kept by or for any person for his or her own use, or to be let out to hire or for the conveyance of passengers, the several duties and rates following"; and then follow- ■ed a fixed yearly rate on every coach, chariot, phaeton, and coachee, every four-wheel and every two-wheel top carriage, and upon every ■other two-wheel carriage varying according to the vehicle. In Hylton v. U. S. (decided in March, 1796) 3 Dall. 171, this court held the act to be con- stitutional, because not laying a direct tax. Chief Justice Ellswortli and Mr. Justice Gush- ing took no part in tne decision, and Mr. Jus- tice Wilson gave no reasons. Mr. Justice Chase said tliat he was inclined to think (but of this he did not "give a judi- cial opinion") that "the direct taxes contem- plated by the constitution are only two, to wit, a capitation or poll tax, simply, without regard to property, profession, or any other circumstance, and a tax on land"; and that he doubted "whether a tax, by a general as- sessment on personal property, within the United States, is included within the term 'direct tax.' " But he thought that "an an- nual tax on carriages for the conveyance of persons may be considered as within the pow- er granted to congress to lay duties. The term 'duty' is the most comprehensive next to the generical term 'tax'; and practically, in Great Britain (wlience we take our general ideas of taxes, duties, imposts, excises, cus- toms, etc.), embraces taxes on stamps, tolls for passage, etc., and is not confined to taxes on importation only. It seems to me that a tax on expense is an indirect tax; and I think an annual tax on a carriage for the convey- ance of persons is of that kind, because a carriage is a consumable commodity, and such annual tax on it is on the expense of the owner." Mr. Justice Paterson said that "the con- stitution declares that a capitation tax is a direct tax; and, both in theory and practice, a tax on land is deemed to be a direct tax. * * * It is not necessary to determine whether a tax on the product of land be a direct or indirect tax. I'erhaps, the im- mediate product of land, in its original and crude state, ought to be considered as the land itself; it makes part of it; or else the pro- vision made against taxing exports would be easily eluded. Land, independently of its produce, is of no value. * * * Whether di- rect taxes, in the sense of the constitution, comprehend any other tax than a capitation tax, and taxes on land, is a questionable point * * * But as it is not before the court, it would be improper to give any decisive opin- ion upon it." And he concluded: "All taxes on expenses or consumption are indirect taxes. A tax on carriages is of this kind, and, of course, is not a direct tax." This conclusion he fortified by reading extracts from Adam Smith on the taxation of consumable commod- ities. Mr. Justice Iredell said: "There is no ne- cessity or propriety in determining what is or is not a direct or indirect tax in all cases. Some difficulties may occur which we do not at present foresee. Perhaps a direct tax, in the sense of the constitution, can mean noth- ing but a tax on something inseparably annex- ed to the soil; something capable of apportion- ment under all such cii'cumstances. A land or a poll tax may be considered of this de- scription. * * * In regard to other articles, there may possibly be considerable doubt. It is sufficient, on the present occasion, for the court to be satisfied that this is not a tlirect tax contemplated by the constitution, in order to affirm the pfesent judgment." It will be perceived that each of the justices, while suggesting doubt wliether anything but a capitation or a land tax was a direct tax within the meaning of the constitution, dis- tinctly avoided expressing an opinion upon that question or laying down a comprehen- sive definition, but confined his opinion to the case before the court. The general line of observation was obvi- ously influenced by Mi-. Hamilton's brief for the government, in which he said: "The fol- lowing are presumed to be the only direct taxes: Capitation or poll taxes, taxes on LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION^". 149 lands and buildings, general assessments, whether on the whole property of individuals, or on their whole real or personal estate. AH else must, of necessity, be considered as indi- rect taxes." 7 Hamilton's Works (Lodge's Ed.) 332. Mr. Hamilton also argued: "If the mean- ing of the word 'excise' is to be sought in a British statute, it will be found to include the duty on carx'iages, which is there considered as an 'excise.' * * * An argument results from this, though not perhaps a conclusive one, yet, where so important a distinction in the constitution is to be realized, it is fair to seek the meaning of terms in the statutory language of that country from which our jurisprudence is derived." 7 Hamilton's Works (Lodge's Ed.) 333. If the question had related to an income tax, the reference would have been fatal, as such taxes have been always classed by the law of Great Britain as direct taxes. The above act was to be enforced for two years, but before it expired was repealed, as was the similar act of May 28, 1796, c. 37, which expired August 31, ISOl (1 Stat. 478, 482). By the act of July 14, 1798, when a war with France was supposed to be impending, a direct tax of two millions of dollars was apportioned to the states respectively, in the manner prescribed, which tax was to be col- lected by officers of the United States, and assessed upon "dwelling houses, lands, and slaves," according to the valuations and enu- merations to be made pursuant to the act of July 9, 1798. entitled "An act to provide for the valuation of lands and dwelling houses and the enumeration of slaves within the United States." 1 Stat. 597, c. 75; Id. 580, c. 70. Under these acts, every dwelling house was assessed according to a prescribed value, and the sum of 50 cents upon every slave enumerated, and the residue of the sum ap- portioned was directed to be assessed upon the lands within each state according to the valuation made pursuant to the prior act, and at such rate per centum as would be suffi- cient to produce said remainder. By the act of August 2, 1813, a direct tax of three mil- lions of dollars was laid and apportioned to the states respectively, and reference had to the prior act of July 22, 1813, which provided that, whenever a direct tax should be laid by the authoi'ity of the United States, the same should be assessed and laid "on the value of all lands, lots of ground with their improve- ments, dwelling houses, and slaves, which several articles subject to taxation shall be enumerated and valued by the respective as- sessors at the x'ate each of them is worth in money." 3 Stat. 53, c. 37; Id. 22, c. 16. The act of January 9, 1815, laid a direct tax of six millions of dollars, which was appor- tioned, assessed, and laid as in the prior act on all lands, lots of grounds with their im- provements, dwelling houses, and slaves. These acts are attributable to the war of 1812. The act of August 6, 1861 (12 Stat. 294, c. 45), imposed a tax of twenty millions of dol- lars, which was apportioned and to be levied wholly on real estate, and also levied taxes on incomes, whether derived from property or profession, ti-ade or vocation (12 Stat. 309). And this was followed by the acts of July 1, 1862 (12 Stat. 473, c. 119) ; March 3, 1863 (12 Stat. 718, 723, c. 74); June 30, 1864 (13 Stat. 281, c. 173); March 3, 1865 (13 Stat. 479, c. 78); March 10, 1866 (14 Stat 4, c. 15); July 13, 1866 (14 Stat. 137, c. 184); March 2, 1867 (14 Stat. 477, c. 169); and July 14, 1870 (16 Stat. 256, c. 255). The differences between the latter acts and that of August 15, 1894, call for no remark in this connection. These acts grew out of the war of the Rebellion, and were, to use the language of Mr. Justice Miller, "part of the system of taxing incomes, earn- ings, and profits adopted during the late war, and abandoned as soon after that war was ended as it could be done safely." Railroad Co. V. Collector, 100 U. S. 595, 598. From the foregoing it is apparent (1) that the distinction between direct and indirect taxation was well understood by the framers of the constitution and those who adopted it; (2) that, under the state systems of taxation, all taxes on real estate or personal property or the rents or income thereof were regard- ed as direct taxes; (3> that the rules of ap- portionment and of uniformity were adopted in view of that distinction and those systems; (4) that whether the tax on carriages was di- rect or indii'ect was disputed, but the tax was sustained as a tax on the use and an ex- cise; (5) that the original expectation was that the power of direct taxation would be exercised only in extraordinary exigencies; and down to August 15, 1894, this expecta- tion has been realized. The act of that date was passed in a time of profound peace, and it we assume that no special exigency called for unusual legislation, and that resort to this mode of taxation is to become an ordinary and usual means of supply, that fact fur- nishes an additional reason for cii'cumspec- tion and care in disposing of the case. We proceed, then, to examine certain deci- sions of this court under the acts of 1861 and following years, in which it is claimed that this court has heretofore adjudicated that taxes like those under consideration are not direct taxes, and subject to the rule of ap- portionment, and that we are bound to ac- cept the rulings thus asserted to have been made as conclusive in the premises. Is this contention well founded as respects the ques- tion now under examination? Doubtless the doctrine of stare decisis is a salutary one, and to be adhered to on all proper occasions, but it only arises in respect of decisions di- rectly upon the points in issue. The language of Chief Justice Marehall in Cohens v. Virginia, 6 Wheat. 264, 399. may profitably again be quoted: "It is a maxim not to be disregarded that general expres- sions in every opinion are to be taken in con- .150 THE POWER OF TAXATION. nection with the case in which those expres- sions are used. If they go beyond the case, they may be respected, but ought not to con- trol the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The (piestion actually before the coiu't is investigated with cai'e. and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigat- ed." So in Carroll v. Carroll's Lessee. IG How. 27.">. 2SG. where a statute of the state of ^Maryland came under review, Mr. .Tustice Curtis said: "If the construction put by the court of a state upon one of its statutes was not a matter in .iudgment. if it might have been decided either way without affecting any right brought into question, then, ac- cording to the principles of the common law. an opinion on such a question is not a deci- sion. To make it so, there must have been an application of the judicial mind to the precise question necessary to be determined to fix the rights of the parties, and decide to whom the property in contestation belongs. And therefore this court, and other courts or- ganized under the common law, has never held itself bound by any part of an opinion, in any case, which was not needful to the as- certainment of the right or title in question between the parties." .\or is the language of Mr. Chief .lustice Taney inapposite, as expressed in The Gen- esee ("liief. 12 How. 443. wherein it was held that the lakes, and navigable waters con- necting them, are within the scope of admi- ralty and maritime jurisdiction as known and understood in the United States when the constitution was adopted, and the pre- ceding case of The Thomas .Tefferson, 10 Wheat. 42S, was overruled. The chief jus- tice said: "It was under the influence of these precedents and this usage that the case of The Thomas .Tefferson. 10 Wheat. 428, was decided in this court, and the jiu'isdic- tion of the courts of admiralty of the United States declared to be limited to the ebb and flow of the tide. The Orleans v. Phoebus, 11 Pet. 175, afterwards followed this case, merely as a point decided. It is the deci- sion in the case of The Thomas .lefferson which mainly embarrasses the court in the present inquiry. We are sensible of the great weight to which it is entitled. But at the same time we are convinced that if we follow it we follow an erroneous decision into which the court fell, when the great impor- tance of the question as it now presents it- self could not be foreseen, and the subject did not therefore receive that deliberate con- sideration which at this time would have been given to it by the ennneut men who presided here when that case was decided. For the decision was made in 182r», when the commerce on the rivers of the West and on the Lakes was in its infancy, and of little importance, and but little regarded, com- pared with that of the present day. More- over, the nature of the questions concerning the extent of the admiralty jurisdiction, which have arisen iu this court, were not cal- culated to call its attention particularly to the one we are now considering." Manifestly, as this court is clothed with the power and intrusted with the duty to main- tain the fundamental law of the constitution, the discharge of that duty requires it not to extend any decision upon a constitutional question if it is convinced that error in prin- ciple might supervene. Let us examine the cases referred to in the light of these observations. In Insurance Co. v. Soule, 7 Wall. 433, the validity of a tax which was described as "upon the business of an insurance compa- ny," was sustained on the ground that it was "a duty or excise," and came within the de- cision in Hylton's Case. The arguments for the insurance company were elaborate, and took a wide range, but the decision rested on naiTow ground, and turned on the distincti(m between an excise duty and a tax strictly so termed, regarding the former a charge for a privilege, or on the transaction of business, without any necessarj- reference to the amount of property belonging to those on whom the charge might fall, although it might be increased or diminished by the ex- tent to which the privilege was exercised or the business done. This was in accordance with Society v. Coite, ('» Wall. 594, Provident Inst. V. ]Massachusetts, Id. 611, and Hamilton Co. V. Massachusetts, Id. 032, in which cast's there was a difference of opinion on the ques- tion whether the tax under consideration was a tax on the pro])erty, and not upon the fran- chise or privilege. And see Van Allen v. Assessoi-s, 3 Wall. 573; Home Ins. Co. v. New York, 1.34 U. S. 594, 10 Sup. Ct. 593; Pull- man's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 11 Sup. Ct. 870. In Bank v. Fenno, 8 Wall. .533, a tax was laid on the circulation of state banks or na- tional banks paying out the notes of individ- uals or state banks, and it was held that it might well be classed under the head of du- ties, and as falling within the same category as Soule's Case, 7 Wall. 433. It was declared to be of the same nature as excise taxation on freight receipts, bills of lading, and pas- senger tickets issued by a railroad company. Referring to the discussions in the convention which framed the constitution, Mr. Chief .lus- tice Chase ob.served that what was .said there "doubtless shows uncertainty as to the true meaning of the term 'direct tax.' but it indi- cates also an understanding that direct taxes were such as may be levied by capitation and on lands and appurtenances, or per- haps by valuation and assessment of person- al property upon general lists; for these were the subjects from which the states at that time usually raised their principal supplies." LIMIT ATIOXS IMPOSED BY FEDERAL CONSTITUTIOX. 151 And in respect of the opinions in Hylton's Case the chief justice said: "It may further be taken as established upon the testimony of Patersou that the words 'direct taxes,' as used in the constitution, comprehended only capitation taxes and taxes on land, and per- Imps taxes on personal property by general valuation and assessment of the various de- scriptions possessed within the several states." In National Bank v. U. S., 101 U. S. 1, in- volving the con.stitutionality of section 3413 of the Revised Statutes, enacting that "ev- ery national banking association, state bank or banker, or association, shall pay a tax of ten per centum on the amount of notes of iiny town, city, or municipal corporation, paid out by them," Bank v. Fermo was cited with approval to the point that congress, having undertaken to provide a currency for the whole country, might, to secure the benefit of it to the people, restrain, by suitable enactments, the circulation as money of any notes not issued under its authority; and Mr. Chief Justice Waite, speaking for the court, said, "The tax thus laid is not on the obligation, but on its use in a particular way." Scholey v. Rew, 23 Wall. 331, was the case of a succession tax, which the court held to be "plainly an excise tax or duty" "upon the devolution of the estate, or the right to be- come beneficially entitled to the same or the income thereof iu possession or expectancy." It was like the succession tax or a state, held constitutional in Mager v. Grima, 8 IIow. 490; and the distinction between the power of a state and the power of the Unit- ed States to regulate the succession of prop- erty was not referred to, and does not ap- pear to have been in the mind of the court. The opinion stated that the act of parliament from which the particular provision under consideration was borrowed had received substantially the same construction, and cases under that act hold thJit a succession duty is not a tax upon income or upon prop- erty, but on the actual benefit derived by the individual, determined as prescribed. In i-e Elwes. 3 Hurl. & N. 719; Attorney General V. Earl of Sefton, 2 Hurl. & C. 362, 3 Hurl. & C. 1023, and 11 H. L. Cas. 257. In Railroad Co. v. Collector. 100 U. S. 595, the validity of a tax collected of a corpora- tion upan the interest paid by it upon its bonds was held to be "essentially an excise on the business of the class of corporations men- tioned in the statute." And Mr. Justice Mil- ler, in delivering the opinion, said: "As the sum involved in this suit is small, and the law under which the tax iu question was col- lected has long since been repealed, the case is of little consequence as regards any prin- ciple involved in it as a rule of future ac- tion." All these cases are distinguishable from that in hand, and this brings us to consider that of Springer v. U. S., 102 u'. S. 58G, chief- ly relied on and urged upon us as decisive. That was an action of ejectment, brought on a tax deed issued to the United States on sale of defendant's real estate for income taxes. The defendant contended that the deed was void, because the tax was a direct tax, not levied in accordance with the con- stitution. Unless the tax were wholly in- valid, the defense failed. The statement of the case in the report shows that Springer returned a certain amount as his net income for the particular year, but does not give the details of what his income, gains, and' profits consisted in. The original record discloses that the in- come was not derived in any degree from real estate, but was in part professional as at- torney at law, and the rest interest ou United States bonds. It would seem probable that the court did not feel called upon to advert to the distinction between the latter and the former source of income, as the validity of the tax as to either would sustain the action. The opinion thus concludes: "Our conclu- sions are that direct taxes, within the mean- ing of the constitution, are only capitation taxes, as expressed in that instrument, and taxes on real estate; and that the tax of which the plaintiff in error complains is vi'ithin the category of an excise or duty." While this language is broad enough to cover the interest as well as the professional earnings, the case would have been more sig- nificant as a precedent if the distinction had been brought out in the report and comment- ed on in arriving at judgment, for a tax on professional receipts might be treated as an excise or duty, and therefore indirect, when a tax on the income of personalty might be held to be direct. Be this as it may, it is conceded in all these cases, from that of Hylton to that of Springer, that taxes on land are direct taxes, and in none of them is it determined that taxes on rents or income derived from laud are not taxes on land. We admit that it may not unreasonably be said that logically, if taxes on the rents, is- sues, and profits of real estate are equiva- lent to taxes on real estate, and are there- fore direct taxes, taxes on the income of per- sonal property as such are equivalent to tax- es on such property, and therefore direct taxes. But we are considering the rule stare decisis, and we must decline to hold our- selves bound to extend the scope of deci- sions,— none of which discussed the question whether a tax on the income froiu personalty is equivalent to a tax on that personalty, but all of which held real estate liable to direct taxation only,— so as to sustain a tax on the income of realty on the ground of being an excise or duty. As no capitation or other direct tax was to be laid otherwise than in proportion to the popu- lation, some other direct tax than a capitation tax (and. it might well enough be argued, some other tax of the same kind as a capita- 152 THE POWEl? OF TAXATIOX. tion tax) must be referred to, and it has al- ways been considered that a tax upon real estate eo nomine, or upon its owners in re- spect thereof, is a direct tax, within the meaning of the constitution. But is there any distinction between the real estate itself or its owners in respect of it and the rents or income of the real estate coming to the owners as the natural and ordinary incident of their ownership? If the constitution had provided that con- gress should not levy any tax upon the real estate of any citizen of any state, could it be contended that congress could put an an- nual tax for five or any other number of years upon the rent or mcome of the real es- tate? And if, as the constitution now reads, no unapportioned tax can be imposed upon real estate, can congress without apportion- ment' nevertheless impose taxes upon such real estate under the guise of an annual tax upon its rents or income? As. according to the feudal law, the whole beneficial interest in the land consisted in the right to take the rents and profits, the general rule has always been, in the lan- guage of Coke, that "if a man seised of land in fee by his deed granteth to another the profits of those lands, to have and to hold to him and his heirs, and maketh livery secun- dum formam chartae, the whole land itself doth pass. For what is the land but the profits thereof?" Co. Lift. 45. And that a devise of the rents and profits or c^ the in- come of lands passes the land itself both at law and in equity. 1 .Jarm. Wills (Gth Ed.) *798, and cases cited. The requirement of the constitution is that no direct tax shall be laid otherwise than by apportionment. The prohibition is not against direct taxes on land, from which the implication is sought to be drawn that in- direct taxes on land would be constitutional, but it is against all direct taxes; and it is admitted that a tax on real estate is a direct tax. Unless, therefore, a tax upon rents or income issuing out of lands is in- trinsically so different from a tax on the land itself that it belongs to a wholly differ- ent class of taxes, such taxes must be re- garded as falling within the same category as a tax on real estate eo nomine. The name of the tax is unimportant. The real ques- tion is, is there any basis upon which to rest the contention that real estate belongs to one of the two great classes of taxes, and the rent or income which is the incident of its ownership belongs to the other? We are unable to perceive any ground for the alleged distinction. An annual tax upon the annual value or annual user of real estate appears to us the same in substance as an annual tax on the real estate, Avhich would be paid out of the rent or income. This law taxes the income received from land and the growth or produce of the land. Mr. Justice Paterson observed in Hylton's Case, "land, independently of its produce, is of no value," and certainly had no thought that direct taxes were confined to unproductive land. If it be true that by varying the form the substance may be changed, it is not easy to see that anything would remain of the limita- tions of the constitution, or of the rule of taxation and representation, so carefully rec- ognized and guarded in favor of the citi- zens of each state. But constitutional pro- visions cannot be thus evaded. It is the sub- stance, and not the form, which controls, as has indeed been establishetl by repeated de- cisions of this court. Thus in Brown v. :Maryland. 12 Wheat. 419. 444. it was held that the tax on the occupation of an importer was the same as a tax on imports, and there- fore void. And Chief .Justice Marshall said: "It is impossible to conceal from ourselves that this is varying the form without vary- ing the substance. It is treating a prohibi- tion which is general as if it were confined to a particular mode of doing the forbidden thing. All must i^erceive that attax on the sale of an article imported only for sale is a tax on the article itself." In \Veston v. City Council. 2 Pet. 449, it was held that a tax on the income of United States securities was a tax on the securities themselves, and equally inadmissible. The ordinance of the city of Charleston involved in that ca.se was exceedingly obscure; but the opinions of Mr. Justice Thompson and Mr. Justice Johnson, who dissented, make it clear that the levy was upon the interest of the bonds and not upon the bonds, and they held that it was an income tax, and as such sustainable: but the majority of the court. Chief Justice Marehall delivering the opinion, overruled that contention. So in Dobbins v. Commissioners, IG Pet. 43."). it was decided that the income from an official position could not be taxed if the office itself was exempt. In Almy v. California, 24 How. 1G9, it was held that a duty on a bill of lading was the same thing as a duty on the article which it represented; in Railroad Co. v. Jackson, 7 Wall. 202. that a tax upon the interest payable on bonds was a tax not upon the debtor, but upon the security; and in Cook V. Pennsylvania. 97 U. S. 5GG. that a tax upon the amount of sales of goods made by an auctioneer was a tax upon the goods sold. In Philadelphia & S. S. S. Co. v. Penn- sylvania, 122 U. S. 32G, 7 Sup. Ct. 1118, and Leloup V. Port of Mobile, 127 U. S. G40, 8 Sup. Ct. 1380, it was held that a tax on in- come received from interstate commerce was a tax upon the commerce itself, and there- fore unauthorized. And so, although it is thoroughly settled that where by way of duties laid on the tran.sportation of the sub- jects of interstate commerce, and on the re- ceipts derived tlierefrom, or on the occupa- tion or business of carrying it on. a tax is lev- ied by a state on interstate commerce, such taxation anu)unts to a regulation of such commerce, and cannot be sustained, yet the LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 153 property in a state belong-ing to a corpora- tion, wliether foreign or domestic, engaged in foreign or domestic commerce, may be taxed; and wlien the tax is substantially a mere tax on property, and not one imposed on the privilege of doing interstate com- merce, the exaction may be sustained. "The substance, and not the shadow, determines the validity of the exercise of the power." Tele- graph Co. V. Adams, 155 U. S. 6SS, 15 Sup. Ct. 2GS. Nothing can be clearer than that what the constitution intended to guard against was the exercise by the general government of the power of directly taxing persons and prop- erty within any state through a majority made up from the other states. It is true that the effect of requiring direct taxes to be apportioned among the states in proportion to their population is necessarily that the amount of taxes on the individual taxpayer in a state having the taxable subject-matter to a larger extent in proportion to its popu- lation than another state has, would be less than in such other state; but this inequality must be held to have been contemplated, and was manifestly designed to opei*ate to re- strain the exercise of the power of direct taxation to extraordinary emergencies, and to prevent an attack upon accumulated prop- erty by mere force of numbers. It is not doubted that property owners ought to contribute in just measure to the expenses of the government. As to the states and their municipalities, this is reached large- ly through the imposition of direct taxes. As to the federal government, it is attained in part through excises and indirect taxes upon luxuries and consumption genei"ally, to which direct taxation may be added to the extent the I'ule of apportionment allows. And through one mode or the other the en- tire wealth of the country, real and personal, may be made, as it should be, to contribute to the common defense and general welfare. But the acceptance of the rule of apportion- ment was one of the compromises which made the adoption of the constitution possi- ble, and secured the creation of that dual form of government, so elastic and so strong, which has thus far survived in unabated vigor. If, by calling a tax indirect when it is essentially direct, the rule of protection could be frittered away, one of the great landmarks defining the boundary between the nation and the states of which it is com- posed, would have disappeared, and with it one of the bulwarks of private rights and private property. We are of opinion that the law in ques- tion, so far as it levies a tax on the rents or income of real estate, is in violation of the constitution, and is invalid. Another question is directly presented by the record as to the validity of the tax lev- ied by the act upon the income derived from municipal bonds. The averment in the bill is that the defendant company owns two millions of the municipal bonds of the city of New York, from which it derives an an- nual income of $60,000, and that the directors of the company intend to return and pay the taxes on the income so derived. The co'nstitution contemplates the independ- ent exercise by the nation and the state,. severally, of their constitutional powers. As the states cannot tax the powers, the operations, or the property of the United States, nor the means which they employ to carry their powers into execution, so it has been held that the United States have no power under the constitution to tax either the instrumentalities or the property of a state. A municipal corporation is the representa- tive of the state, and one of the instiiimentali- ties of the state government. It was long ago determined that the property and reve- nues of municipal coi-porations are not sub- jects of federal taxation. Collector v. Day,. 11 Wall. 115; U. S. v. Railroad Co., 17 Wall. 322, 332. In Collector v. Day it was ad- judged that congress had no power, even by an act taxing all incomes, to levy a tax upon the salaries of judicial officers of a state, for reasons similar to those on which it had been held in Dobbins v. Commissioners, 16 Pet. 435, that a state could not tax the sal- aries of officers of the United States. Mr. Justice Nelson, in delivering judgment, said: "The general government and the states, al- though both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. The former, in its appropriate sphere, is supreme; but the states, within the limits of their pow- ers not granted, or, in the language of the tenth amendment, 'reserved,' are as inde- pendent of the general government as that government within its sphere is independent of the states." Tliia is quoted in Van Brocklin v. Tennes- see, 1*7 U. S. 151, 178, 6 Sup. Ct. 670, and the opinion continues: "Applying the same prin- ciples, this court in U. S. v. Baltimore & O. II. Co., 17 Wall. 322, held that a municipal corpoi-ation within a state could not be taxed by the United States on the dividends or in- terest of stock or bonds held by it in a rail- road or canal company, because the munici- pal corporation was a representative of the state, created by the state to exercise a limit- ed portion of its powers of government, and therefore its revenues, like those of the state itself, were not taxable by the United States. The revenues thus adjudged to be exempt from federal taxation were not themselves appropriated to any specific public use, nor derived from property held by the state or by the municipal corporation for any specific public use, but were part of the general in- come of that corporation, held for the public use in no other sense than all property and in- come belonging to it in its municipal char- acter must be so held. The reasons for ex- empting all the property and income of a state, or of a municipal corporation, which is irA THE POWER OF TAXATION. a political division of the state, from federal taxation, equally require the exemption of all the property and income of the national government from state taxation." In Mercantile Bank v. City of New York, 121 U. S. 138, 102, 7 Sup. Ct. S2G. this court said: "Bonds issued by the state of NeAv York, or under its authority, by its public municipal bodies, are means for carrying; on the work of the government, and are not taxable, even by the United States, and it is not a part of the policy of the government which issues them to subject them to taxa- tion for its own purposes." The (piestion in Bonaparte v. Tax Court, 104 U. S. 592, was whether the rvjjistered public debt of one state, exempt from taxa- tion by that state, or actually taxed there, was taxable by another state, when owned by a citizen of the latter, and it was held that there was no provision of the constitution of the United States which prohibited such taxa- tion. The states had not covenanted that this could not be done, whereas, under the fun- damental law, as to the power to borrow money, neither the UnHed States, on the one hand, nor the states on the other, can in- terfere with that power as possessed bj' each, and an essential element of the sovereignty of each. The law imder consideration provides "that nothing herein contained shall apply to states, counties or municipalities." It is contended that, although the property or revenues of the states or their instrumentalities cannot be taxed, nevertheless the income derived frofji state, county, and mimicipal securities can be taxed. But we think the same want of power to tax the proj.erty or revenues of the states or their instrumentalities exists in re- lation to a tax on the income from their se- curities, and for the same reason; and that reason is given by Chief Justice Marshall, in Weston V. City Council, 2 Pet. 441), 4(JS. where he said: "The right to tax the contra^r: to any extent, when made, must operate upon the power to borrow before it is exercised, and have a sensible influence on the contract. The extent of this influence depends on the will of a distinct government. To any extent, however inconsiderable, it is a burthen on the oi>erations of government. It may be carried to an extent which shall arrest them entirely. * * * The tiix on government stock is thought by this court to be a tax on the contract, a tax on the. power to boiTow money on the credit of the T'nited States, and consequently to be repugnant to the cons*^'.- tution." Applying this language to these municipal securities, it is obvious that taxa- tion on the interest therefrom would operate on the power to borrow before it is exercised, and would have a sensible influence on the contract, and that the tax in question is a tax on the power of the states and their in- strumentalities to borrow money, and con- sequently repugnant to the constitution. Upon each of the other questions argued at the bar, to wit: (1) Whether the void pro- visions as to rents and income from real es- tate invalidated the whole act; (2) whether, as to the income from i)ersonal property, as such, the act is unconstitutional, as laying di- rect taxes; {3) whether any part of the tax. if not considered as a direct tax, is invalid for want of uniformity on either of the grouLids suggested,— the justices who heard the argument are equally divided, and there- fore no opinion is expressed. The result is that the decree of the circuit court is reversed and the cause remanded, with directions to enter a decree in favor of the complainant in respect only of the volun- taiy payment of the tax on the rents and in- come of the real estate of the defendant com- pany, and of that which it holds in trust, and on the income from the municipal bonds owned or so held by it. Mr. .Justice WHITE (dissenting). My brief judicial experience has convinced me that the custom of tiling long dissenting opinions is one "more honored in the breach than in the observance." The only pmiiose which an elaborate dissent can accomplish, if any. is to weaken the effect of the opinion of the ma- jority, and thus engender want of confidence in the conclusions of courts of bist resort. This consideration aa ould impel me to con- tent myself with simply recording my dis- sent in the present case, were it not for the fact that I consider that the result of the opinion of the court just announced is to over- thi'ow a long and consistent line of decisions, and to deny to the legislative department of the government the possession of a power con- ceded to it by universal consensus for 100 years, and which has been recognized by re- peated adjudications of this court. The issues presentc^l are as follows: Complainant, as a stockholdei" in a cor- poration, avers that the latter will voluntarily pay the income tax. levied under the recent act of congress; that such tax is unconsti- tutional; and that its voluntary i)ayment will seriously affect his interest by defeating his right to test the validity of the exaction, and also lead to a multiplicity of suits against the corporation. The prayer of the bill is as fol- lows: First, that it may be decreed that the provisions known as "The Income Tax Law," incorporated in the act of congress passed August l.'i. 1SU4, are unconstitutional, null, and void; second, that the defendant be re- strained from voluntarily complying with the provisions of that act by making its re- turns and statements, and paying the tax. The bill, therefore, presents two substantial questions for decision: The right of the plain- tiff to relief in tlie form in which he claims it, and his right to relief on the merits. The decisions of this court hold that the collection of a tax levied by the government of the United States will not be restrained by its courts. Cheatham v. U. S., 92 U. S. 85; Snyder v. Maiks, 109 U. S. 189, 3 Sup. Ct. 157. See, al.so, Elliott v. Swartwout, 10 LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 155 Pot. 137; City of Philadelphia v. Collector, 5 Wall. 720; Hornthal v. Collector, 9 Wall. 5G0. The same authorities have established the rule that the proper course, in a case of illegal taxation, is to pay the tax un- der protest or with notice of suit, and then bring an action against the officer who col- lected it. The statute law of the United States, in express terms, gives a party who has paid a tax under protest the right to sue for its recovery. Rev. St. § 322(5. The act of 18(57 forbids the maintenance of any suit|('for the purpose of restraining the assessment or collection of any tax." The provisions of this act are now found in Rev. St. § 3224. The complainant is seeking to do the very thing which, according to the statute and the decisions above referred to, may not be done. If the corporator cannot have the collection of the tax enjoined, it seems obvious that he cannot have the corporation enjoined from paying it, and thus do by indirection what he cannot do directly. It is said that such relief as is here sought has been frequently allowed. The cases re- lied on are Dodge v. Woolsey. 18 How. 331, and Hawes v. Oakland, 104 U. S. 4.50. Nei- ther of these authorities, I submit, is in point. In Dodge v. Woolsey, the main question at issue was the validity of a state tax, and that case did not involve the act of congress to which I have referred. Hawes v. Oak- land was a controversy between a stockholder and a corporation, and had no reference what- ever to taxation. The complainant's attempt to establish a right to relief upon the ground that this is not a suit to enjoin the tax, but one to enjoin the corporation from paying it. involves the fal- lacy already pointed out, — that is. that a party can exercise a right indirectly which he can- not assert directly,— that he can compel his agent, through process of this court, to violate an act of congress. The rule which forbids the granting of an injunction to restrain the collection of a tax is founded on broad reasons of public policy, and should not be ignored. In Cheatham v. U. S.. supra, which involved the validity of an income tax levied under an act of con- gress prior to the one here in issue.this court, through Mr. .lustice Miller, said: "If there existed in the courts, state or na- tional, any general power of impeding or controlling the collection of taxes, or reliev- ing the hardship incident to taxation, the very existence of the government might be i/iaced in the power of a Hostile judiciary. Dows V. City of Chicago. 11 Wall. 108. While a free course of remonstrance and appeal is allowed within the departments before the money is finally exacted, the general govern- ment has wisely made the payment of the tax claimed, whether of customs or of internal revenue, a condition precedent to a resort to the courts by the party against whom the tax is assessed. In the internal revenue branch it has further prescribed that no such suit shall be brought until the remedy by ap- peal has been tried; and, if brought after this, it must be within six months after the de- cision on the appeal. We regard this as a condition on which alone the government con- sents to litigate the lawfulness of the original tax. It is not a hard condition. Few gov- ernments have conceded such a right on any condition. If the compliance with this con- dition requires the party aggrieved to pay the money, he must do it."' Again, in State Railroad Tax Cases, 92 U. S. 57.5, the court said : "That there might be no misunderstanding of the universality of this principle, it was expressly enacted, in 1867, that 'no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.' Rev. St. § 3224. And, though this was intended to apply alone to taxes levied by the United States, it shows the sense of congress of the evils to be feared if courts of justice could, in any case, interfere with the process of collecting the taxes on which the government depends for its continued ex- istence. It is a wise policy. It is foimded in the simple philosophy derived from the ex- perience of ages, that the payment of taxes has to be enforced by summary and stringent means against a reluctant and often adverse sentiment; and, to do this successfully, other instrumentalities and other modes of proce- dure are necessary than those which belong to courts of justice. See Cheatham v. Norvell, decided at this term; Nichols v. U. S., 7 Wall. 122; Dows v. City of Chicago, 11 Wall. 108." The contention that a right to equitable relief arises from the fact that the corporator is without remedy, unless such relief be granted him, is, I think, without foundation. This court has repeatedly said that the ille- i gality of a tax is not ground for the issuance of an injimction against its collection, if there be an adequate remedy at law open to the payer (Dows v. City of Chicago, 11 Wall. 108; Hauuewinkle v. Georgetown, 15 Wall. 547; Board v. McComb, 92 U. S. 531; State Railroad Tax Cases, 92 U. S. .575; Union Pa- cific Ry. Co. V. Cheyenne, 113 U. S. 51G, 5 Sup. Ct. GOl; Milwaukee v. Koeffler, IIG U. S. 219, 6 Sup. Ct. 372; Express Co. v. Seibert, 142 U. S. 339, 12 Sup. Ct. 2.50), as in the case where the state statute, by which the tax is imposed, allows a suit for its recovery after payment under protest (Shelton v. Piatt, 139 U. S. .591, 11 Sup. Ct. (54G; Allen v. Car Co., 139 U. S. (558, 11 Sup. Ct. (582). The decision here is that this court will al- low, on the theoi-y of equitable right, a rem- edy expressly forbidden by the statutes of the United States, though it has denied the existence of such a remedy in the case of a tax levied by a state. Will it be said that, although a stockhold- er cannot have a corporation enjoined from paying a state tax where the state statute 156 THE POWER OF TAXATION. gives him the right to sue for its recovery, yet when the United States not only gives him such right, but, in addition, forbids the issue of an injunction to prevent the pay- ment of federal taxes, the court will allow to the stockholder a remedy against the United States tax which it refuses against the state tax? The assertion that this is only a suit to prevent the voluntary payment of the tax sug- gests that the court may, by an order operat- ing directly upon the defendant cori)oratlon, accomplish a result which the statute mani- festly intended should not be accomplished by suit in any court. A final judgment for- bidding the corporation from paying the tax will have the effect to prevent its collection, for It could not be that the court would per- mit a tax to be collected from a corporation which it had enjoined from paying. I take it to be beyond dispute that the collection of the tax in question cannot be restrained by any proceeding or suit, whatever its form, di- rectly against the officer charged with the duty of collecting such tax. Can the stat- ute be evaded, in a suit between a corpora- tion and a stockholder, by a judgment forbid- ding the former from paying the tax, the col- lection of which cannot be restrained by suit in any court? Suppose, notwithstanding the final judgment just rendered, the collector proceeds to collect from the defendant corpo- ration the taxes which the court declares, in this suit, cannot be legally assessed upon it. If that final judgment is sufficient in law to justify resistance against such collection, then we have a case in which a suit has been maintained to restrain the collection of taxes. If such judgment does not conclude the col- lector, who was not a party to the suit in which it was i-euderecl, then it is of no value to the plaintiff. In other words, no form of expression can conceal the fact that the real object of this suit is to prevent the collection of taxes imposed by congress, notwithstand- ing the express statutory requirement that "no suit for the pui-pose of restraining the assessment or collection of any tax shall be maintained in any court." Either the deci- sion of the constitutional question is nec- essary or it is not. If it is necessary, then the court, by way of granting equitable re- lief, does the very thing which the act of congress forbids. If it is unnecessary, then the court decides the act of congress here as- serted unconstitutional, without being obliged to do so by the requirements of the case be- fore it. This brings me to the consideration of the merits of the cause. The constitutional provisions respecting federal taxation are four in number, and are as follows: "(1) Representatives and direct taxes shall be apportioned among the several states, which may be included within this Union, according to their respective numbers, which sJiall be determined by adding to the whole number of free persons, including those bound to service for a term of years and ex- cluding Indians not taxed, three-tifths of all other pei-sons." Article 1, § 2, cl. 3. The fourteenth amendment modified this provi- sion, so that the whole number of persons in each state should be counted, "Indians not taxetl" excluded. "(2) The congress shall have power to lay and collect taxes, dutie.s. imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, an^ excises shall be uniform throughout the United States." Article 1, § 8, cl. 1. "(3) No capitation or other direct tax sha'l be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken." Article 1. § 9, cl. 4. "(4) No tax or duty shall be laid on artiel?s expoi-tcsolutely irre- sistible.— that the meaning thus affixed to the word "direct" at the very formation of the government was considered as having been as irrevocably determined as if it had been writ- ten in the constitution in express terms. As I have already observed, every authoritative writer who has discussed the constitution from that date down to this has ti-eated this LIMITATIONS IMPOSED BY FEDERAL CONSTITUTIOX. 159 judicial and legislative ascertaiumeut of the meauiug of the word "direct" iu the constitu- tion as jiiving it a constitutional significance, without reference to the theoretical distinction between "direct" and "indirect," naade by some economists prior to the constitution or since. This doctrine has become a part of the hornbook of American constitutional inter- pretation, has been taught as elementary in all the law schools, and has never since then been anywhere autlioritatively questioned. 01 course, the text-books may conflict in some particulars, or indulge in reasoning not al- ways consistent, but as to the effect of the decision in the Hylton Case and the meaning of the word "direct," in the constitution, re- sulting therefrom, they are a unit. I quote briefly from them. Chancellor Kent, in his Commentaries, thus states the principle: "The construction of the powers of congress relative to taxation was brought before the su- preme coiu-t, in 1796, in the case of Hylton v. U. S. By the act of .June 5, 1794, congress laid a duty upon carriages for the conveyance of per- sons, and the question was whether this was a 'direct tax,' within the meaniug of the con- stitution. If it was not a direct tax, it was admitted to be rightly laid, ander that part of the constitution which declares that all du- ties, imposts, and excises shall be uniform throughout the United States; but, if it was a direct tax, it was not constitutionallv laid, for it must then be laid according to the cen- sus, under that part of the constitution which declares that direct taxes shall be apportioned among the several states according to num- bers. The circuit court in Virginia was di- vided in opinion on the question, but on ap- peal to the supreme court it was decided that the tax on caji-riages was not a direct tax, within the letter or meaniug of the constitu- tion, and was therefore constitutionally laid. "The question was deemed of very great importance, and was elaborately argued. It was held that a general power was given to congress to lay and collect taxes of every kind or nature, without any restraint. They had plenary power ever every species of tax- able property, e.xcept exports. But there were two rules prescribed for their goveru- ment, — the rule of uniformity, and the rule of apportionment. Three kinds of taxes, viz. juties, imposts, and excises, were to be laid by the first rule; and capitation and other direct taxes, by the second rule. If there were any other species of taxes, as the court seemed to suppose there might be, that were not direct, and not included within the words 'duties, imposts, or excises," they were to be laid by the rule of uniformity or not, as con- gress should think proper and reasonable. "The constitution contemplated no taxes as direct taxes but such as congress could lay in proportion to the census; and the rule of apportionment could not reasonably apply to a tax; on carriages, nor could the tax on carriages be laid by that rule without very great inequality and injustice. If two states, equal in census, were each to pay 8,000 dollars by a tax on carnages, and in one state there were 100 carriages and in an- other 1,000, the tax on each carriage would be ten times as much in one state as in the other. While A. in the one state, would pay for his carriage eight dollars, B., in the other state, would pay for his carriage eighty dol- lars. In this way it was shown by the court that the notion that a tax on carriages was a 'direct tax,' within the purview of the con- stitution, and to be apportioned according to the census, would lead to the grossest abuse and oppression. This argument was conclusive against the constniction set up, and the tax on carriages was considered as included within the power to lay duties; and the better opinion seemed to be that the diroct taxes contemplated by the constitution were only two, viz. a capitation or poll tax anl a tax on land." Kent. Comm. pp. 25-i-'256. Story, speaking on the same subject, says: "Taxes on lands, houses, and other perma- nent real estate, or on parts or appurtenan- ces thereof, have always been deemed of the same character; that is, direct taxes. It has been seriously doubted if, in the sense of the constitution, any taxes are direct taxes ex- cept those on polls or on lands. Mr. Justice Chase, in Hylton v. U. S., 3 Dall. 171, said: 'I am inclined to think that the direct taxes con- i\4nplated by the constitution are only two, viz., a capitation or poll tax simply, with- out regard to property, profession, or other circumstances, and a tax on land. I doubt whether a tax by a general assessment of personal property within the United States is included within the term "direct tax." ' Mr. Justice Paterson in the same case said; 'It is not necessary to determine whether a tax on the produce of land be a direct or an in- direct tax. Perhaps tlie immediate product of land, in its original and crude state, ought to be considered as a part of the land itself. When the produce is converted into a manu- facture it assumes a new shape, etc. Wheth- er "direct taxes," in the sense of the consti- tution, comprehend any other tax than a capitation tax, or a tax on land, is a ques- tionable point, etc. I never entertained a doubt that the principal — I will not say the only — objects that the framers of the consti- tution contemplated, as falling within the laile of apportionment, were a capitation tax and a tax on land.' And he proceeded to state that the rule of apportionment, both as regards representatives and as regards direct taxes, was adopted to guard the Southern states against undue impositions and oppres- sions in the taxing of slaves. Mr. Justice Ire- dell in the same case said: 'Perhaps a direct tax, in the sense of the constitution, can mean nothing but a tax on something inseparably annexed to the soil; something capable of apportionment under all such circumstances. A land or poll tax may be considered of this description. The latter is to be considered so, 100 tup: power of taxation. particularly under the present constitution, on account of the slaves in the Southern states, who give a ratio in the representation in the proportion of three to tive. Either of these is capable of an apportionment. In regard to other articles, there may possibly be consid- erable doubt.' The reasoning of the Federal- ists seems to lead to the same result." Story, C>)nst. § 952. Cooley, in his work on Constitutional Lim- itations (page 595), thus tersely states the rule: "Direct taxes, when laid by congress, must be apportioned among the several states ac- cording to the representative population. The term 'direct taxes,' as employed in the con- stitution, has a technical meaning, and em- braces capitation and land taxes only." Miller on the Constitution (section 2S2a) thus puts it: "Under the provisions already quoted, the ■c|uestiou came up as to what is a 'direct tax,' and also upon what property it is to be levied, as distinguished from any other tax. In regard to this it is sutfieient to say that it is believed that no other than a capitation tax of so much per bead and a land tax is a 'direct tax,' within the meaning of the constitution of the United States. All other taxes, except imposts, are proi)erly called 'excise taxes.' 'Direct taxes,' within the meaning of the constitution, are only capi- tation taxes, as expressed in that instru- ment, and taxes on real estate." In Pomeroy's Constitutional Law (section 2S1) we read as follows: "It becomes necessary, therefore, to inquire a little more particularly what are direct and what indirect taxes. Few cases on the general question of taxation have arisen and been decided by the supreme court, for the simple reason that, until the past few years, the United States has generally been able to obtain all needful revenue from the single source of duties upon imports. There can be no doubt, however, that all the taxes pro- vided for in the internal revenue acts now in operation are Indirect. "This subject came before the supreme court of the United States in a very early case,— Ilylton v. U. S. In the year 1794, congress laid a tax of ten dollars on all car- riages, and the rate was thus made uniform. The validity of the statute was disputed. It was claimed that the tax was direct, and should have been apiwrtioned among the suites. The court decided that this tax was not direct. The reasons given for the de- cision are unanswerable, and would seem to cover all the provisions of the present inter- nal revenue laws." Hare, in his treatise on American Constitu- tional Law (pages 249, 2.50), is to the hke effect: "Agreeably to section 9 of article 1, para- graph 4, 'no capitation or other direct tax shall be laid except in proportion to the cen sus oi= enumeration hereinbefore directed tC" be taken'; while section 3 of the same ar- ticle requires that representation and direct taxes shall be apportioned among the sev eral states * * * according to their re- spective numbers. 'Direct taxes,' in the sensfl of the constitution, are poll taxes and taxer on land." Burroughs on Taxation (page 502) takes the same view: "Direct Taxes. The kinds of taxation au- thorized are both direct and indirect. The construction given to the expression 'direct taxes' is that it includes only a tax on land and a poll tax, and this is in accord with the views of writers upon precedents. Former leso- lutions upon titles of the same kind could afford him no assurance at all. Nay, eveu a decision of a court of justice upon the very identical title would be nothing more than a precarious, temporary security. The principle upon which it was founded might, in the course of a few years, become antiquated. The same title might be again drawn into dis- pute. The taste and fashion of the times might be improved, and on that ground a future judge might hold himself at liberty, if not consider it his duty, to pay as little re- gard to the maxims and decisions of his pred- ecessor as that predcH-essor did to the maxims and decisions of those who went before him." Fearne. Rem. (Ivondon Ed. 1801) p. 2CA. The disastrous consequences to flow from disregarding settled decisions, thus cogently described, must evidently become greatly magnified in a caise like the present, when the opinion of the court affects fundamental prin- ciples of the governmont by denying an es- sential power of taxation long conceded to exist, and often exerted by congress. If it was necessary that tlie previous decisions of this court should be repudiated, the power to amend the constitution existed, and should have been availed of. Since the Hylton Case was decided, the constitution lias been repeat- edly amended. The construction which con- fined the word "direct" to capitation and land taxes was not changed by these amend- ments, and it should not now be reversed by what seems to me to be a judicial amendment of the constitution. The finding of the court in this case that the inclusion of rentals from real estate in an income tax makes it direct, \o that extent, is, in my judgment, conclusively denied by the authorities to which I have referred, and which establish the validity of an income tax In itself. Hence. I submit, the decision nec- essarily reverses the settled rule which it seemingly adopts in part. Can there be se- rious doubt that the question of the validity of an income tax, in which the rentals of real estate are included, is covered by the deci- sions which say that an income tax is gener- ically indirect, and that, therefore, it is valid without apportionment? I mean, of course, could there be any such doubt, were it not for the present opinion of the court? Before un- dertaking to answer this question 1 deem it necessary to consider some arguments ad- vanced or suggestions made. (1) The opinions of Turgot and Smith and other economists are cited, and it is said their views were known to the framers of the con- stitution, and we are then refeiTcd to the opinions of the framers themselves. The ob- ject of the collocation of these two sources of authority is to show that there was a concur- rence between them as to the meaning of the word "direct." But, in order to reach this conclusion, we are compelled to overlook the fact that this court has always held, as ap- pears from the preceding cases, that the opin- ions of the economists threw little or no light on the inteipretation of the word "direct," as found in the constitution. And the whole eft'ect of the decisions of this court is to es- tablish the proposition that the word has a different significance in the constitution from that which Smith and Turgot have given to it when used in a general economic sense. Indeed, it seems to me that the conclusion de- duced from this line of thought itself demon- strates its own unsoundness. What is that conclusion? That the framers well under- stood the meaning of "direct." Xow, it seems evident that the framers, who well understood the meaning of this word, have themselves declared in the most positive way that it shall not be here con- strued in the sense of Smith and Turgot. The congress which passed the carriage tax act was comi)osed largely of men who had participated in framing the constitution. That act was approved by Washington, who had presided over the deliberations of the convention. Certainly, Washington himself, and the majority of the framers, if they well undei'stood the sense in which the word "di- rect" was used,, would have declined to adopt and approve a taxing act which clearly vio- lated the provisions of the constitution, if the word "direct," as therein used, had the mean- ing wliich must be attached to it if read by the light of the theories of Turgot and Adam Smitli. As has already been noted, all the judges who expressed opinions in the Hyl- ton Case suggested that "direct." in the con- stitutional sense, referred only to taxes on land and capitation taxes. Could they have possibly made this suggestion if the word had been used as Smith and Turgot used it? It is immaterial whether the suggestions of the judges were dicta or not. They could not certainly have made this intimation, if they understood the meaning of the word "direct" as being that which it must have imported if construed according to the writ- ers mentioned. Take the language of Mr. Justice Paterson. "I never entertained a doubt that the principal, I will not say the only, objects that the framers of the consti- LIMITATIONS IMPOSED BY FEDERAL CONSTITUTIOX. 167 tutioD contemplated as fallinjj within the rule of apportionment were a capitation tax and a tax on land." He had borne a conspicuous part in the convention. Can we say that he undei-stood the meaning of the framers, and ,yet. after the lapse of a himdred years, fi"it- ter away that language, uttered by him from this bench in the tlrst great case in which this court was called upon to inteipret the meaning of the word "direct"? It cannot be said that his language was used carelessly, or without a knowledge of its great import. The debate upon the passage of the carriage tax act had manifested divergence of opinion as to the meaning of the word "direct." The magnitude of the issue is shown by all contemporaneous authoi-ity to have been deeply felt, and its far-reaching consequence V4'as appreciated. Those controversies came here for settlement, and were then determin- ed with a full knowledge of the importance Df the issues. They should not be now re- opened. The argument, then, it seems to me, re- duces itself to this: That the framers well knew the meaning of the word "direct"; that, so well understanding it, they practical- ly interpreted it in such a way as to plainly indicate that it had a sense contrary to that now given to it, in the view adopted by the court. Although they thus comprehended the meaning of the word and intei'preted it at an early day, their inteipretatiou is now to be overthrown by resorting to the econo- mists whose construction was repudiated by them. It is thus demonstrable that the con- clusion deduced from the premise that the framers well understood the meaning of the ■word "direct" involves a fallacy; in other words, that it draws a faulty conclusion, even if the predicate upon which the conclu- sion is rested be fully admitted. But I do not admit the premise. The views of the fram- ers, cited in the argument, conclusively show that they did not well understand, but were In great doubt as to, the meaning of the word "direct." The use of the word was the result of a compromise. It was accepted as the solution of a difficulty which threaten- ed to frustrate the hopes of those who look- ed upon the formation of a new government as absolutely necessary to escape the condi- tion of weakness which the articles of con- federation had shown. Those who accepted the compromise viewed the word in different lights, and expected different results to flow from its adoption. This was the natural re- sult of the struggle which was terminated by the adoption of the provision as to repre- sentation and direct taxes. That warfare of opinion had been engendered by the exist- ence of slavery in some of the states, and was the consequence of the conflict of inter- est thus brought about. In reac-hing a set- tlement, the minds of those who acted on it were naturally concerned in the main with the cause of the contention, and not with the other things which had been previously settled by the convention. Thus, while there was, in all probability, clearness of vision as to the meaning of the word "direct," in rela- tion to its bearing on slave pi'operty, there was inattention in regard to other things, and there were therefore diverse opinions as to its proper signification. That such was the case in regard to many other clauses of the constitution has been showm to be the ease by t.- !se great controversies of the past, which have been peacefully settled by the adjudications of this court. While this dif- ference undoubtedly existed as to the effect to be given the word "direct," the consensus of the majoritj^ of the framers as to its meaning was shown by the passage of the carriage tax act. That consensus found ade- quate expression in the opinions of the jus- tices in the Hylton Case, and in the decree of this court there rendered. The passage of that act, those opinions, and that decree, settled the proposition that the word applied only to capitation taxes and taxes on land. Nor does the fact that there was differ- ence in the minds of the fi-amers as to the meaning of the word "direct" weaken the binding force of the interpretation placed up- on that word from the beginning; for, if such difference existed, it is certainly sound to hold that a contemporaneous solution of a doubtful question, which has been often con- firmed by this court, should not now be re-' versed. The framers of the constitution, the members of the earliest congress, the illus- ti'ious man first called to the office of chief executive, the jurists who first sat in this court, two of whom had borne a great part in the labors of the convention, all of whom dealt with this doubtful question, surely oc- cupied a higher vantage ground for its cor- rect solution than do those of our day. Here, then, is the dilemma: If the framers under- stood the meaning of the word "direct" in the constitution, the pi-actical effect which they gave to it should remain undisturbed; if they were in doubt as to the meaning, the interpretation long since authoritatively af- fixed to it should be upheld. (2) Nor do I think any light is thrown upon the question of whether the tax here undsr consideration is direct or indirect by refer- ring to the principle of "taxation without rep- resentation," and the great struggle of our forefathers for its enforcement. It cannot be said that the congress which passed this act was not the representative body fixed by the constitution. Nor can it be contended that the struggle for the enforcement of the principle involved the contention that repre- sentation should be in exact proportion to the wealth taxed. If the argument be used in order to draw the inference that because, in this instance, the indirect tax imposed will operate differently through various sections of the country, therefore that tax should be treated as direct, it seems to me it Is un- sound. The right to tax, and not the effects which may follow from Its lawful exercise. 168 THE POWER OF TAXATIOX. is the only judicial question which this court is called upon to consider. If an indirect tax, which the constitution has not subject- ed to the rule of apiwrtionment, is to be held to be a direct tax, because it will bear upon aggregations of property in different sections of the country according to the extent of such aggregations, then the power is denied to congress to do that which the constitu- tion authorizes because the exercise of a law- ful power is supposed to work out a result which, in the opinion of the court, was not contemplated by the fathers. If this be sound, then every question which has been determined in our past history is now still open for judicial reconstruction. The just- ness of tariff legislation has turned upon the assertion on the one hand, denied on the oth- er, that it operated une(iually on the Inhab itants of different sections of the country. Those Avho opposed such legislation have al- ways contended that its necessary effect was not only to put the whole burden upon one section, but also to directly eurich certain of our citizens at the expense of the rest, and thus build up great fortunes, to the benefit of the few and the detriment of the many. Whether this economic contention be true or untrue is not the question. Of course, I in- timate no view on the subject. Will it be said that if, to-morrow, the personnel of this court should be changed, it could deny the power to enact tariff legislation which has been admitted to exist in congress from the beginning, upon the ground that such legisla- tion beneficially affects one section or set of people to the detriment of others, within the spirit of the constitution, and therefore con- stitutes a direct tax? (3) Nor, in my judgment, does any force re- sult from the argument that the framers ex- pected direct taxes to be rarely resorted to, and, as the present tax was imposed without public necessity, it should be declared void. It seems to me that tiiis statement begs the whole question, for it assumes that the act now before us levies a direct tax, whereas the question whether the tax is direct or not is the very issue involved in this case. If congress now deems it advisable to resort to certain forms of indirect taxation which have been frequently, though not continu- ously, availed of in the past, I cannot see that its so doing affords any reason for con- verting an indirect into a direct tax in or- der to nullify the legislative will. The pol- icy of any particular method of taxation, or the presence of an exigency which requires its adoption, is a purely legislative question. It seems to me that it violates the elementa- ry distinction between the two departments of the government to allow an opinion of this court upon the necessity or expediency of a tax to affect or control our determina- tion of the existence of the power to im- pose it. But I pass from these considerations to ap- proach the question whether the Inclusion of rentals fi-om real estate in an income tax renders such a tax to that extent "direct" under the constitution, bei^-ause it constitutes the imix)sition of a direct tax on the land itself. Does the inclusion of the rentals fi*om real estate in the sum going to make up the ag- gregate income from which (in order to ar- rive at taxable income) is to be deducted insurance, repairs, losses in business, and $4,000 exemption, make the tax on income so ascertained a direct tax on such real es- tate? In answering this question, we must nec- essarily accept the interpretation of the word "direct" authoritatively given by the history of the government and the decisions of this court just cited. To adopt that in- tei-pretation for the general purposes of an income tax, and then repudiate it because of one of the elements of which it is composed, would violate every elementary nile of con- struction. So, also, to seemingly accept that interpretation, and then resort to the framere and the economists in order to limit its ap- plication and give it a different significance, is equivalent to its destruction, and amounts to repudiating it without directly doing so. Under the settletl interpretation of the word, we ascertain whether a tax be "direct" or not by considering whether it is a tax on land or a capitation tax. And the tax on land, to be within the provision for appor- tionment, must be direct. Therefore we have two things to take into account: Is it a tax on land, and is it direct thereon, or so im- mediately on the land as to be equivalent to a direct levy upon it? To say that any bur- den on land, even though indirect, must be apportioned, is not only to incorporate a new provision in the constitution, but is also to obliterate all the decisions to which I have referred, by constiniing them as hold- ing that, although the constitution forbids only a direct tax on land without apportion- ment, it must be so intei-preted as to bring an indirect tax on land within its inhibition. It is said that a tax on the rentals is a tax on the land, as if the act here under con- sideration imposed an immediate tax on the rentals. This statement, I submit, is a mis- conception of the issue. The pKjint involved is whether a tax on net income, when such income is made up by aggregating all sources of revepue and deducting repairs, insurance, losses in business, exemptions, etc., becomes, to the extent to which real-estate revenues may have entered into the gross income, a direct tax on the land itself. In other words, does that which reaches an income, and thereby reaches rentals indirectly, and reach- es the land by a double indirection, amount to a direct levy on the land itself? It seems to me the question, when thus accurately stated, furnishes Its own negative response. Indeed, I do not see how the issue can be stated precisely and logically witliout mak- ing It apparent on its face that the iuclu- LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION". 169' sion of rental from real property in income is nothing more ttian an indirect tax upon the land. It must be borne in mind that we are dealing not with the want of power in con- gress to assess real estate at all. On the contrary, as I have shown at the outset, con- gress has plenary power to reach real estate, both directly and indirectly. If it taxes real estate directly, the constitution commands that such direct imposition shall be appor- tioned. But because an excise or other indi- rect tax, imposed without apportionment, has an indirect effect upon real estate, no viola- tion of the constitution is committed, be- cause the constitution has left congress un- trammeled by any rule of apportionment as to indirect taxes, — imposts, duties, and ex- cises. The opinions in the Hylton Case, so often approved and reiterated, the unani- mous views of the text writers, all show that a tax on land, to be direct, must be an as- sessment of the land itself, either by quan- tity or valuation. Here there is no such as- sessment. It is well also to bear in mind, in considering whether the tax is direct on the laud, the fact that if land yields no rental it contributes nothing to the income. If it is vacant, the law does not force the owner- to add the rental value to his taxable income. And so it is if he occupies it himself. The citation made by counsel from Coke on Littleton, upon which so much sitress is laid, seems to me to have no relevancy. The fact that where one delivers or agrees to give or ti-ansfer land, with all the fruits and rev- enues, it will be presumed to be a convey- ance of the land, in no way supports the proposition that an indirect tax on the rental of land is a direct burden on the land itself. Nor can I see the application of Brown v. Maryland; Weston v. City Council; Dobbins V. Commissioners; Almy v. Calif ornia ; Cook v. Pennsylvania; Railroad Co. v. Jackson; Philadelphia & S. S. S. Co. v. Pennsylvania; Leloup V. Mobile; Telegraph Co. v. Adams. All these cases involved the question whether, under the constitution, if no power existed to tax ait all, either directly or indirectly, an indirect tax would be unconstitutional. These cases would be apposite to this if congress had no power to tax real estate. Were such the case, it might be that the imposition of an excise by congress which reached real estate indirectly would necessarily violate the constitution, because, as it had no power in the premises, every attempt to tax, direct- ly or indirectly, would be null. ELere, on the contrary, it is not denied that the power to tax exists in congress, but the question is, is the tax director indirect, in the consti- tutional sense? But it is unnecessary to follow the argu- ment further; for, if I understand the opin- ions of this court already referred to, they absolutely settle the proposition that an in- clusion of the rentals of real estate in an in- come tax does not violate the constitution. At the risk of repetition, I propose to go over the cases again for the purpose of demon- strating this. In doing so, let it be under- stood at the outset that I do not question the authority of Cohens v. Virginia or Car- roll V. Carroll's Lessee or any other of the cases referred to in argument of counsel. These great opinions hold that an adjudica- tion need not be extended beyond the prin- ciples which it decides. While conceding this, it is submitted that, if decided cases do directly, affirmatively, and necessarily, in principle, adjudicate the very question here involved, then, under the very text of the opinions refen-ed to by the court, they should conclude this question. In the first case, that of Hylton, is there any possibility, by the subtlest ingenuity, to reconcile the decision here announced with what was there estab- lished? In the second case (Insurance Co. v. Soule) the levy was upon the company, its pre- miums, its dividends, and net gains from all sources. The case was certified to this court, and the statement made by the judges in ex- planation of the question which they pro- pounded says: "The amount of said premiums, dividends, and net gains were truly stated in said lists or returns." Original Record, p. 27. It will be thus seen that the issue there presented was not whether an income tax on business gains was valid, but whether an in- come tax on gains from business and all other net gains was constitutional. Under this state of facts, the question put to the court was— "Whether the taxes paid by the plaintiff, and sought to be recovered back, in this ac- tion, are not direct taxes within the meaning of the constitution of the United States." This tax covered revenue of every possible nature, and it therefore appears self-evident that the court could not have upheld the statute without deciding that the income de- rived from realty, as well as that derived from every other source, might be taxed without apportionment. It is obvious that, if the court had considered that any pai-ticu- lar subject-matter which the statute reached was not constitutionally included, it would have been obliged, by evei-y rule of safe judi- cial conduct, to qualify its answer as to this particular subject. It is impossible for me to conceive that the court did not embrace in its ruling the con- stitutionality of an income tax which includ- ed rentals from real estate, since, without passing upon tliat question, it could not have decided the issue presented. And another reason why it is logically impossible that this question of the validity of the inclusion of the rental of real estate in an income tax could have been overlooked by the court is found in the fact, to which 1 have already adverted, that this was one of the pnncipal points urged upon its attention, and the ar- gument covered all the ground which has 17U THE powEii OF taxat:ox. been occupied here,— indeed, tlie very citatinn from Coke upon Littleton, now urged as con- clusive, was there made also in the brief of counsel. And although the return of in- come, involved in that case, was made "in block," the very fact that the burden of the argument was that to include rentals from real estate, in income subject to taxation, made such tax pro tanto direct, seems to me to indicate that such rentals had entered into the return made by the corporation. Again, in the case of Scholey v. Kew, the tax in question was laid directly on the i-ight to take real estate by inheritance, — a right which the United States had uo power to control. The case could not have been decid- ed, in any point of view, without holding a lax upon that right was not direct, and that, therefore, it could be lex'ied without appor- tionment. It is manifest that the- court could not have overlooked the question whether this was a direct tax on the land or not, be- cause in the argument of counsel it was said, if there was any tax in the world that was a tax on real estate which was direct, that was the one. The court said it was not. and sustained the law. I repeat that the tax there was put directl.v upon the right to in- herit, which con.gress had uo power to regu- late or control. The case was therefore great- ly stronger than that here presented, for con- gress has a right to tax real estate directly with apixirtionment. That decision cannot be explained away by saying that the court overlooked the fact that congress had no power to tax the devolution of real estate, and treated it as a tax on such devolution. Will it be .said, of the distinguished men who then adorned this bench, that, although the argument was pressed upon them that this tax was levied directl.v on the real estate. the.v ignored the elementaiy principle that the control of the inlieritance of realty is a state and not a federal function V But. e\en if the case proceeded upon the theory that the tax was on the devolution of the real es- tate, and was therefore not direct, is it not absolutely decisive of this controversy? If to put a burden of taxation on the right to take real estate by inheritance reaches realty only by indirection, Ikjw can it be said that a tax on the income, the result of all sources of i-evenue. including rentals, after deduct- ing losses and expenses, which thus reaches the rentals indirectly, and the real estate in- directly through the rentals, is a dii'ect tax on the real estate itself/ So. it is manifest in the Springer Case that the same question was necessarily decided. It seems obvious that the court intended in that case to decide the whole question, in- cluding the right to tax rental from real es- tate without apportionment. It was elabo- rately and carefully argued there that as the law included the rentals of land in the in- come taxed, and such inclusion was unconsti- tutional, this, therefore, destroyed that part of the law which imposed the tax on the rev- enues of personal property. Will it be said, in view of the fact that in this verj* case four of the judges of this court think that the in- clusion of the rentals from real estate in an income tax renders the whole law invalid, that the question of the inclusion of the rent- als was of no moment there, because the re- turn there did not contain a mention of such rentals? Were the great judges who then composed this court so neglectful that they did not see the importance of a question which is now considered by some of its mem- bers so vital that the result in their opinion is to annul the whole law, more especially when that question was pressed upon the court in argument with all possible vigor and earnestness? But I think that the opinion in the Springer Case clearly shows that the court did consider this question of im- portance, that it did intend to pa.ss upon it, and that it deemed that It had decided all the questions affecting the validity of an in- come tax in passing iipon the main issue, which included the others as the greater in- cludes the less. I can discover no principle upon which these cases can be considered as any less conclusive of the right to include rentals of land in the concrete result, income, than they are as to the right to lev.v a general income tax. Certainly, the decisions which hold that an income tax as such is not direct, de- cide on principle that to include the rentals of real estate in an income tax does not make it direct. If embracing rentals in income makes a tax on income to that extent a '"di- rect" tax on the land, then the same word, in the same sentence of the constitution, has two wholly distinct constitutional meanings, and signities one thing when ap]>lied to an income tax generally, and a different thing when applied to the poi'tiou of such a tax made up in part of rentals. That is to say, the word means one thing when applied to the greater, and another when ai)plied to the lesser, tax. My inability to agree with the court in the conclusions which it has just expressed caiises me much regret. (Jreat as is my re- spect for any view by it announced, I can- not resi.st the conviction that its opinion and decree in this case virtually aniuils its pre- vious decisions in regard to the powers of congress on the subject of taxation, and is therefore fiaught with danger to the court, to each and every citizen, and to the repub- lic. The conservation and orderly develop- ment of our institutions rest on our accept- ance of the results of the past, and their use as lights to guide our stejis in the future. Teach the lesson that settle-d principles may be overthrown at any time, and confusion and turmoil must ultimately result. In the discharge of its function of interpreting the constitution this court exercises an august power. It sits removed from the contentious of political parties and the animosities of factions. It seems to me that the accoui- LIMITATIONS IMPOSED BY FEDERAL CONSTITUTION. 171 plishmcnt of its lofty mission can only be se- cured by the stability of its teaeliings and the sanctity which surrounds them. If the permanency of its conclusions is to depend upon the personal opinions of those who, from time to time, may make up its mem- bership, it will inevitably become a theater of political strife, and its action will be with- out coherence or consistency. There is no xreat principle of our constitutional law, such as the nature and extent of the com- merce power, or the currency power, or oth- «r powers of the federal government, which has not been ultimately delined by the adju- dications of this court after long and earnest struggle. If we are to go back to the orig- inal sources of our political system, or are to appeal to the writings of the economists in order to unsettle all these great princi- ples, everything is lost, and nothing saved to the people. The riglits of every individ- ual are guai'antied by the safeguards wliich have been thrown around them by ovu- adju- dications. If these are to be assailed and overthrown, as is the settled law of income taxation by this opinion, as I understiind it, the rights of property, so far as the federal constitution is concerned, are of little worth. My sti'ong convictions forbid that I take part in a conclusion whic-h seems to me so full of peril to the country. I am unwilling to do so, without reference to the question of what my personal opinion upon the subject might be if the question were a new one, and was thus unaffected by the action of the framers, the histoiy of the government, and the long line of decisions by this court. The wisdom of our forefathers in adopting a writ- ten constitution has often been impeached up- on the theory that the interpretation of a Avritten instrument did not afford as complete protection to liberty as would be enjoyed un- der a constitution made up of the traditions of a free people. AVriting, it has been said, does not insure greater stability than tradi- tion does, while it destroys flexibility. The answer has always been that by the foresight of the fathers the construction of our written constitution was ultimately coniided to this body, which, from the nature of its judicial structure, could always be relied upon to act with perfect freedom from the influence of faction, and to preserve the benefits of con- sistent interpretation. The fundamental con- ception of a judicial body is that of one hedged about by precedents Avhich are bind- ing on the court without regard to the per- sonality of its members. Break down this belief in judicial continuity, and let it be felt that on great constitutional questions this court is to depart from the settled conclusions of its predecessors, and to determine them all according to the mere opinion of those who temporarily fill its bench, and our constituiiou will, in my judgment, be bereft of value, and become a most dangerous instrument to the rights and liberties of the people. In regard to the right to include in an in- come tax the interest upon the bonds of mu- nicipal corporations, I think the decisions of this court, holding that the federal govern- ment is without power to tax the agencies of the state government, embrace such bonds, and that this settled line of authority, is con- clusive upon my judgment here. It deter- mines the question that, where there is no power to tax for any purpose whatever, no direct or indirect tax can be imposed. The authorities cited in the opinion are decisive of tliis question. They are relevant to one case, and not to the other, because, in the one case, there is full power in the federal gov- ernment to tax, the only controversy being whether the tax imix)sed is direct or indirect; while in the other there is no power whatever in the federal government, and therefoi-e the levy, whether direct or indirect, is beyond the taxing power. Mr. .Tustice HARTjAX authorizes me to say that he concurs in tlie views herein ex- pressed. 172 THE POWER OF TAXATION LOAN ASSOCIATION v. TOPEKA.i (20 Wall. 655.) Supreme Court of the United States. Oct., 1874. Error to the circuit court for the district of Kansas. This was an action instituted by the Citi- zens' Saving & Loan Association of Cleve- land against the city of Topeka on interest coupons attached to bonds issued by the de- fendant under Acts Kan. Feb. 29, 1872, and March 2, 1872, empowering cities to issue bonds for the encourage- nient and establish- ment of manufactories therein, and such oth- er enterprises as may tend to develop and improve them. A demurrer interposed to the declaration by the defendant was sustain- ed, and a judgment was rendered in favor of defendant, and plaintiff brought error. Af- firmed. Alfred Ennis, for plaintiff in eiTor. Ross, Burns, and A. L. Williams, contra. Mr. .Justice MILLER delivered the opinion of the court. Two grounds are taken in the opinion of the circuit judge and in the argument of counsel for defendant, on which it is insisted that the section of the statute of February 29th, 1872, on which the main reliance is pla- ced to issue the bonds, is unconstitutional. The first of these is, that by section five of article twelve of the constitution of that state it is declared that provision shall be made by general law for the organization of cities, towns, and villages; and their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, shall be so restricted as to i)revent the abuse of such power. The argument is that the statute in ques- tion is void because it authorizes cities and towns to contract debts, and does not con- tain any restriction on the power so confer- red. But whether the statute which confers power to contract debts should always con- tain some limitation or restriction, or wheth- er a general restriction applicable to all cas- es should be passed, and whether in the ab- sence of both the grant of power to contract is wholly void, are questions whose solution we prefer to remit to the state courts, as in tins case we find ample reason to sustain the demurrer on the second ground on which it is argued by counsel and sustained by the circuit court. That proposition is that the act authorizes the towns and other municipalities to which it applies, by issuing bonds or loaning their credit, to take the propei-ty of the citizen un- der the guise of taxation to pay these bonds, and use it in aid of the enterprises of others which are not of a public character, thus per- verting the right of taxation, which can only 1 Dissenting opinion of Mr. Justice Clifford omitted. be exercised for a public use, to the aid of individual interests and personal purposes of profit and gain. The proposition as thus broadly stated is not new, nor is the question which it raises difficult of solution. If these municipal corporations, which are in fact subdivisions of the state, and which for many reasons are vested with quasi legis- lative powers, have a fund or other property out of which they »an pay the debts which they contract, without resort to taxation, it may be within the power of the legislature of the state to authorize them to use it in aid of projects strictly private or personal, but which would in a secondary manner con- tribute to the public good; or ■^'here there is property or money vested in a coii^oration of the kind for a particular use, as public wor- ship or charity, the legislature ma.v pass laws authorizing them to make contracts in refer- ence to this property, and incur debts pay- able from that source. But such instances are few and excep- tional, and the proposition is a very broad one, that debts contracted by municipal cor- porations must be paid, if paid at all, out of taxes which they may lawfully levy, and that all contracts creating debts to be paid in fu- ture, not limited to payment from some other source, imply an obligation to pay by taxa- tion. It follows that in this class of cases the right to contract must be limited by the right to tax, and if in the given case no tax can lawfully be levied to pay the debt, the cun- tract itself is void for want of authority to make it. If this were not so, tliese corporations could make valid promises, which they have no means of fulfilling, and on which even the legislature that created them can confer no such power. The validity of a contract which can only be fulfilled by a resort to taxation, depends on the power to levy the tax for that purpose. 2 It is, therefore, to be inferred that when the legislature of the state authorizes a coun- ty or city to contract a debt by bond, it in- tends to authorize it to levy such taxes as are necessary to pay the debt, unless there is in the act itself, or in some general stat- ute, a limitation upon the power of taxation which repels such an inference. With these remarks and with the reference to the authorities which support them, we assume that luih ss the legislature of Kansas had the right to authorize the counties and towns in that state to levy taxes to be used in aid of manufacturing enterprises, conduct- ed by individuals, or private corporations, for pui-poses of gain, the law is void, and the bonds issued under it are also void. We 2 Sharpless v. Mayor, 21 Pa. St. 147. 167; Hanson v. Vernon. 27 Iowa, 28; Allen v. Inhab- itants of Jay. 60 Me. 127; I^owell v. City of Bo.s- ton. 111 ^Ltss. 454; Whiting y. Fond du Lac» 25 Wis. 188. LrMITATlOXS IMPOSED BY STATE CONSTITUTIONS. 173 proceed to the inquiry whether such a power exists in the legislature of the state of Kan- sas. We have already said the question is not new. The subject of the aid voted to rail- roads by counties and towns has been brought to the attention of the courts of almost ev- ery state in the Union. It has been thor- oughly discussed and is still the subject of ■discussion in those courts. It is quite true that a decided preponderance of authority is to be found in favor of the proposition that the legislatures of the states, unless resti'ict- ed by some special provisions of their consti- tutions, may confer upon these municipal bodies the right to take stock in corporations ■created to build railroads, and to lend their credit to such corporations. Also to levy the necessary taxes on the inhabitants, and on property within their limits subject to gen- eral taxation, to enable them to pay the debts thus incurred. But very few of these class and give unlimited wealth and prosperity to the other, if there is no implied limitation of the uses for which the power may be exercised. To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done undei- the forms of law and is called taxation. This is not legislation. It is a decree under legislative forms. Nor is it taxation. A "tax," says Webstei-'s Dictionary, "is a rate or sum of money as- sessed on the person or property of a citi- zen by government for the use of the nation or state." "Taxes are burdens or charges imposed by the legislature upon persons or propei-ty to raise money for public purposes." Cooley, Const. Lim. 479. ('oulter, .1.. in Northern Liberties v. St. John's Church, 13 Pa. St. 104.o says, very forcibly, "I think the common mind has ev- erywhere taken in the understanding that taxes are a public imposition, levied by au- thority of the government for the purpose of carrying on the government in all its ma- 5 AVhiting v. Fond du Lac. 2.'> Wis. 188; Coo- ley, Const. Lim. 129, 175, 487; Dill. Mini. Corn. § 587. c See, also. Pray v. Northern Liberties, 31 Pa. St. (i*J: In re New York, 11 Johns. 77: Camden v. Allen. 2(! N. J. Law. 3r)8; Sliarpless v. Mayor, supra; Hanson v. Vernon. 27 Iowa, 47; Whit- ing v. Fond du Lac, 25 \\'is. 188. chinery and operations— that they are im- posed for a public purpose." We have established, we think, beyond caAil that there can be no lawful ta.x which is not laid for a public purpose. It may not be easy to draw the line in all cases so as to decide what is a public purpose in this sense and what is not. It is undoubtetlly the duty of the legisla- ture which imposes or authorizes municipali- ties to impose a tax to see that it is iu>t to be used for purposes of private interest in- stead of a public use, and the courts can only be justified in interposing when a viohition of this principle is clear and the reason for interference cogent. And in deciding wheth- er, in the given case, the object for which the taxes are assessed falls upon the one side or the other of this line, they must be governed mainly by the course and usage of the gov- ernment, the objects for which taxes have been customarily and by long course of legis- lation levied, what objects or purposes have been considered necessary to the support and for the proper use of the government, wheth- er state or municipal. Whatever lawfully pertains to this and is sanctioned by time and the acquiescence of the people may well be held to belong to the public use. and prop- er for the maintenance of gooil government, though this may not be the only criterion of rightful taxation. But in the case before us, in which the towns are authorized to contribute aid by way of taxation to any class of manufac- turers, there is no difticulty in holding that this is not such a public purpose as Ave have been considering. If it be said that a bene- fit results to the local public of a town by establishing manufactures, the same may be said of any other business or pursuit which employs capital or labor. The merchant, the mechanic, the innkeeper, the banker, the builder, the steamboat owner are equally pro- moters of the public good, and equally de- serving the aid of the citizens by forced con- tributions. No line can be drawn in favor of the manufacturer which avouUI not open the coffers of the public treasury to the im- portunities of two-thirds of the business men of the city or town. A reference to one or two cases adjudicated liy courts of the highest character will be sufiicient, if an.v authority were needed, to sustain us in this proposition. In the case of Allen v. Inhabitants of Jay. (■>(> Me. 124. the town meeting had voted to loan their credit to the amount of $10,0fK). to Hutchins and Lane, if they would invest ipl2,0()0 in a steam saw-mill, grist-mill, and box-factory machinery, to be built in that town by them. There was a provision to se- cure the town by mortgage on the mill, and the selectmen AA-ere authorized to issue toAvn bonds for the amount of the aid so A'oted. Ten of the taxable inhabitants of the toAvn tiled a bill to enjoin the selectmen from issu- ing the bonds. LIMITATIONS IMPOSED BY STATE COKSTITUTIONS. 1' The supreme judicial court of Maine, iu an able opinion by Chief Justice Appleton, held that this was not a public purpose, and that the town could levy no taxes on the inhabit- ants in aid of the enterprise, and could, there- fore, issue no bonds, though a special act of the legislature had ratified the vote of the town, and they granted the injunction as prayed for. Shortly after the disastrous fire in Boston, in 1872, which laid an important part of that city in ashes, tlie governor of the state con- vened the legislative body of Massachusetts, caMed the "General Court," for the express purpose of atrording some relief to the city and its people from the sufferings consequent on this great calamity. A statute was pass- ed, among others, which authorized the city to issue its bonds to an amount not exceed- ing twenty millions of dollars, which bonds were to be loaned, under proper guards for securing the city from loss, to the owners of the ground whose buildings had been de- stroyed by fire, to aid them in rebuilding. In the case of Lowell v. City of Boston (111 Mass. 454), in the supreme judicial court of Massachusetts, the validity of this act was considered. We have been furnished a copy of the opinion, though it is not yet reported in the regular series of that court. The Amer- ican Law Review for July, 1873, says that the question was elaborately and ably ar- gued. The court, in an able and exhaustive opinion, decided that the law was unconsti- tutional, as giving a right to tax for other than a public purpose. The same court had previously decided, in the case of Jenkins v. Anderson, 103 Mass. 74, that a statute authorizing the town au- thorities to aid by taxation a school estab- lished by the Avill of a citizen, and governed by ti'ustees selected by the will, was void because the school was not under the control of the town ofticers, and was not, therefore, a public purpose for which taxes could be levied on the inhabitants. The same principle precisely was decided by the state court of Wisconsin in the case of Curtis V. Whipple, 24 Wis. 35(J. In that case a special statute which authorized the town to aid the Jefferson Liberal Institute was declared void because, though a school of learning, it was a private enterprise not under the control of the town authorities. In the subsequent case of Whiting v. Fond du Lac, already cited, the principle is fully considered and reaffirmed. These cases are clearly in point, and they assert a principle which meets our cordial approval. We do not attach any importance to the fact that the town authorities paid one in- stalment of interest on these bonds; Such a payment works no estoppel. If the legis- lature was without power to authorize the issue of these bonds, and its statute attempt- ing to confer such authority is void, the mere payment of interest, which was equally un- authorized, cannot create of itself a power to levy taxes, resting on no other foundation than the fact that they have once been ille- gally levied for that purpose. The act of March 2, 1872, concerning inter- nal improvements, can give no assistance to these bonds. If we could hold that the cor- poration for manufacturing wrought-iron bridges was within the meaning of the stat- ute, which seems very ditftcult to do, it would still be liable to the objection that money raised to assist the company was not for a public purpose, as we have already demon- strated. Judgment affirmed. Mr. Justice CLIFFORD, dissenting. 17G CIVIL RIGHTS A^D THEIR PROTECTIOX BY THE CONSTITUTIONS. "THE CIVIL RIGHTS CASES." i UNITED STA;I?ES v. STANLEY. [On a Certificate of Division in Opinion lietwoen tlie .Judges of the Circuit Court of the United States for the District of Kansas.] UNITED STATES v. RYAN. [In Error to the Circuit Court of the United States for the District of California.] UNITED STATES v. NICHOLS. [On a Certificate of Division in Opinion between the .Judges of the Circuit Court of the United States for the Western District of Missouri.] UNITED STATES v. SIN(}LETON. ,'[0n a Certificate of Division in Opinion between the Judges of the Circuit Court of the United States for the Soutliern District of New York.] ROBINSON and wife v. MEMPHIS & CHARLESTON R. CO. Iln Error to the Circuit Court of the United State for the Western District of Tennessee.] (3 Sup. Ct. 18, 109 U. S. 3.) Supreme Court of the United States. Oct. 15, 1883. Sol. Gon. Phillips, for plaintiff, the Unitetl States. No counsel for defendants, Stanley, Ryau, Nichols, and Sinj^letou. Wni. M. Randolph, for plaintiffs in error, Robinson and ■wife. W. Y. C Humes, for defendant in error, the Memphis & Charleston R. Co. BRADLEY, .T. These eases are all founded on the first and second sections of the act of congress known as the "Civil Rijjfhts Act," passed March 1, 187."), entitled "An act to pro- tect all citizens in their civil and legal rights." 18 Stat. 33.3. Two of the cases, those against Stanley and Nichols, are in- dictments for denying to persons of color the accommodations and privileges of an inn or hotel; two of them, those against Ryau and Singleton, are, one an information, the other an indictment, for denying to individuals the privileges and accommodations of a theater, the information against Ryan being for refus- ing a colored person a seat in the dress cir- cle of JNIaguire's theater in San Francisco; and the indictment against Singleton being for denying to another person, whose color is not stated, the full enjoyment of the accom- modations of the theater known as the Grand Opera House in New York, "said denial not being made for any reasons by law applicable to citizens of every race and color, and re- gardless of any previous condition of servi- tude." The case of Robinson and wife against the Memphis cV: Charleston Railroad Company was an action brought in the circuit court of the United States for the Western district of Tennessee, to recover the penalty of $500 1 Dissenting opinion of Mr. Justice Harlan omitted. given by the second section of the act; and the gravamen was the refusal by the conduct- or of the railroad company to allow the wife to ride iu the ladies' car, for the reason, as stated in one of the counts, that she was a person of African descent. The jury render- ed a verdict for the defendants in this case upon the merits under a charge of the court, to which a bill of exceptions was taken by the plaintiffs. The case was tried on the as- sumption by both parties of the validity of the act of congress; and the principal point made by the exceptions was that the judge allowed evidence to go to the jury tending to show that the conductor had reisou to suspect that the plaintiff, the wife, was an improper persou, because she was in company with a young mau whom he supposed to be a white nuin, and on that account inferred that there was some improper connection between them; and the judge charged the jury, iu substance, that if this was the conductor's bona fide rea- son for excluding the w^oman from the car, they might take it mto consideration on the question of the liability of the company. Tlie case is brought here by writ of error at the suit of the plaintiffs. The cases of Stan- ley, Nichols, and Singleton come up on cer- tificates of division of opinion between the judges below as to the constitutionality of the first and second sections of the act refer- red to; and the case of Ryan, on a wnit of er- ror to the judgment of the circuit court for the district of California sustaining a demur- rer to the information. It is obvious that the primary and impor- tant question in all the cases is the consti- tutionality of the law; for if the law is un- constitutional none of the prosecutions can stand. The sections of the law referred to pro- vide as follows: "Section 1. That all persons within the ju- risdiction of the United States shall be en- titled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theater s, and other places of public amusement; subject only to the conditions and limitations establislied by law, and ap- plicable alike to citizens of every race and color, regardless of any ijrevious condition of seiwitude. "Sec. 2. That any person who shall violate the foregoing section by denying to any cit- izen, except for reasons by law applicable to citizens of every race and color, and regard- less of any previous condition of servitude, the full enjoyment of any of the acconmio- datious, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such of- fense, forfeit and pay the sum of $.500 to the person aggi'ieved thereby, to be recovered in an action of debt, with full costs; and shall, also, for every such offense, be deemed guilty of a misdemeanor, and upon conviction there- of shall bt fined not less than $500 nor more EQUAL PROTECTION OF THE LAWS. 177 than $1,000, or shall be imprisoned not less than 30 days nor more than one j^ear: Pro- vided, that all persons may elect to sue for the penalty aforesaid, or to proceed under their rights at common law and by state stat- utes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this provision shall not apply to criminal pro- 'ceedings, either under this act or the criminal law of any state: And provided, further, that a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to fither prosecu- tion respectively." Are these sections constitutional? The first section, which is the principal one, can- not be fairly understood without attending to the last clause, which qualifies the pre- ceding part. The essence of the law is, not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, and theaters; but that such enjoyment shall not be subject to any conditions applicable only to citizens of a particular race or color, or Avho had been in a previous condition of servitude. In other words, it is the purpose of the law to declare that, in the enjoyment of the accommodations and privileges of inns, public conveyances, theaters, and oth- er places of public amusement, no distinc- tion shall be made between citizens of dif- ferent race or color, or between those who have, and those who have not, been slaves. Its effect is to declare that in all inns, pub- lic conveyances, and places of amusement, •colored citizens, whether formerly slaves or not, a»d citizens of other races, shall have the same accommodations and privileges In all inns, public conveyances, and places of amusement, as are enjoyed by white citi- zens; and vice versa. The second section makes it a penal offense in any person to deny to any citizen of any race or color, re- gardless of previous servitude, any of the accommodations or privileges mentioned in the first flection. Has congress constitutional power to make such a law? Of course, no one will contend that the power to pass it was contained in the constitution before the adoption of the last three amendments. The power is sought, first, in the fourteenth amendment, and the views and arguments of distinguished sena- tors, advanced while the law was under con- sideration, claiming authority to pass it by virtue of that amendment, are the principal arguments adduced in favor of the power. We have carefully considered those argu- ments, as was due to the eminent ability of those who put them forward, and have felt, in all its force, the weight of authority which always invests a law that congress deems itself competent to pass. But the responsi- bility of an independent judgment is now thrown upon this court; and we are bound SMITH, CONST. LAW — 13 to exercise it according to the best lights we have. The first section of the fourteenth amend- ment, — which is the one relied on, — after de- claring who shall be citizens of the United States, and of the several states, is prohib- itory in its character, and prohibitory upon the states. It declares that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state de- prive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment. It has a deeper and broader scope. It nulli- fies and makes void all state legislation, and state action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws. It not only does this, but, in order that the national will, thus declared, may not be a mere bru- tum fulmen, the last section of the amend- ment invests congress Avith power to en- force it by appropi'iate legislation. To en- • force what? To enforce the prohibition. To adopt appropriate legislation for correct- ing the effects of such prohibited state laAV and state acts, and thus to render them ef- fectually null, void, and innocuous. This is the legislative power conferred upon con- gress, and this is the whole of it. It does not invest congress with power to legislate upon subjects which are within the domain of state legislation; but to provide modes of relief against state legislation, or state ac- tion, of the kind referred to. It does not au- thorize congress to create a code of munic- ipal law for the regulation of private rights; but to provide modes of redress against the operation of state laws, and the action of statQ officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly se- cured by the fourteenth amendment; but they are secured by Avay of prohibition against state laws and state proceedings af- fecting those rights and privileges, and by power given to congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect. A quite full discussion of this aspect of the amendment may be found in U. S. v. Oruik- shank, 92 U. S. 542; Virginia v. Rives, 100 U. S. 313, and Ex parte Virginia, Id. 339. An apt illustration of this distinction juay be found in some of the provisions of the original constitution. Take the subject of 178 CIVIL 1UGHT.S AND TIIEIU PHOTECTIOX BY THE CONSTITUTIONS. contrnets. for oxaiiii)U'. The constitution probibittd the states from passing any law impairing the obligation of conti*acts. This did not give to congress power to provide laws for tlie general enforcement of con- tracts; nor power to invest the coiu'ts of the Tnited States with jurisdiction over con- tracts, so as to enable parties to sue upon them in those courts. It did, however, give the power to provide remedies by which the impairment of contracts by state legislation might be counteracted and corrected; and this power was exercised. The remedy which congress actually provided was that contained in the twenty-fifth section of the judiciary act of ITW), giving to the supreme court of the Tnited States jurisdiction by writ of error to review the final decisions of state courts whenever they should sustain the validity of a state statute or authority, alleged to be repugnant to the constitution or laws of the United States. By this means, if a state law was passed impairing the ob- ligation of a conti'act, and the state tribunals sustained the validity of the law, the mis- chief could be corrected in this court. l"he legislation of congress, and the proceedings provided for under it, were corrective in their character. No attempt was made to draw into the United States courts the liti- gation of contracts generally, and no such attempt would have been sustained. We do not say that the remedy provided was the only one that might have been pi-ovided in that case. Probably congress had power to pass a law giving to the courts of the Unit- ed States direct jurisdiction over contracts alleged to be impaired by a state law; and, under the broad provisions of the act of March :{, 187.5, giving to the circuit courts jurisdiction of all cases arising under the constitution and laws of tlie United States, it is possible that such jurisdiction now ex- ists. But under that or any other law, it must appear, as Avell by allegation as proof at tlie trial, that the constitution had been violated by the action of the state legisla- ture. Some obnoxious state law passed, or that might be passed, is nec«>ssary to be as- sumed in order to lay the foundation of any fedei'al remedy in the case, an a species of sei-vitude within the meaning of the amendment. Conceding the major proposition to be true, that congress has a right to enact all necessary and proper laws for the obliteration and prevention of slavery, with all its badges and incidents, is the minor proposition also true, that the de- nial to any person of admission to the accom- modations and privileges of an inn, a public conveyance, or a theater, does subject that person to any form of servitude, or tend to fasten upon him any badge of slavery ? If it does not, then power to pass the law is not found in the thirteenth amendment. In a very able and learned presentation of the cognate question as to the extent of the rights, privileges, and immunities of citizens which cannot rightfully be abridged by state laws under the fourteenth amendment, made in a former case, a long list of burdens and . disabilities of a servile character, incident to feudal vassalage in France, and which were abolished by the decrees of the national as- sembly, was presented for the purpose of showing that all inequalities and observances exacted by one man from another, were serv- itudes or badges of slavery, which a great nation, in its effort to establish universal lib- erty, made haste to wipe out and destroy. But these were servitudes imposed by the old law, or by long custom which had the force of law, and exacted by one man from another without the latter's consent. Should any such servitudes be imposed by a state law, there can be no doubt that the law would be repugnant to the fourteenth, no less than to the thirteenth, amendment; nor any greater doubt that congress has adequate power to forbid any such servitude from being exacted. But is there any similarity between such servitudes and a denial by the owner of an inn, a public conveyance, or a theater, of its accommodations and privileges to an indi- vidual, even though the denial be founded on the race or color of that individual? Where does any slavery or servitude, or badge of either, arise from such an act of denial? Whether it might not be a denial of a right which, if sanctioned by the state law, would be obnoxious to the prohibitions of the four- teenth amendment, is another question. But what hac it to do with the question of slav- ery? It may be that by the black code, (as it was called,) in the times when slavery pre- vailed, the proprietors of inns and public conveyances were forbidden to receive per- sons of the African race, because it might assist slaves to escape from the control of their masters. This was merely a means of preventing such escapes, and was no part of the servitude itself. A law of that kind could not have any such object now, how- ever justly it might be deemed an invasion of the party's legal right as a citizen, and amenable to the prohibitions of the four- teenth amendment. The long existence of African slavery in this country gave us very distinct notions of what it was, and what were its necessai-y in- cidents. Compulsory service of the slave for the benefit of the master, restraint of his 182 CIVIL U GUTS AND THEIR PROTECTION BY THE CONSTITUTIONS. movemeuts except by the master's will, dis- ability to hold property, to make contracts, to have a standinjr in court, to be a witness against a white person, and such like burdens and incapacities were the inseparable inci- dents of the institution. Severer punislimeuts for crimes were imposed on the slave than on free persons guilty of the same offenses. Congress, as we have seen, by the civil rights bill of ISGO. passed In view of the thirteenth amendment, before the foui'teenth was adopt- ed, undertook to wipe out these burdens and disabilities, the necessary incidents of slavery, constituting its substance and visible form; and to secure to all citizens of every race and color, and without regard to previous servi- tude, those fundamental rights which are the essence of civil freedom, namel.v, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, pur- chase, lease, sell, and convey property, as is enjoyed by white citizens. Whether this leg- islation was fully authorized by the thirteenth amendment alone, without the sui)port which it afterwards received from the fourte(>nth amendment, after the adoption of which it was re-enacted with some additions, it is not necessary to inquire. It is referred to for the purpose of slLowing that at that time (in ISGti) congress did not assume, under the au- thority given b.v the thirteenth amendment, to adjust what may be called the social rights of men and races in the community; but only to declare and vindicate those fundamental rights* which appertain to the essence of citi- zenship, and the enjoyment or deprivation of which constitutes the essential distinction be- tween freedom and shivery. We must not forget that the province and scope of the thirteenth and fourteenth amend- ments are different: the former simply abol- ished slavery: the latter i)rohibited the states from abridging llie privileges or immmiities of citizens of the I'nitfHl States, from depriv- ing them of life, libert.v, or property without due process of law, and from denying to any the equal protection of the laws. The amend- ments are different, and the powers of con- gress under them are different. AVhat con- gress has power to do imder one. it may not have power to do under the other. I'nder the thirteenth amendment, it has only to do with slavery and its incidents. Ihider the fourteenth amendment, it has power to coun- teract and render nugatory all state laws and proceedings which have the effect to abridge any of the privileges or immunities of citi- zens of the T'nited States; or to deprive them of life, liberty, or property without due pro- cess of law. or to deny to any of them the equal protection of the laws. Tender the thirteenth amendment the legislation, so far as necessary or proper to eradicate all forms and incidents of slavery- and involuntary serv- itude, may be direct and piimary. operating upon the acts of individuals, whether sanc- tioned by state legislation or not; under the fourteenth, as Ave have already shown, it must uec-essarily be. and can only be, cor- rective in its character, addressed to counter- act and afford relief against state regulations or proceedings. The only question under the present head, therefore, is, whether the refusal to any per- sons of the accommodations of an inn, or a public conve.vance, or a place of public amusement, by an individual, and without any sanction or support from an.v state law or regulation, does inflict upon such persons any manner of servitude, or form of slavery, as those terms are understood in this coun- tr.vV 31a ny wrongs may be obnoxious to the prohibitions of the fourteenth amend- ment which are not, in any just sense, inci- dents or elements of slavery. Such, for ex- ample, would be the taking of private prop- erty without due process of law; or allowing persons who have committed certain crimes (horse-stealing, for example) to be seized and hung b.v the posse comitatus without regular trial; or denying to any person, or class of persons, the right to i)ursue an.v peaceful avocations allowed to others. What is call- ed class legislation would belong to this cat- egory, and would oe cbnoxious to the pro- hibitions of the fourteenth amendment, but would not necessaiiiy be so to the thirteenth, when not involving the idea of an.v subjection of one man to another. The thirteenth amendment has respect, not to distinctions of race, or class, or color, but to slavery. The fourteenth amendment extends its pro- tection to races and classes, and prohibits any state legislation which has the effect of denying to any race or class, or to any in- dividual, the equal protection of the laws. Now. conceding, for the sake of the argu- ment, that the admission to an inn. a public conve.vance. or a place of public amusement, on equal terms witn all other citizens, is the right of every man and all classes of men. is it any more than one of those rights which the states b.v the fourteenth amend- ment are forbidden to den.v to any person? and is the constitution violated until the de- nial of the right has some state sanction or authority? Can the act of a mere individ- ual, the owner of the inn, the public convey- ance, or place of amusement, refusing the accommodation, be justly regarded as impos- ing an.v badge of slaveiy or servitude upon the applicant, or onl.v as inflicting an or- dinary civil injury, properly cognizable by the laws of the state, and presumably sub- ject to redress by those laws until the con- trary appears? After giving to these questions all the con- siderations which their importance demands, we are forced to the conclusion that sxich an act of refusal has nothing to do with slavery or involuntary servitude, and that if it is violative of any right of the party, his redress is to be sought under the laws of the state; or, if those laws are adverse to his rights and do uot protect him, his rem- edy will be found in the corrective legisla- EQUAL PKOTECTIOX OF THE LAWS. 183 tion which congress has adopted, or may adopt, for counteracting the effect of state laws, or state action, prohibited by the four- teenth amendment. It would be running tlie slaA'ery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, o as to the people he will take into his coac'i or cab or car. or admit to his concert of theater, or deal with in other matters ol intercourse or business. Innkeepers and public carriers, by the laws of all the states, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unob- jectionable persons who in good faith apply for them. If the laws themselves make any unjust discrimination, amenable to the pro- hibitions of the fourteenth amendment, con- gress has full power to afford a remedy un- CIVJL EIGHTS AND THEIR PROTECTIOX BY THE CONSTITUTIONS. to establish a criminal charge against him, or to forfeit his property, is within the scope of the fourth amendment to the constitution, in all cases in which a search and seizure would be, because it is a material ingredient, and effects the sole object and purpose of search and seizure. The principal question, however, remains to be considered. Is a search and seizure, or, what is equivalent thereto, a compulsoi"j' production of a man's private papei's, to be used in evidence against him in a proceed- ing to forfeit his property for alleged fraud against the revenue laws — is such a proceed- ing for such a puiiwse an "unreasonable search and seizure" within the meaning of the fourth amendment of the constitution? or is it a legitimate proceeding? It is contend- ed by the counsel for the government, that it is a legitimate proceeding, sanctioned by long usage, and the authority of judicial de- cision. No doubt long usage, acquiesced in by the courts, goes a long way to prove that there is some i)lausible ground or reason for it in the law, or in the historical facts which have imposed a particular construction of the law favorable to such usage. It is a maxim that, consuetudo est optimus inter- pres legum; and another maxim that, con- temporanea, expositio est optima et fortis- sima in lege. But we do not find any long usage or any contemporary construction of the constitution, which would justify any of the acts of congress now under considera- tion. As before stated, the act of lSr.;'> was the first act in this country, and we might say, either in this country or in England, so far as we have been able to ascertain, which authorized the search and seizure of a man's private papers, or the compulsoi-y production of them, for the purpose of using them in evidence against him in a criminal case, or in a proceeding to enfoi-ce the forfeiture of his property. Even the act under which the ob- noxious writs of assistance were issued - did not go as far as this, but only authorized the examiuation of shii)s and vessels, and per- sons found therein, for the pui-pose of find- ing goods prohibited to be imported or export- ed, or on which the duties were not paid, and to enter into and search any suspected vaults, cellars, or warehouses for such goods. The search for and seizure of stolen or forfeited gowls. or goods liable to duties and conceal- ed to avoid the payment thereof, are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein con- tained, or of using them as evidence against him. The two things differ toto coelo. In the one case, the government is entitled to the possession of the property; in the other it is not. The seizure of stolen goods is author- ized by the common law; and the seizure of goods forfeited for a breach of the i-evenue 2 13 & 14 Car. II. c. 11, § 5. laws, or concealed to avoid the duties paya- ble on them, has been authorized by English statutes lor at least two centuries past; » and the like seizures have been aufliorized by our own revenue acts from the commence- ment of the government. The first statute passed by congress to reg- ulate the collection of duties, the act of .luly .■>1, 1789, (1 St. 43.) contains provisions to this effect. As this act was passed by the same congress which proposed for adoption the original amendments to the constitution, it is clear that the members of that body did not regard searches and seizures of this kin'here they might be compelled to produce the same by the ordinary rules of proceeding in chan- cery; and if a plaintiff shall fail to comply with such order to produce books or writings it shall be lawful for the courts respectively, on motion, to give the like judgment for the defendant as in cases of nonsuit; and if a defendant shall fail to comply with such or- der to produce books or writings, it shall be lawful for the courts respectively, on mo- tion as aforesaid, to give judgment against him or her by default. "^ The restriction of tliis proceeding to "cases and under circumsiances where they [the parties] might be compelled to produce the same [books or writings] by the ordinary rules of proceeding in chancery," shows the wisdom of the congress of 1789. The court of chancery had for generations been weigh- ing and balancing the rules to be observed in granting discovery on bills filed for that pur- pose, in the endeavor to fix upon such as would best secure the ends of justice. To go beyond the point to which that court had gone may well have been thought hazard- ous. Now it is elementary knowledge that one cardinal rule of tBe court of chancery is never to decree a discovery which might tend to convict the party of a crime, or to forfeit his property, s And any compulsory discovery by extorting the party's oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government It is ab- horrent to the instincts of an Englishman; it is abhorrent to the instincts of an Ameri- can. It may suit the purposes of despotic power, but it cannot abide the pure atmos- phere of political liberty and personal free- dom. It is proper to observe that when the ob- jectionable features ot the acts of 1863 and 1867 were brought to the attention of con- gress it passed an act lo obviate them. By the act of February 25, 1868. (15 St. 37,) enti- tled "An act for the protection in certain cases of persons making disclosures as par- ties, or testifying as witnesses," the sub- stance of which is incorporated in section 860 7 Sixty-two years later a similar act was pass- ed in England, viz.. the act of 14 & 15 Vict. c. 99, § 6. See Poll. Prod. Doc. 5. 8 See Poll. Prod. Doc. 27; 77 Law Lib. 190 CIVIL RIGHTS AND THEIR PROTECTION BY THE CONSTITUTIONS. of the Revised Statutes, it was euacted "that no answer or other pleading of any party, and no discovery, or evidence obtained by means of any judicial proceeding from any party or witness in this or any foreijjn coun- try, shall be given in evidence, or in any manner used against such party or Avitness, or his property or estate, in any court of the T'nited States, or in any proceeding by or before any officer of the United States, in respect to any crime, or for the enforcement of any penalty or forfeiture by reason of any act or omission of such party or wit- ness." This act abrogated and repealed the most objectionable part of the act of 18(;7, (which was then in force.) and deprived the government officers of the convenient meth- od afforded by it for getting evidence in suits of forfeiture; and this is proliably the reason why the fifth section of the act of 1874 was afterwards passed. No doubt it was supposed that in this new form, couch- ed as it was in almost the language of the fifteenth section of the old judiciary act, except leaving out the restriction to cases in whicli the court of chancery would decree a discovery, it would lie free from constitu- tional objection. Btit Ave think it has been made to appear that this result has not been attained; and that the law. though very speciously worded, is still obnoxioiis to the prohibition of the fourth amendment of the constitution, as Avell as of the fifth. It has been thought by some respectable members of the profession that the two acts, that of 18()8 and that of 1874. as being in pari materia, might be construed together so as to restrict the operation of the latter to cases other than those of forfeiture, and that such a construction of the two acts would obviate the necessit.v of declaring the act of 1874 unconstitutional. But as the act of 1874 was intended as a revisory act on the subject of revenue frauds and prosecu- tions therefor, and as it expi'essly repeals the second section of the act of 18(57, but does not repeal the act of 18(i8. and express- ly excepts criminal suits and proceedings, and does not except suits for penalties and forfeitures, it would hardly be admissible to consider the act of 1808 as having any in- rtuence over the construction of the act of 1874. For the purposes of this discussion we must regard the fifth section of the latter act as independent of the act of 18()8. Ke- A-erting, then, to the peculiar phraseology of this act, and to the information in the prc'S- ent case. Avhich is founded on it, Ave have to deal witli an act Avhich expressly excludes criminal proceedings from its operation, (though embi'acing ciAil suits for penalties and forfeitures,) and with an information not technically a criminal proceeding, and neither, therefore, within the literal terms of the fifth amendment to the constitution any more than it is Avithin the literal terms of the fourth Does this relieve the pro- ceedings or the laAV from being obnoxious to the prohibitions of either? We think not; we think they are within the spirit of both. We have already noticed the intimate re- lation betAveen the tAvo amendments. They throw great light on each otlier. For the "unreasonable searches and seizures" con- demned In the fourth amendment are almost alAvays made for the purpose of compelling a man to give evidence against himself, AA'hich in criminal ca.ses is condemned in the fifth amendment; and compelling a man "in a criminal case to be a Avitness against liim- self," Avhich is condemned in the fifth amend- ment, throAVS light on the question as to Avhat is an "unrea tenable search and sei- zure" Avithiu the meaning of the fourth amendment. And Ave have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a AAitness against him- self. We think it is within the clear intent and meaning of those terms. We are also clearly of opinion that proceedings instituted for the purjiose of declaring the forfeiture of a man's property by reason of oft'eiises committed by him. though they may be civil in form, are in their nature criminal. In this A'ei'y case the ground of forfeiture, as declared in the tAvelfth section of the act of 1874, on which the information is based, con- sists of certain acts of fraud committed against the public revenue in relation to im- ported merchandise. Avhich are made criminal by the statute; and it is declared, that the offender shall be fined not exceeding .i;.").(J(K). nor less than ij^oO, or be imprisoned not ex- ceeding tAvo j'ears, or both; and in addition to such fine such merchandise shall be for- feited. These are the penalties afiixed to the criminal acts, the forfeiture sought bj- this suit being one of them. If an indictment luul been presented against the claimants, up- on conviction the forfeiture of the goods could liaA'e been included in the judgment. If the government prosecutor elects to AvaiA'e an indictment, and to file a civil information against the claimants.— that is, civil in form, — can he by this deA'ice take from the pro- ceeding its criminal aspect and deprive the claimants of their immunities as citizens, and extort from them a production of their pri- A-afe papers, or. as an alternative, a confes- sion of guilt"? This cannot be. The informa- tion, though technically a civil proceeding, is in substance and effect a criminal one. As shoAviug the close relation between the civil and criminal proceedings on the same stat- ute in such cases we may refer to the recent case of Coffey v. T^^. S., 116 U. S. 427. Sup Ct 482, in Avliich we decided that an acquittal on a crimi lal information AA-as a good plea in bar +o a civil informa- tion for the forfeiture of goods, arising upon the same acts. As. thei'efore. suits for pen- alties and forfeitures, Incurred by the com- SEARCHES AND SEIZURES. 191 missiou of offenses against the law. are of this quasi criminal nature, we think that they are within the reason of criminal pro- ceedings for all the purposes of the fourth amendment of the constitution, and of that portion of the fifth amendment which de- clares that no person shall be compelled in any criminal case to be a witness against himself; and we are further of opinion that a compulsory production of the private boolis and papers of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself, within the meaning of the fifth amendment to the con- stitution, and is the equivalent of a search and seizure — and an unreasonable search and seizure — within the meaning of the fourth amendment. Though the proceeding in ques- tion is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purix)se. It maj' be that it is the obnoxious thing in its mildest and least repulsive form; but il- legitimate and unconstitutional practices get their first footing in that way, nameljs by si- lent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that con- stitutional provisions for the security of per- son and property should be liberally constru- ed. A close and literal construction deprives them of half their efficacy, and leads to grad- ual depreciation of the right, as if it con- sisted more in sound than in substance. It is the duty of courts to be watchful for the con- stitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis. We have no doubt that the legislative boay is actuated by the same motives; but the vast accumula- tion of public business brought before it sometimes prevents it, on a first presentation, from noticing objections which become de- A^eloped by time and the practical application of the objectionable law. There have been several decisions in the circuit and district courts sustaining the con- stitutionality of the law under consideration, as well as the prior laws of 18(>3 and 1SG7. The principal of these are Stockwell v. U. S.. 3 Cliff". 284, Fed. Cas. No. 13,4GG; In re Piatt, 7 Ben. 2(Jl, Fed. Cas. No. 11.212; U. S. V. Hughes, 12 Blatchf. .'.53. Fed. Cas. No. 15,417; U. S. V. Mason, G Biss. 350, Fed. Cas. No. 15,735; Sam v. Three Tons of Coal, G Biss. 379, Fed. Cas. No. lG,51o; Same v. Dis- tillery No. 28, G Biss. 483, Fed. Cas. No. 14,- itGG. The first and leading case was that of Stockwell V. V. S., decided by Mr. Justice Clifford and Judge Shepley, the law under discussion being that of 18G7. Justice Clif- ford delivered the opinion, and relied princi- pally upon the collection statutes, which au- thorized the seizure of goods liable to duty, as being a contemporaneous exposition of the amendments, and as furnishing precedents of analogous laws to that complained of. As we have already considered the bearing of these laws on the subject of discussion, it is un- necessary to say anything more in relation to them. The learned justice seemed to think that the power to institute such searches and seizures as the act of 1867 authorized, was necessary to the efficient collection of the revenue, and that no greater objection can be taken to a warrant to search for books, in- voices, and other papers appertaining to an il- legal importation than to one authorizing a search for the imported goods; and he con- cluded that, guarded as the new provision is, it is scarcely possible that the citizen can have an7 just ground of complaint. It seems to us that these considerations fail to meet the most serious objections to the validity of the law. The other cases followed that of Stockwell V. U. S. as a precedent, with more or less independent discussion of the subject. The Ca.se of Piatt and Boyd, decided in the district court for the Southern district of New York, was also under the act of 1867, and the opinion in thf^t case is quite an elab- orate one; but, of course, the previous de- cision of the circuit court in the Stockwell Case had a governing infiuence on the district court. The other cases referred to were un- der the fifth section of the a 't of 1874. The case of U. S. v. Hughes came up, first, before Judge Blatchf ord in the district court in 1875. S Ben. 29, Fed. Cas. No. 15,416. It was an action of debt to recover a penalty under the customs act, and the judge held that the fifth section of the act of 1874, in its application to suits for penalties incuired before the pas- sage of the act, was an ex post facto law, and therefore, as to them, was unconstitutional and void; but he granted an order pro forma to produce the books and papers required, in order that the objection might come up on the offer to give them in evidence. They were produced in obedience to the order, and offer- ed in evidence by the district attornej', but were not admitted. The district attorney then served upon one of the defendants a subpoena duces tecum, requiring him to pro- duce the books and papers; and this being declined, he moved for an order to compel him to produce them; but the court refused to make such oider. The books and papers referred to had been se zed under the act of 1SG7, but were returned to the defendants under a stipulation to produce them on the trial. The defendants relied, not only on the unconstitutionality of the laws, but on the act of ISGS, before referred to, which prohib- ited evidence obtained from a party by a ju- dicial proceeding from being used against him in any prosecution for a crime, penalty, or forfeiture. Judgment being rendered for the defendant, the case was carried tn the circuit court by writ of error, and, in tliat court, Mr. Justice Hum held that the act of 18(38 referred only to personal testimony or discov- ery obtained from a party or witness, and not 1^2 CIVIL RIGHTS AND THEIR PROTECTIOX BY THE COXSTITUTIOXS. to books or papers wrested from him; aud, as to the constitutionality of the law, he merely referi'ed to the Case of Stockwell, and the judgment of the district court was revers- ed. In view of what has been already said, ■we think it unnecessary to make any special observatioi^s on this decision. In U. S. v. Ma- sou, .ludge Blodgett took the distinction that, in proceedings in rem for a forfeiture, the parties are not required by a proceeding im- der the act of 1S74 to testify or furnish evi- dence against themselves, because the suit is not against them, but against the property. But where the owner of the property has been admitted as a claimant, we cannot see the force ot this distinction; nor can we as- sent to the proposition that the proceeding is not, in effect, a proceeding against the owner of the property, as well as against the goods; for it is his breach of the laws which has tp be proved to establish the forfeiture, and it is his property which is sought to be forfeited, and to require such an owner to produce his private books and papers in order to prove his breach of the laws, and thus to establish the forfeiture of his property, is sure- ly compelling him to furnish evidence against himself: In the words of a great judge, "Goods, as goods, cannot offend, forfeit, unlade, pay duties, or the like, but men whose goods they are." ^ The only remaining case decided in the United States courts, to which we shall ad- vert, is that of U. S. v. Distillery No. 28. In that case .ludge Gresham adds to the view of Judge Blodgett, in U. S. v. Mason, the fur- ther suggestion, that as in a proceeding in rem the owner is not a party, he might be 9 Vaughan. C. .T., in Sheppard v. Gosnold, Vaughan. 159, 172; approved by Parker, C. B., in Mitchell v. Torup, Parker, 227, 230. compelled Dy a subpoena duces tecum to pro- duce his books aud papers like any other wit- ness; and that the warrant or notice for search aud seizure, under the act of 1874, does nothing more. But we cannot say that we are any better satisfied with this supposed solution of the difficulty. The assumption that the owner may be cited as a Avituess in a proceeding to forfeit his property seems to us gi'atuitors. It begs the question at is- sue. A witness, as well as a party, is pro- tected by the law from being compelled to give evidence that tends to criminate him, or to subject his property to forfeiture. Queen V. Newel, Parker, 209; 1 Greenl. Ev. §§ 4.51- 4.53. But, as before said, although the owner of goods, sought to be forfeited by a proceed- ing in rem, is not the nominal party, he is, nevertheless, the substantial party to the suit; he certainly is so, after making claim and defense; and, in a case like the present, he is entitled to all the privileges which ap- pertain to a person who is prosecuted for a forfeiture of his property by reason of com- mitting a criminal otfeuse. We find nothing in the decisions to change our views in relation to the principal ques- tion at issue. We think that the notice to produce the invoice in this case, the order by virtue of which it was issued, and the law which authorized the order, were unconsti- tutional and void, and that the inspection by the district attorney of said invoice, when produced in obedience to said notice, and its admission in evidence by the court, were er- roneous and unconstitutional proceedings. We are of opinion, therefore, that the judg- ment of the circuit court should be reversed, and the cause remanded, with directions to award a new trial; aud it is so ordered. POLITICAL AXD PUBLIC RIGHTS. 193 ELK V. WILKINS.i (5 Sup, Ct. 41, 112 U. S. 94.) Supreme Court of the United States. Nov. 3, 1884. In error to the circuit court of the United States for the district of Nebraslia. A. J. Poppleton and J. L. Webster, for plaintiff; in error. G. M. Lamberton, for de- fendant in error. GRAY, J. This is an action brought by an Indian, in the circuit court of the United States for the district of Nebrasl^a, against the registrar of one of the wards of the city of Omaha, for refusing to register him as a qualified voter therein. The petition was as follows: "John Elk, plaintiff, complains of Charles Wilkins, defendant, and avei-s that the matter in dispute herein exceeds the sum of five hundred dollars, to-wit, the sum of six thousand dollars, and that the matter in dispute herein arises under the constitution and laws of the United States; and, for cause of action against the defendant, avers that he, the plaintiff, is an Indian, and was born within the United States; that more than one year prior to the grievances hce- inafter complained of he had severed his tri- bal relation to the Indian tribes, and had fully and completely surrendered himself to the jurisdiction of the United States, and still so continues subject to the jurisdiction of the United States; and avers that, under and by virtue of the fourteenth amendment to the constitution of the United States, he is a citizen of the United States, and entitled to the right and privilege of citizens of the United States. That on the sixth day of April, 1880, there was held in the city of Omaha (a city of the first class, incorporated under the general laws of the state of Ne- braska, providing for the incorporation of cit- ies of the first class) a general election for the election of members of the city council and other officers for said city. That the defendant, Charles Wilkins, held the office of and acted as registrar in the Fifth ward of said city, and that as such registrar it was the duty of such defendant to register the names of all persons entitled to exercise the elective franchise in said ward of said city at said general election. That this plain- tiff was a citizen of and had been a bona fide resident of the state of Nebraska for more than six months prior to said sixth day of April, 1880, and had been a bona fide res- ident of Douglas county, wherein the city of Omaha is situate, for more than forty days, and in the Fifth ward of said city more than ten days prior to the said sixth day of April, and was such citizen and resident at the time of said election, and at the time of his attempted registration, as hereinafter set 1 Dissentiog opinion of Mr. Justice Harlan omitted. SMITH.CONST.LAW— 13 forth, ar"' was in evr-y way rualified, under the laws of the state of Nebraska and of the city of Omaha, to be registered as a voter, and to cast a vote at said election, and com- plied with the laws of the city and state in that behalf. That on or about the fifth day of April, 1880, and prior to said election, this plaintiff" presented himself to said Charles Wilkins, as such registrar, at his office, for the purpose of having his name registered a^ a qualified voter, as provided by law, and complied with all the provisions of the stat- utes in that regard, and claimed that, under the fourteenth and fifteenth amendments to the constitution of the United States, he was a citizen of the United States, and was en- titled to exercise the elective franchise, re- gardless of his race and color; and that said Wilkins, designedly, corruptly, willfully, and maliciously, did then and there refuse to regis- ter this plaintiff, for the sole reason that the plaintiff" was an Indian, and therefore not a citizen of the United States, and not, therefore, entitled to vote, and on account of his i*ace and color, and with the willful, malicious, corrupt, and unlawful design to deprive this plaintiff of his right to vote at said election, and of his rights, and all other Indians of their rights, under said fourteenth and fif- teenth amendments to the constitution of the United States, on account of his and their race and color. That on the sixth uay of April this plaintiff presented himself at the place of voting in said ward, and presented a ballot, and requested the right to vote, where said Wilkins, who was then acting as one of the judges of said election in said ward, in further carrying out his willful and malicious designs as aforesaid, aeclared to the plaintiff and to the other election offi- cers that the plaintiff" was an Indian, and not a citizen, and not entitled to vote, and said judges and clerks of election refused to receive the vote of the plaintiff, for that he was not registered as required by law. Plaintiff avers the fact to be that by reason of said willful, unlawful, corrupt, and mali- cious refusal of said defendant to register this plaintiff, as provided by law, he was de- prived of his right to vote at said election, to his damage in the sum of $0,000. AVhere- fore, plaintiff prays judgment against de- fendant for $6,000, his damages, with costs of suit." The defendant filed a general demurrer for the following causes: (1) That the peti- tion did not state facts sufficient to consti- tute a cause of action; (2) that the court had no jurisdiction of the person of the de- fendant; (3) that the court had no jurisdic- tion of the subject of the action. The de- murrer was argued before Judge McCrary and Judge Dundy, and sustained; and, the plaintiff electing to t--tand by his petition, judgment was rendei'ed for the defendant, dismissing the petition, with costs. The plaintiff sued out this writ of error. By the constitution of the state of Nebras- I'M roj.lTICAL AM) IMJliLIC in(JIIT8. ka, art. 7. S 1, "ovcry male pci'soii of the am* of ,t\vc'ut.v-oue years or upwards, hclougin;, to either of the following: chisses, who shall have resided in the state six months, and in the count.v. precinct, or wai-d for the tei-ni jirovided by law, shall be an elector: First, citizens of the United States; sec00, arising under the con- stitution of the T'nited States, the circuit court had jurisdiction of it under the act of March 3, 1875, c. 137. § 1, even if the parties were citizens of the same state. 18 Stat. 470; Ames v. Kansas, 111 \L S. 449. 4 Sup. Ct. 437. The judgment of that court, dis- missing the action with costs, mu.st have pro- ceeded upon the merits, for if the dismissal had been for want of jurisdiction, no costs could have been awarded. ]Mayor v. Cooper, 6 AVall. 247; Mansfield, C. braska and city of Omaha. The petition, while it does not show of what Indian tribe the plaintiff was a member, yet. by the al- legations that he "is an Indian, and was born within the United States." and that "he had severed his tribal relations to the Indian tribes." clearly implies that he was born a member of one of the Indian tribes within the limits of the United States which still exists and is recognized as a tribe by the government of the I'nited States. Though the plaintiff alleges that he "had fully and completely surrendered himself to the juris- diction of the United States." he does not allege that the Ignited States accepted his surrender, or that he has ever been natui-al- ized, or taxed, or in a.iy way recognized or treated a.s a citizen by the state or by the United States. Nor is it contended by his coun.sel that there is any statute or treaty that makes him a citizen. The question then is. whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by rea- son of his birth within the United States, and of his afterwards voluntarily separating himself from his tribe and taking up his res- idence among white citizens, a citizen of the United States, within the meaning of the first section of the fourteenth amendment of the constitution. Under the constitution of the I'niti'd States, as originally established, "Indians not taxed" were excluded from the pei'sons according to whose numbers repre- sentatives and direct taxes \vere apportion- ed among the several states; and congress had and exercised the power to regulate commerce with the Indian tribes, and the members thereof, whether within or without the boundaries of one of the states of the Union. The Indian tribes. l)eing within the teiTitorial limits of the Ignited States, were not. strictly speaking, foreign states; but they were alien nations, distinct political communities, with whom tlie United States might and habitually did deal, as they thought tit, either through treaties made by the president and senate, or through acts of congress in the ordinary forms of legisla- tion. The members of those tribes owed im- mediate allegiance to their several tribes, and were not part of the people of the Unit- ed States. They were in a dependent condi- tion, a state of pupilage, resembling that of a ward to his guardian. Indians and their property, exempt from taxation by treaty or statute of the United States, could not be CITIZENSHIP. 195 taxed by any state. General acts of con- gress did not apply to Indians, unless so ex- pressed as to clearly manifest an intention to include them. Const, art. 1, §§2, 8; art. 2, § 2; Cherokee Nation v. Geox'gia, 5 Pet. 1; Worcester v. Georgia, 6 Pet. 515; U. S. V. Rogers, 4 How. 567; U. S. v. HoUidaj^ 3 WsiU. 407; Case of the Kansas Indians, 5 Wall. 737; Case of the New York Indians, Id. 761; Case of the Chei'okee Tobacco, 11 Wall. 616; U. S. v. Whisky, 93 U. S. 188; Pennock v. Commissioners, 103 U. S. 44; Crow Dog's Case. 109 U. S. 556. 3 Sup. Ct. 396; Goodell v. Jackson, 20 Johns. 693; Hast- ings V. Farmer, 4 N. Y. 293. The alien and dependent condition of the members of the Indian tribes could not be put off at their own will without the action or assent of the United States. They were never deemed citizens of the United States, except under explicit provisions of treaty or statute to that effect, either declaring a cer- tain tribe, or such membei-s of it as chose to remain behind on the removal of the tribe westward, to be citizens, or authorizing in- dividuals of particular tribes to become citi- zens on application to a court of the United States for naturalization and satisfactory proof of fitness for civilized life; for ex- amples of which see treaties in 1817 and 1835 with the Cherokees. and in 1820, 1825, and 1830 with the Choctaws, (7 Stat. 159. 211. 236, 335, 483. 488; Wilson v. Wall, 6 Wall. 83; Opinion of Attorney General Ta- ney, 2 Op. Atty. Gen. 462;) in 1855 with the Wyandotts, (10 Stat. 1159; Karrahoo v. Ad- ams. 1 Dill. 344, 34<3, Fed. Cas. No. 7,614; Gray v. Coffman, 3 Dill. 393, Fed. Cas. No. 5,714; Hicks v. Butrick, 3 Dill. 413, Fed. Cas. No. 6,458;) in 1861 and in March, 1866, Avith the Pottawatomies. (12 Stat. 1192; 14 Stat, 763;) in 1862 with the Ottawas, (12 Stat. 1237;) and the Kickapoos, (13 Stat. 624;) and acts of congress of March 3. 1839, c. 83. § 7. concerning the Brothertown In- dians: and of March 3, 1843, c. 101, § 7, Au- gust 6. 1846, c. 88, and Mai-cfi 3, 1865, c. 127, § 4, concerning the Stockbridge Indians, (5 Stat. 351, 647; 9 Stat. .55; 13 Stat. 562.) See, also, treaties with the Stockbridge Indians in 1848 and 1856. (9 Stat. 955; 11 Stat. 667; 7 Op. Attys. Gen. 746.) Chief Justice Taney, in the passage cited for the plaintiff from his opinion in Scott v. Sandford. 19 How. 393, 404. did not affirm or imply that either the Indian tribes, or in- dividual members of those tribes, had the right, beyond other foreigners, to become citizens of their own will, without being nat- uralized by the United States. His words were: "They" (the Indian tribes) "may with- out doubt, like the subjects of any foreign government, be naturalized by the authority of congress, and become citizens of a state, and of the United States; and if an individ- ual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges Avhich w'ould belong to an emi- grant from any other foreign people." But an emigrant from any foreign state cannot become a citizen of the United States with- out a formal renunciation of his old alle- giance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required by law. The distinction between citizenship by birth and citizenship by naturalization is cleai'ly marked in the provisions of the con- stitution, by which "no person, except a nat- ural-born citizen, or a citizen of the United States at flie time of the adoption of this constitution, shall be eligible to the office of president;" and "the congress shall have power to establish an uniform I'ule of nat- uralization." Const, art. 2, § 1; art. 1, § 8. By the thirteenth amendment of the con- stitution slavery was prohibited. The main object of the opening sentence of the four- teenth amendment was to settle the ques- tion, upon which tliere had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes (Scott V. Sandford. 19 How. 393;) and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized iu the United States, and OAving no allegiance to any alien powei', should be citizens of the United States and of the state in which they reside. Slaughter- House Cases, 16 Wall. 36, 73; Strauder v. West Virginia, 100 U. S. 303, 306. This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the juris- diction thereof." The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the ju- risdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either indiAndually, as by proceedings imder the naturalization acts; or collectively, as by the force of a treaty by which foreign territory is acquired. Indians born within the territorial limits of the Unit- ed States, members of, and owing immediate allegiance to, one of the Indian tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more "born in the United States and subject to the jurisdiction there- of," within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of am- bassadoi-s or other public ministers of foreign 196 POLITICAL AND PUBLIC RIGHTS. nations. Tliis view is confirmed by the second section of tbe t'ourteeutb amendment, wliicb provides tliat '"representatives sliall be ap- portioned among tlie several states according to tlieir respect've numbers, counting the wliole number of persons in each state, ex- cluding Indians not taxed." Slavery having been abolished, and the persons formerly held as slaves made citizens, this clause fix- ing the apportioument of representiitives has abrogated so much of the corresponding clause of the original constitution as counted only three-fifths of such persons. But In- dians not taxed are still excluded from the count, for the re-ison that they are not citi- zens. Their absolute exclusion from the basis of representation, in which all other persons are now included, is wholly incon- sistent with their being considered citizens. So the further provision of the second section for a proportionate reduction of the basis of the representation of any state in which the right to vote for presidential electors, repre- sentatives in congress, or executive or ju- dicial officers or members of the legislature of a state, is denied, except for participation in rebellion or other crime, to "any of the male inhabitants of such state, being twenty-one years of age and citizens of the United States," cannot apply to a denial of the elect- ive franchise to Indians not taxed, who form no part of the people entitled to repre- sentation. It is also worthy of remark that the lan- guage used, about the same time, by the very congress which framed the fourteenth amend- ment, in the first section of the civil rights act ct April 9, 1SG6, declaring who shall be citizens of the United States, is "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed." 14 Stat. 27; Rev. St. § l'J92. Such Indians, then, not being citizens by birth, can only become citizens in the second way men- tioned in the fourteenth amendment, by be- ing "naturalized in the United States," by or under some treaty or statute. The action of the political departments of the government, not only after the proposal of the amend- ment by congress to the states in June. 1866, but since the proclalnation in .luly, 1868, of its ratification by the requisite number of states, accords with this construction. While the amendment was pending before the legis- latures of the several states, treaties contain- ing provisions for the naturalization of mem- bers of Indian tribes as citizens of the United States were made on July 4, 1866, with the Delawares, in 1867 with various tribes in Kansas, and with the Pottawatomies, and in April, 1868, with the Sioux. 14 Stat. 794, 796; 15 Stat. 513, 532, 533, 637. The treaty of 1867 with the Kansas In- dians strikingly illustrates the principle that no one can become a citizen of a nation with- out its consent, and directly contradicts the supposition that a member of an Indian tribe can at will be alternately a citizen of the United States and a member of tbe tribe. That treaty not only provided for the natu- ralization of members of the Ottawa, Miami, Peoria, and other tribes, and their families, upon their making declaration, before the district court of the United States, of their intention to become citizens, (15 Stat. 517, 520, 521,) but, after reciting that some of the Wyandotts, who had become citizens un- der the treaty ot 18.55, were "unfitted for the responsibilities of citizenship," and enacting that a registei- of the whole people of this tribe, resident in Kansas or elsewhere, should be taken, under tbe direction of the secretary of the interior, showing the names of "all who declare their desire to be and remain Indians and in a tribal condition," and of in- competents and orphans as described in tbe treaty of 1855, and that such persons, and those only, should thereafter constitute tbe tribe, it provided that "no one who has here- tofore consented to become a citizen, nor the wife or children of any such person, shall be allowed to become members of the tribe, ex- cept by tbe free consent of the tribe after its new organization, and unless the agent shall certify that such party is, through poverty or incapacity, unfit to continue in the exer- cise of tbe responsibilitips of citizenship of the Unitea States, and likely to become a public charge." 15 Stat. 514, 516. Since the ratification of tbe fourteenth amendment, congress has passed several acts for naturalizing Indians of certain tribes, which would have been superfluous if they were, or might become without any action of tbe government, citizens of tbe United States. By tbe act of July 15, 1870, c. 296, § 10, for instance, it was provided that if at any time thereafter any of tbe Winnebago Indians in tbe state of Minnesota should desire to be- come citizens of the United States, they should make application to the district court of the United States for tbe district of Minne- sota, and in open court make the same proof, and take tbe same oath of allegiance as is provided by law for tbe naturalization of aliens, and should also make proof, to the satisfaction of the court, that they were suffi- ciently intelligent and prudent to control their affairs and interests, that they bad adopted the habits of civilized life, and had for at least five years before been able to support themselves and their families; and thereup- on they should be declared by the court to be citizens of tbe United States, tbe declaration entered of record, and a certificate thereof given to tbe applicant; and tbe secretary of the interior, upon presentation of that cer- tificate, might issue to them patents in fee- simple, with power of alienation, of the lands already held by them in severally, and might cause to be paid to them their proportion of the money and eft'-^cts of the tribe held in trust under any treaty or law of tbe United States, and thereupon such persons should cease to be members of tbe tribe; and tbe lands so patented to them should be subject CITIZENS HIP. 197 to levy, taxation, and sale in like manner with the property of other citizens. 16 Stat. 361. By the act of March 3, 1873, c. 332, § 3, similar provision was made for the nat- uralization of any adult members of the Miami tribe in Kansas, and of their minor children. 17 Stat. 632. And the act of March 3, 1865, c. 127, before referred to, mak- ing corresponding provision for the natural- ization of any of the chiefs, warriors, or heads of families of the Stockbridge Indians, is re-enacted in section 2312 of the Revised Statutes. The act of January 25, 1871, c. 38, for the relief of the Stockbridge and Munsee Indians in the state of Wisconsin, provided that '"for the purpose of determining the persons who are members of said tribes, and the future relation of each to the government of the United States," two rolls should be prepar- ed under the direction of the commissioner of Indian affairs, signed by the sachem and councilors of the tribe, certified by the per- son selected by the commissioner to superin- tend the same, and returned to the commis- sioner; the one, to be denominated the cit- izen roll, of the names of all such persons of full age, and their families, "as signify their desire to separate their relations with said tribe and to become citizens of the United States," and the other to be denominated the Indian roll, of the names of all such "as de- sire to retain their tribal character and con- tinue under the care and guardianship of the United States;" and that those rolls, so made and returned, should be held as a full sur- render and reliuquis.hment, on the pari; of all those of the first class, of all claiius to be known or considered as members of the tribe, or to be interested in any provision made or to be made by the United States for its ben- efit, "and they and their descendants shall thenceforth be admitted to all the rights and privileges of citizens of the United States."' 16 Stat. 406. The pension act exempts Indian claimants of pensions for service in the army or navy from the obligation to take the oath to sup- port the constitution of the United States. Act of March 3, 18'. 3, c. 234, § 28, (17 Stat. 574; Rev. St. § 4721.) The recent statutes concerning homesteads are quite inconsist- ent with the theory that Indians do or can make themselves independent citizens by liv- ing apart from their tribe. The act of March 3. 187.5, c. 131, § 15, allowed to "any Indian born in the United States, who is the head of a family, or who has arrived at tlie age of twenty-one years, and who has abandon- ed, or may hereafter abandon, his tribal rela- tions," the benefit of the homestead acts, but only upon condition of his "making satisfac- tory proof of such abandonment, under rules to be prescribed by the secretary of the in- terior;" and further provided that his title in the homestead should be absolutely in- alienable for five years from the date of the patent, and that he should be entitled to share in all annuities, tribal funds, lands, and other property, as if he had maintained his tribal relations. 18 Stat. 420. And the act of March 3, 1884, c 180, § 1, while it allows Indians "located on public lands" to "avail themselves of the homestead laws as fully, and to the same extent, as may now be done by citizens of the United States," provides that the form and the legal effect of the pat- ent shall be that the United States does and will hold the land for twenty-five years in trust for the Indian making the entry, and his widow and heirs, and will then convey it in fee to him or them 23 Stat. 96. The national legislation has tended more and more towards the education and civilization of the Indians, and fitting them to be cit- izens. But the question whether any Indian tribes, or any members thereof, have become so far advanced in civilization that they should be let out of the state of pupilage, and admitted to the privileges and responsi- bilities of citizenship, is a question to be de- cided by the nation whose wards they are and whose citizens they seek to become, and not by each Indian for himself. There is nothing in the statutes or decisions, refeiTed to by counsel, to control the conclusion to which we have been brought by a considera- tion of the language o.f the fourteenth amend- ment, and of the condition of the Indians at the time of its px'oposal and ratification. The act of July 27, 1868, c. 249, declaring the right of expatriation to be a natural and inherent right of all people, and reciting that "in the recognition of this principle this government has freely received emigrants from all nations, and invested them with the rights of citizensnip," while it affirms the right of every man to expatriate himself from one country, contains nothing to enable him to become a citizen of another without being naturalized under its authority. 15 St. 223; Rev. St. § 1999. The provision of the act of congress of March 3, 1871, c. 120, that "hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty," is coupled with a provision that the obligation of any treaty already lawfully made is not to be thereby invalidated or im- paired; and its utmost possible effect is to require the Indian tribes to be dealt with for the future through the legislative and not through the treaty-making power. 16 St. 566; Rev. St. § 2079. In the case of U. S. v. Elm, 23 Int. Rev. Rec. 419, decided by Judge Wallace in the district court of the United States for the Northern district of New York, the Indian who was held to have a right to vote in 1876 was born in the state of New York, one of the remnants of a tribe which had ceased to exist as a tribe in that state; and by a stat- ute of the state it had been enacted thjii I any native Indian might purchase, take, hold, l'J'8 rOLITICAL AND PUHLIC RIGHTS. and convey lands, and. whenover he should have become a freeholder to the value of $100, should be liable to taxation, and to the civil .iurisdlction ot the courts, in the same manner and to the same extent as a citizen. N. Y St 1848 c. 87. The condi- tion of the tribe trom which he derived his orijjin, so far as any fragments of it re- mained within the state of New Yoi'k. re- sembled the condition of those Indian na- tions of which Mr. .Tusiice Johnson said in Fletcher v. Peck, tranth, 87, 140, tliat they ■"have totally extinjjnislied their national tire, and submitted themselves to the laws of the states;" and which Mr. Justice McLean had in view when he oljsei ved in Worcester v. Oeorjria, G Pet. 51"), r)80, that in some of the old states "whei'e small remnants of tribes remain, surrounded b.v white population, and Avho, by their redtn ed numliers, had lost the power of self-government, the laws of th<> state have been extended over them, for the protection of tl)eir i)ersons and pi-operty." See, also, as to the condition of Indians in Massa<-husetts, remnants of tribes never rec- <>.irnized by the treaties or legislative or ex- «'cutive acts of tht United States as distinct political communities, Danzell v. Webquish, 108 :Mas.s i:}:*,; Pells v. Welxiuish. 120 Mass. 4(>0; Mass. St. 1862, c. 184; 1800, c. 4(!3. The pas.«ages cited as favorable to the plaintiff, from the opinions delivered in Ex parte Kenyon, .1 Dill. 885, ;>90. Fed. Cas. Xo. 7,720, in Ex parte Tie} iiolds, 5 Dill. 304, 897. Fed. Cas. No. 11.710, and in U. S. v. Crook. 5 Dill. 453, 404, Fed. Cas. No. 14,891, were obiter dicta. The Case of Re.vnolds was an indictment, in the circuit court of the T'nited States for the Westtrn district of Arkan.sas, for a murder in the Indian country, of which that coiut had .iurisdictiou if either the ac- cused or tli(> dead man was not an Indian, and was decided by Judge Parker in favor of the jurisdiction, upon the ground that l>oth were white men, and that, conceding the one to be an Indian by marriage, the other never was an Indian in an.v sense. 5 Dill. 897. 404. Each of the other two eases was a v.rit of habeas corpus; and any per- son, Avhether a citizen or not. unlawfully re- strained of his libeity, is entitled to that writ. Case of the Hottentot Venus, 18 East, 195; Case of Dos Santos 2 Brock. 498, Fed. Cas. No. 4,010, In re Kaine, 14 How. 103. In Ken.von's Case Judge Parker held that the court in which The pi'isoner had been convicted had no jurisdiction of the subject- matter, because the place of the commission of the act was beyond the territorial limits of its jurisdiction, and, as was trulv said. "this alone would be conclusive of this case." 5 Dill. 390, Fed. Cas. No. 7,720. In U. S. V. Crook, the Ponca Indians were discharge Sawy. 40t;, 409, 2 Fed. 58. Upon the question whether an\ action of a state caiv confer rights of citizenship on Indians of a tribe still recognized by the T/nited States as retaining its tribal exif-lence. we need not, and do not, expres- an ooinion, becau.se the state of Nebniska is not shown to have taken any action affecting the condition of this plaintiff. See Chirac ■ . Chirac, 2 Wheat. 259; Fellows v Blacksmith, 19 How. 8(50; U. S. V. Holliday. b Wall. 407, 420; U. S. v. Joseph. 94 U. S. G14. 018. The plaintiff, not being a citizen of the United States under the fourteenth amendment of the constitu- tion, has been deprived of no right secured by the fifteenth amendment, and cannot maintain this action. Judgment affirmed. Mr. Justice HARLAN and Mr. Justice WOODS, dissen . COXSTITUTIOXAL GUAllAXTIE-; IX CRIMINAL CASE>. 199 BKOWN V. WALKER, United States Marshal. 1 (70 Fed. 46.) Oircuit Court, W. D. Pennsylvania. Sept. 11, 1895. Before ACHESON. Circuit Jud^e. and BUFFINGTON, District Judge. Scott & Gordon, for petitioner. Harry Al- yan Hall, for U. S. marshal. BUFFINGTON, District Judge. On May <5, 189."). the grand jury of the district court of the United States for the Western dis- trict of Penns.ylvania had under considera- tion an indictment charging E. F. Bates and Thomas R. Robinson, officers and agents of the Allegheny Valley Railway Company, with alleged violations of the interstate com- merce law, approved February 4, 18S7, and its supplements. Theodore F. Brown, the petitioner, who is the auditor of said com- pany, appearad before the grand jury upon subpoena. He declined to answer certain 'questions as to freight charged and rebates given by said road as follows: "Q. Have you audited the accounts of the freight de- l)artment of the said i-ailway company dur- ing the years 1894 and 1895? A. I have. Q. Do you know whether or not the Allegheny Valley Railway Company transported for the Union Coal Company, during the months of July, August, and September, 1894, coal from any points on the low-grade division of said railroad company to Buffalo at a less rate than the established rates in force between the terminal points at the time of such trans- portation? A. That question, with all re- spect to the grand jury and yourself, I must decline to answer, for the reason that my answer would tend to accuse and criminate me. Q. Do you know whether the Alle- gheny Valley Railway Company, during the year 1894, i)aid to the Union Coal Company any rebate, refund, or commission on coal transported by said railroad company fi'om points on its low-grade division to Buffalo, whereby the Union Coal Coiupany obtained a transportation of such coal between the said terminal points at a less rate than the open tariff rate, or the rate established by said company? If you have such knowledge, state the amount of such rebates or draw- backs or commissions paid, to whom paid, the date of the same, or on what shipments, and state fully all the particulars witliiu your knowledge relating to such transaction or transactions. A. That question I must also decline to answer for the reasons al- ready given." Upon report of these facts made by the grand jury through George D. Plowell, Esq.. its foreman, tlie district court granted a rule upon Mr. Brown to show cause why he should not answer the questions or be ad- judged guilty of contempt. He again re- 1 Concurring opinion of Acheson, Circuit Judge, omitted. fused for the same reasons, and on report thereof made to the court, he was by it ad- judged guilty of contempt, sentenced to pay a fine, and committed to the custody of the marshal until he paid the same and answer- ed the questions. On May 7, 1895, he pre- sented a petition to the circuit court for a writ of habeas corpus. In it, after setting forth the above facts, he alleged his answers would tend to incriminate him, and if com- pelled to answer, he woidd be forced to be a witness against himself, contrary to tne provisions of the amendment to the consti- tution; that the act compelling him to testi- fy was unconstitutional; that the district court had no jurisdiction to I'equire him to answer these questions; and that his deten- tion by the marshal was unJawful. There- upon the writ issued, and to it the mai'shal made return justifying petitioner's detention under the order of the district court. The fifth amendment to the constitution provides: "No person * * * shall be com- pelled, in any criminal case, to be a witness against himself." And in Counselman v. Hitchcock. 142 U. S. 547. 12 Sup. Ct. 195, it was held this provision was not confined to a criminal case against the party himself; that its object was to insure that one should not be eompelled. when acting as a witness in any investigation, to give testimony which might tend to show he had committed a crime. It was also held that Rev. St. § 801), which provides that no evidence given by a Avitness shall be in any manner used against him in any court of the United States in any criminal proceedings did "not supply a com- plete protection from all the perils against which the constitutional prohibition was de- signed to guard, and is not a full substitu- tion for that prohibition," and afforded "no protection against that use of compelled tes- timony which consists in gaining therefrom a knowledge of the details of a crime, and of souices of information which may sxq>ply other means of convieting the witness or part,v." Following this decision, the act of Febru- ary 11. 1893. was passed, which provides: "That no person shall be excused from at- tending and testifying * * * in any cause or proceeding, criminal or otherwise, based upon ()7' growing out of any alleged viola- tion of the act of congress, entitled 'An act to regulate commerce,' approved February fourth, eighteen hundred and eighty-seven, or of any amendment thereof, on the ground 01- for the reason that the testimony or evi- dence, documentary or otherwise, required of him, may tend to criminate him or sub- ject him to a penalty or forfeiture. But no person shall be pi'osecuted n- subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concern- ing which he may testify, or produce evi- dence, documentary or otherwise * * * jq any such case or proceeding." The constitutionality of this act is now 200 CONSTITUTIONAL GUARANTIES IN CRIMINAL CASES. challenged ou the ground— First, that the constitutional provision already quoted is a protection not only from pains and penalties, but from the infamy which follows the dis- closure of the commission of a crime, and that the act simply relieves from pains and penalties; second, that the act does not give a protection as broad as the constitutional privileges, because it places the witness un- der the necessity of proving the fact, etc., of his having been called to testify, and leaves him exposed to the jeopardy of con- viction; and, third, the act is in substance a pardon and an infringement on the par- doning power vested by the constitution in the executive. The question is one of grave importance to the petitioner, as involving his alleged con- stitutional rights, and to the general public, as involving the enforcement of the inter- state commerce law. It is cleai", if the wit- ness is justified in his refusal to answer, the enforcement of that law is virtually im- possible, since violations thereof can be prov- ed only by those who woxild refuse to an- swer. Unfortunate as this might be, still, if the enforcement of any act of congress sacrifices the constitutional rights of the cit- izen, the act must yield to the higher law of the constitution. But when a statute has been passed by the legislative branch of the government, the judicial branch will act with great caution in declaring it unconstitution- al, and will do so "only," as Chief Justice Black said, in Sharpless v. Mayor, etc., of Pliiladelphia. 21 Pa. St. 164, "when it vio- lates the constitution clearly, palpably, plain- ly, and in such manner as to leave no doubt or hesitation on our minds." For, as Chief Justice Marshall said, in Fletcher v. Peck, G Cranch, 126: "The question, whether a law be void for its repugnancy to the constitu- tion is, at all times, a question of much del- icacy, which ought seldom, if ever, to be de- cided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague con- jecture that the legislature is to be pronoun- ced to have transcended its powers, and its acts to be considered as void. The opposi- tion between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibil- ity with each other." The provision that "no person * * * shall be compelled in anv criminal case to be a witness against himself" placed the bulwark of constitutional protection around that which had long been a recognized right of the citizen under the rules of evidence, and was summed up in the time-honored maxim, "Nemo tenetur seipsum accusare." 1 Starkie, Ev. 71, 191; 1 Greenl. Ev. § 451; Whart. Cr. Ev. § 463, and cases cited on page 547 of 142 U. S., and page 195 of 12 Sup. Ct. It was meant to protect him from self-crimination, to exempt him from making disclosures v.'hich might lead to his subse- quent conviction. It was embodied in an amendment which, in its other provisions, secured his rights in criminal cases, viz. the safeguard of a precedent indictment or pre- sentment, — against his being put twice in jeopardy for the same offense,— and insured him due process of law when life and lib- erty were at stake. Clearly, its purpose was to shield him from compulsory disclosures which might lead to his conviction of a crime. If the constitutional purpose was to shield him from disclosures which would merely tend to humiliate or disgrace him in the eyes of his fellows, it was not so expressed. Judging from the character of the instru- ment itself, which is admittedly a model of simplicity and clearness, it is fair to assume that if such a right were deemed worthy of the dignity of constitutional protection, it would have been stated in words so plain "that he may run that readeth it." But the obligation of a witness to answer questions of that character, if pertinent to the issue, is well recognized. 1 Rose. Cr. Ev. 234; 1 Greenl. Ev. (14th Ed.) §§ 455, 4.56, 458, 4.59; Thomp. Trials, § 287; Jennings v. Prentice, 39 Mich. 421. And in Parkhurst v. Lowten, 1 Mer. 400, Lord Eldon said: "Upon the question of character, I hold that, supposing a man to be liable to penalty or forfeiture, provided he is sued within a limited time, and that the suit is not commenced till after the limitation expired, he is bound to answer fully, notv.'ithstanding his answer may tend to cast a very great degree of reflection up- on his character and conduct." In Com. V. Roberts, Brightly, N. P. 109, it was held it was competent for the legisla- ture of Pennsylvania to pass an act under which a witness may be compelled to answer questions which may not show him to be criminal, but which involve him in shame and reproach. To our mind it is clear the infamy or dis- grace to a witness which may result from disclosures made by him are not matters against which the constitution shields, and that so long as such disclosures do not con- cern a crime of which he may be convicted, the provision quoted does not apply. But does the act of congress give the petitioner as broad protection as the constitutional pro- vision? Unquestionably it does. It says he "shall not be prosecuted or subjected to any penalty or forfeiture tor or on account of any transaction, matter or thing, concerning which he may testify or produce evidence, documentary or otherwise." This affords him absolute indemnity against future pi'os- ecution for the offense to which the ques- tion relates. The act of testifying has, so far as he is concerned, wiped out the crime. It has excepted him from the operation of the law, and. as to him, that which in others is a crime has been expunged from the slat- PRIVILEGE AGAINST SELF-CRIMIXATING EVIDEKCE. mi ute books. If, then, there exists, as to him, no crime, there can be no self-crimination in any testimony he gives, and if there can be no self-crimination, if neither conviction, judgment, nor sentence can directly or in- directly result from his testimony, what need has he for the constitutional provision? For, says Broom (Leg. Max. p. 654), in speaking of the maxim quoted above, "Where, how- ever, the reason for the privilege of the wit- ness or party interrogated ceases, the priv- ilege will cease also; as, if the prosecution to which the witness might be exposed on his liability to a penalty or forfeiture is barred by lapse of time, or if the offense has been pardoned, or the penalty or forfeiture waived,"— a doctrine approved, as we have seen above, by Lord Eldon. In practical effect, the legislative act throws a greater safeguard around the peti- tioner than the constitutional provision. Be- fore he testified, he could have been charged with a violation of the interstate commerce law, in which case the amendments only pro- tected him against compulsory self-crimina- tion. He was liable to a possible verdict of guilty if the necessary proofs were given, but under the legislative act, when he has testified the law excepts him from its opera- tion, makes that which was before a possible crime a mere mattei of indifference, and shields him from subsequent prosecution. The sweeping words of the statute,— as broad as human language can make them, — afford ab- solute indemnity to the witness. No crime ex- ists as to him. It is not a pardon,— not an act: of amnesty. No charge can be made against him, for it is illegal to even prosecute him, viz. "No person shall be prosecuted." To our mind, the constitutional provision in words and purpose is plain. In the Counselman Case, the witness was protected from the manifestly self-criminating answers which: would have disclosed facts upon which a prosecution, to which he was still left ex- posed, could be based. But, owing to the act of 1893, no such consequence can ensue if the present petitioner is made to ansv»'er. Such being the case, the constitutional pro- vision does not concern him, and if it does not, the act which compels him to testify is not unconstitutional. In reaching this conclusion we have given due regard to the case of U. S. v. James, 60 Fed. 257, where the act »vas held to be un- constitutional. While we regret to differ- from this only federal decision on the mat- ter, we find support for our position in the opinion of the supreme court of New Hamp- shire, in State v. Nowell. 58 N. H. 314, and of the supreme court of California in Ex parte Cohen (Cal.) 38 Pac. 364. The prayer of the petitioner to be dischar- ged will therefore be denied, and he will be remanded to the custody of the marshal. ACHE SON, Circuit Judge, concurs. * * * * * *^ ft: 202 LAWS IMPAIRING THE OBLIGATIOX OF CONTRACTS. TKUSTKES OF DARTMOUTH COELEGP: V. WOODWARD. 1 (4 Wheat. 518.) Suiii'cmt' Court of the FnitoJ States. Term, 1811t. Feb. Error to the superior oourt i>f the stale of New Ilninpshhc. This Avas an action of trover instituted in a court of the state of Nev.- Ilaninsliiie by the trustees of Dartnioutli College auainst William AV. WoodAvanl. There was a .judg- ment for defendant which was attirmeil by the superior coui't of the state of New Hamp- shii'e and plaintiffs broujiht error. Reversed. Webster ^ Hopkinson. for ])laintiffs in er- roi'. Mr. Holmes and The A1torney-(!(Mieral. contra. Mr. Chief .Tusti<-c MARSHALL delivered the opinion of tin- court. This is an action of trover, bronjiht by the trustees of Dartmouth Collejje, ajjainst Wil- liam H. Woodward, in the state court of New Hampshire, for the book of records, corporate seal, and other corporate property, to which the plaintiffs allege themselves to be entitled. A special verdict, after setting out the rights of the parties, finds for the defend- ant, if certain acts of the legislature of NeAV Hami)shirt\ passed on the 27th of .Ttine. and on th(^ bSth of Decembf-r. 18"l(^ be valid, and l)inding on the trustees without their assent, and not repugnant to the constitution of the I'nited States; otlierwise it finds for the ])laintiffs. The superior court of judicature of New Ham]ishire rend(>i'ed a judgment upon this verdict for the defendant, which judgment has been brought before this cotul by writ of error. The single question now to be <-onsidered is, do the acts to whicli the ver- dict refers violate the constitution of the Finted States'.' This coiu't c;in be insensible iieiTlier to tlie magnitude nor delicacy of this (luestion. The A'alidity of a legislative act is to be ex- amined; and the opinion of the highest law tribunal of a state is to be revised; an opin- ion which carries Avith it intrinsic evidence of the diligence, of the ability, and the in- t(>grity with which it was formed. On more than one occasion this coiu't has exijressed the cautious circumspection with which it approaches the consideration of such ques- tions; and has declared that, in no doubtful case. Avottld it pronounce a legislative act to be contrar.v to the constitution. But the American peojile have .said, in the constitu- tion of the I'nited States, that "no state shall pass any bill of .-ittainder, ex post facto law, 1 Concurring opinions of Mr. .Tiistice Washing- ton and Mr. Justice Story, ami (iissciiting opin- ion of Mr. Justice Duvall, omitted. or law impairing the obligation of contracts." In the same instrument they have also said, "that the judicial power shall extend to all cases in law and eqtiity arising under the con- stitution." On the jttdges of this court, then, is imposed the high and solemn duty of pro- tecting, from even legislative violation, those contracts Avliich tlie constitution of our coini- try has pla<'ed beyond legislative control; and. however irksome the task nuiy be, this is a duty from which we dare not shrink. The title of the plaintiffs originates iu a charter, dated the 13th day of December, in the year 17G9, incorporating twelve persons therein mentioned, by the name of "The Trustees of Dartmouth College," granting to them and their successors the tisnal cor- porate privileges and powers, and authoriz- ing the trustees. Avho are to govern the col- lege, to fill up all vacancies which may be created in their own body. The defendant claims under three acts of the legislature of NeAV Hampshire, the most material of which aacIS passed on the 27th of June. ISIO. and is entitled, "An act to amend the charter, and enlarge and imi)rove the corpoi'ation of Dartmouth College." Among other alterations in the charter, this act in- creases the iuind)er of trustees to twenty- one, gives the appointment of the additional members to the executive of the state, and creates a board of oA'erseers. Avith poAA'er to inspect and control the most important acts of the trustees. This board consists of tAA'cnty-five persons. The president of the sncourage the laudable and charitable de- sign of spreading ('hristian knowledge among the savages of our American wilderness, and, also, that the best means of education be established, in our province of New Hamp- shire, for the benefit of said province, do. of our special grace,"' &c. Do these expres- sions bestow on New Ham]>shire any exclu- sive right to the property of the college, any exclusive interest in the labors of the pro- fessors? Or do they merely indicate a will- ingness that New Hampshire should enjoy those advantages which result to all from the establishment of' a seminary of learn- ing in the neighborhood? On this point we think it impossible to entertain a seriovis doubt. The words themselves, unexplained by the context, indicate, that the "benefit in- tended for the province" is that which is de- rived from "establishing the best means of education therein;" that i.s, from establish- ing in the province Dartmouth College, as constituted by the charter. But if these words, considered alone, could admit of doubt, that doubt is completely removed by an inspection of the entire instrument. The ]iarticular interests of New Hamp- shire never entered into the mind of the donors, never constituted a motive for their donation. The propagation of the Christian religion among the savages, and the dissem- ination of useful knowledge among the youth of the country, were the avowed and the sole objects of their contributions. In these, NeAV Hampshire would participate; but nothing particular or exclusive was intend- ed for her. Even the site of the college was selected, not for the sake of New Hamp- shire, but because it was "most subservient to the great ends in Aiew," and because lib- eral donations of land were offered by the proprietors, on condition that the institution should be there established. The real ad- vantages from the location of the college, are, perhaps, not less considerable to those on the west, than to those on the east side of Connecticut riA'er. The clause which eou- stitules the incorporation, and expresses the objects for Avhich it Avas made, declares those objects to be the instruction of the Indians, "and also of English youth, and any others." So that the objects of the con- tributors, and the incorporating act, were the same: the promotion of Christianity, and of education generally, not the interests of New Hampshire particularly. From this review of the charter, it ai)- l)ears, that Dartmouth Coll«»ge is an elee- mosynary institution, incorporated for the imrpose of perpetuating the application of the bounty of the donors, to the specified ob- jects of that bounty; that its trustees or gov- ernors Mere originally named by the foiind- er, and invested with the power of perpet- uating themselves; that they are not pul)lic otHcers, nor is it a civil institution, partici- pating in the administration of government; but a charity school, or a seminary of edu- i-ation, incorporated for the preservation of its property, and the perpetual application of that property to the objects of its crea- tion. Yet a question remains to be considered, of more real difficulty, on which more doubl has been entertained than on all that have been discussed. The founders of the college, at least those whose contributions were in money, have parted with the property be- stowed upon it. and their representatives liaAe no interest in that property. The do- nors of land are equally without interest, so long as the cor])oration shall exist. Coidd they be found, they are unaffected by any alteration in its constitution, and probably i-egardless of its form, oi" even of its exist- ence. The students are fiuctuating, and no individual among our youth has a vested in- terest in the institution, which can be as- serted in a court of justice. Neither the founders of the college, nor the youth for whose benefit it was founded, complain of the alteration made in its charter, or think themselves injured by it. The trustees alone complain, and the trustees have no benefi- cial int<»rest to be protected. Can this be sucii a contract as the constitution intended to withdraw from the power of state legis- lation? Contracts, the parties to which have a vested beneticial interest, and those only, it has been said, are the objects about which the constitution is soli<-itous, and to which its pi-otection is extended. The court has bestowed on this argument the most deliberate consideration, and the ClIARTEllS AS CO]S^TRACTS. 207 result will be stated. Dr. Wlioelock. acting loi- liiinself, and for those who, at his solici- tation, had made contributions to his scliool, applied for this charter, as the instrument which should enable him and them to per- petuate their beuefleent intention. It was granted. An artificial, immortal being, was created by the crown, capable of receiving and distributing forever, according to the will of the donors, tlie donations which should be made to it. On this being, the contributions which had been collected were immediately bestowed. These gifts were made, not in- deed to mali;e a profit for the donors or their posterity, but for something in their opinion' of inestimable value; for something which they deemed a full equivalent for the money with ^Ahich it was purchased. The consider- ation for which they stipulated, is the per- petual application of the fund to its object, in the mode prescribed by themselves. Their descendants may take no interest in the pres- ervation of this consideration. But in this respect their descendants are not their rep- resentatives. They are represented by the corporation. The corporation is the assignee of their rights, stands in their place, and distributes their bounty, as they would themselves have distributed it, had they been immortal. So witli respect to the stu- dents who are to derive learning from this source. The corporation is a trustee for them also. Their potential rights, wliich, taken distributively, are imperceptible, amoTint, collectively, to a most important in- terest. These are, in the aggregate, to be exercised, asserted, and protected, by the corporation. They were as completely out of the donors, at the instant of their being vest- ed in the corporation, and as incapable of being asserted by tlie students, as at pres- ent. According to the theory of the British con- stitution, their parliament is omnipotent. To annul corporate rights might give a shock to public opinion, which that government has chosen to avoid; but its power is not ques- tioned. Had parliament, immediately after the emanation of this charter, and the ex- ecution of those conveyances which follow- ed it, annulled the instrument, so that the living donors would have witnessed the dis- appointment of their hopes, the perfidy of the transaction Avould have been universally acknowledged. Yet then, as now, the do- nors would have had no interest in the prop- erty; then, as now, those Avho might be students would have had no rights to be vio- lated; then, as now, it might be said, that the trustees, in whom the rights of all were combined, possessed no private, individual, beneficial intei-est in the property cpnfided to their protection. Yet the contract would at that time have been deemed sacred by all. What has since occurred to strip it of its inviolability? Circumstances have not chan- ged it. In reason, in justice, and in law, it is now what it was in 17G9. This is plainly a contract to Avhich the donors, the trustees, and the crown, (to whose rights and obligations New Hampshire suc- ceeds.) were the original parties. It is a contract made on a valuable consideration. It is a contract for the security and disposi- tion of property. It is a contract, on the I faith of Avhich, real and personal estate has j been conveyed to the corporation. It is then a contract within the letter of the constitu- j tion, and within its spirit also, unless the i fact that the property is invested by the j donors in trustees, for the promotion of re- ligion and education, for the benefit of per- sons who are perpetually changing, though the objects remain the same, shall create a particular exception, taking this case out of the prohibition contained in the constitution. It is more than possible that the preserva- tion of rights of this description was not particularly in the view of the framers of the constitution, when the clause under con- sideration was introduced into that instru- ment. It is probable that interferences of more frequent recurrence, towhich the temp- tation was stronger, and of which the mis- chief was more extensive, constituted the great motive for imposing this restriction on the state legislatures. But althougli a par- ticular and a rare case may not, in itself, be of sufficient magnitude to induce a rule, yet it must be governed by the rule, when estal)- lished, unless some plain and strong reasoit for excluding it can be given. It is not enough to say, that this particular case was not in the mind of the convention, when the article was framed, nor of the American peo- ple, when it was adopted. It is necessary to go furtlier, and to say that, had this par- ticular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special excep- tion. The case being within the words of the rule, must be within its operation like- wise, unless there be something in the lit- eral construction so oliviously absurd or mis- chievous, or repugnant to the general spirit of the instrument, as to justify those who expound the constitution in making it an ex- ception. On what safe and intelligil)le ground can this exception stand? Tliere is no expres- sion in the constitution, no sentiment de- livered by its contemporaneous expounders, which would justify us in making it. In the absence of all authority of this kind, is there, in the nature and reason of the case itself, that which would sustain a construc- tion of the constitution, not warranted by its words? Are conti-acts of this description of a character to excite so little interest, that we mixst exclude them from the provisions of the constitution, as being unworthy of the attention of those wlio framed the instru- ment? Or does piiblic policy so imperiously demand their remaining exposed to legisla- tive alteration, as to compel us, or i-ather permit us to say, that these words, Avhich 208 LA^^S IMPAIKING THE OBLIGATION OF CONTRACTS. were introduced to give stability to con- tracts, and whicli, in tlieir plain import, conipreliend this contract, must yet be so construed as to exchide it? Almost all eleemosynary corporations, those which are created for the promotion of religion, of cliarity, or of education, ai"e of the same character. The law of this case is the law of all. In evei-y literary or char- itable institution, unless the objects of the bounty be themselves incorporated, the Avhole legal interest is in trustees, and can be asserted only by them. The donors, or claimants of the bounty, if they can appear in court at all, can appear only to complain of the trustees. In all other situations, they are identified Avith, and personated by, the trustees; and their rights are to be defended and maintained by them. Religion, charity, and education, are, in the law of England, legatees or donees, capable of receiving be- quests or donations in tliis form. They ap- pear in court, and claim or defend by the corporation. Are tliey of so little estima- tion in the United States, that contracts for their benefit must be excluded from the pro- tection of words Avhich, in their natural im- port, include them? Or do such contracts so necessarily require new modelling, by the authority of the legislature, that the or- dinary rules of construction must be disre- garded in order to leave them exposed to leg- islative alteration? All feel that these objects are not deemed unimportant in the United States. The in- terest which this case has excited, proves that they are not. The framers of the con- stitution did not deem them unworthy of its care and protection. They have, though in a different mode, manifested their respect for science, by reserving to tlie government of the Union the power "to promote the progress of science and useful arts, by se- curing, for limited times, to authors and in- ventors, the exclusive right to their respec- tive writings and discoveries." They have, so far, withdrawn science and the useful arts, from the action of the state govern- ments. Wliy, tlien, should they be supposed regardless of contracts made for the advance- ment of literature, as to intend to exclude them from provisions, made for the security of ordinary contracts between man and man? No reason for making this supposition is per- ceived. If tlie insignificance of the object does not require that we should exclude contracts re- specting it from the protection of the consti- tution, neither, as we conceive, is the policy of leaving them subject to legislative altera- tion, so apparent as to require a forced con- struction of that instrument in order to effect it. These eleemosynary institutions do not fill the place which would otherwise be oc- cupied by government, but that which would otherwise remain vacant. They are com- plete acquisitions to literature. They are donations to education; donations, which any goverament must be disposed rather to en- courage than to discountenance. It requires no veiy critical examination of the human mind, to enable us to determine, that one great inducement to these gifts is the con- viction felt by the giver, that the disposition he makes of them is immutable. It is prob- able, that no man ever Avas, and that no man ever will be, the founder of a college, believing at the time, that an act of incor- poration constitutes no security for the insti- tution; believing, that it is immediately to be deemed a public institution, whose funds are to be governed and applied, not by the will of the donor, but by 1,he will of the legislature. All such gifts are made in the pleasing, perhaps delusive hope, that the charity AA'ill floAv forever in the channel AA'bich the givers have marked out for it. If every man finds in his oAvn bosom strong CA-idence of the uniA'ersality of this sentiment, there can be but little reason to imagine that the framers of our constitution Avere strangers to it, and that, feeling the necessity and pol- icy of giving permanence and security to contracts, of withdraAviug them from the in- fiuence of legislative bodies, Avhose fluctuat- ing policy and repeated interferences pro- duced the most perplexing and injurious em- barrassments, they still deemed it necessary to leave these contracts subject to those in- terferences. The motives for such an ex- ception must be very powerful, to justify the construction AA'hich makes it. The motives suggested at the bar, grow out of the original appointment of the trus- tees, which is supposed to haA'e been in a spirit hostile to the genius of our govern- ment, and the presumption, that, if alloAved to continue themselves, they now are, and must remain forever, Avhat they originally were. Hence is inferred the necessity of ap- plying to this corporation, and to other sim- ilar corporations, the correcting and improv- ing hand of the legislatiire. It has been urged repeatedly, and certain- ly Avith a degree of earnestness which at- tracted attention, that the trustees, deriving their poAver from a regal source, must, nec- essarily, partake of the spirit of their origin; and that their first principles. unimproA^ed by that resplendent light Avhich has been slied around them, must continue to govern the college, and to guide tlie students. Be- fore Ave inquire into the influence Avhich this argument ought to have on the constitution- al question, it may not be amiss to examine the fact on which it rests. The first trus- tees AA'ere undoubtedly named in the char- ter by the croAvn; but at Avhose suggestion Avere they named? By whom AA'ere they se- lected? The charter informs us. Dr. Wheelock had represented, "that, for many Aveighty reasons, it Avould be expedient, that the gen- tlemen Avhom he had already nominated, in his last Avill, to be trustees in America, should be of the corporation noAV proposed." When, afterAvards, the trustees are named CHARTERS AS C02s TRACTS. 209 in the charter, can it be doubted that the persons mentioned by Dr. Wheelock, in liis Avill, were appointed? Some were probably added bj^ the crown, with the approbation of Dr. Wheelock. Among these is tlie doctor liimself. If any others were appointed at the instance of the crown, they are the gov- ernor, three members of tlie council, and the spealcer of the house of representatives, of the colony of New Hampshire. The stations filled by these persons ought to rescue them from any other imputation than too great a dependence on the crown. If, in the Revo- lution that followed, they acted under the influence of this sentiment, they must have ceased to be trustees; if they took part with their countrymen, the imputation which sus- picion might excite, would no longer attach to them. The oi-iginal trustees, then, or most of them, were named by Dr. Whee- lock, and those who were added to his nom- ination, most probably with his approbation, were among the most eminent and respecta- ble individuals in New Hampshire. The only evdence which we possess of the character of Dr. Wheelock, is furnished by this charter. The judicious means employed for the accomplishment of his object, and the success which attended his endeavors, would lead to the opinion, that he united a sound understanding to that humanity and benev- olence which suggested his undertaking. It surely cannot be assumed, that his trustees were selected without judgment. With as little probability can it be assumed, that, while the light of science and of liberal prin- ciples pervades the whole community, these originally benighted trustees remain in utter darkness, incapable of participating in the general improvement; that, while the human race is rapidly advancing, they are station- ary. Reasoning a priori, we should believe that learned and intelligent men, selected by its patrons for the government of a literary institution, would select learned and intelli- gent men for their successors; men as well fitted for the government of a college as those who might be chosen by other means. Should this reasoning ever prove erroneous in a particular case, public opinion, as has been stated at the bar, would correct the institu- tion. The mere possibility of the coutrai-j- would not justify a construction of the con- stitution, which should exclude these con- tracts from the protection of a provision whose terms comprehend them. The opinion of the court, after mature de- liberation, is, that this is a contract, the ob- ligation of which cannot be impaired, with- out violating the constitution of the United States. This opinion appears to us to be equally supported by reason, and by the for- mer decisions of this court. 2. We next proceed to the inquiry, whether its obligation has been impaired by those acts of the legislature of New Hampshire, to which the special verdict refers. From the review of this charter, which has SMITH, CONST. LAW — 14 been taken, it appears that the whole power of governing the college, of appointing and removing tutors, of fixing their salaries, of directing the course of study to be pursued by the students, and of filling up vacancies created in their own body, was vested in the trustees. On the part of the crown, it was expressly stipulated that this corporation, thus constituted, should continue forever; and that the number of trustees should for- ever consist of twelve, and no more. By this contract, the crown was bound, and could have made no violent alteration in its essen- tial terms, without impairing its obligation. By the Revolution, the duties as well as the powers of government devolved on the people of New Hampshire. It is admitted, that among the latter was comprehended the tran- scendent power of parliament, as Avell as that of the executive department. It is too clear to require the support of argument, that all contracts and rights, respecting property, re- mained unchanged by the Revolution. The obligations, then, which were created by the charter to Dartmouth College, were the same in the new that they had been in the old gov- ernment. The power of the government was also the same. A repeal of this charter at any time prior to the adoption of the present constitution of the United States, would have been an extraordinary and unprecedented act of power, but one which could have been con- tested only by the restrictions upon the leg- islature, to be found in the constitution of the state. But the constitution of the United States has imposed this additional limitation, that the legislature of a state shall pass no act "impairing the obligation of contracts." It has been already stated, that the act "to amend the charter, and enlarge and improve the corporation of Dartmouth College," in- creases the number of trustees to twenty-one, gives the appointment of the additional mem- bers to the executive of the state, and creates a board of overseers, to consist of twenty-five persons, of whom twenty-one are also ap- pointed by the executive of New Hampshire, who have power to inspect and control the most important acts of the trustees. On the effect of this law, two opinions can- not be entertained. Between acting directly, and acting through the agency of trustees and overseers, no essential difference is per- ceived. The wnole power of governing the college is transferred from trustees, appointed according to the will of the founder, express- ed in the charter, to the executive of New Hampshire. The management and applica- tion of the funds of this eleemosynary insti- tution, Avhich are placed by the donors in the hands of trustees named in the charter, and empowered to peiijetuate themselves, are placed by this act under the control of the government of the state. The will of the state is substituted tor the will of the donors, in every essential operation of the college. This is not an immaterial change. The founders of the college contracted, not mere- 210 LAWS IMPAIRING THE OBLIGATION OF CONTRACTS. ly for the perpetual application of the funds which they gave, to the objects for which those funds were given, they contracted also, to secure that application by the constitution of the corporation. They contracted for a system, whici^ should, as far as human fore- sight can provide, retain forever the govern- ment of the literary institution they had formed, in the hands of persons approved by themselves. This system is totally changed. The charter of ITGD exists no longer. It is reorganized; and reorganized in such a man- ner, as to convert a literary institution, moulded a(;cording to the will of its found- ers, and placed under the control of private literary men, inco a machine entirely sub- servient to the will of government. This may be for the advantage of this college in par- ticular, and may be for the advantage of lit- erature in general; but it is not according to the will of the donors, and is subversive of that contract, on the faith of which their property was given. In the view which has been taken of this interesting case, the court has confined itself to the rights possessed by the trustees, as the assignees and representatives of the donors and founders, for the benetit of religion and literature. Yet it is not clear, that the trus- tees ought to be considered as destitute of such benelicial interest in themselves, as the law may respect. In addition to their be- ing the legal owners of the property, and to their having a freehold right in the powers confided to them, the charter itself counte- nances the idea that trustees may also be tutors, with salaries. The first president was one of the original trustees; and the charter provides, that in case of vacancy in that of- fice, "the senior professor or tutor, being one of the trustees, shall exercise the office of president, until the trustees shall make choice of. and appoint a president." According to the tenor of the charter, then, the trustees might, without impropriety, appoint a presi- dent and othei- professors from their own body. This is a power not entirely uncon- nected with an interest. Even if the propo- sition of the counsel for the defendant were sustained; if it were admitted, that those contracts only are protected by the constitu- tion, a beneficial interest in which is vested in the party who appears in court to assert that interest; yet it is by no means clear, that the trustees of Dartmouth College have no beneficial interest in themselves. But the court has deemed it unnecessary to investigate this particular point, being of opinion, on general principles, that in these private eleemosynary institutions, the body corpoi-ate, as possessing the whole legal and equitable interest, and completely represent- ing the donors, for the purpose of execut- ing the trust, has rights rvhich are protected by the constitution It results from this opinion, that the acts of the legislature of New Hampshire, which are stated in the special verdict found in this cause, are repug.iant to the constitution of the United States; and that the judgment on this special verdict ought to have been for the plaintiflis. The judgment of the state court must, therefore, be reversed. Mr. Justice WASHIX(rrON, Mr. Justice STORY, and Mr. Justice LIVINGSTON con- curred. Mr. Justice DUVALL dissents. CHARTERS AS CONTRACTS. 211 STONE et al. v. MISSISSIPPI. (101 U. S. 814.) Supreme Court of the United States. Oct., 1879. Error to the supreme court of the state of Mississippi. This was a proceeding in the nature of quo warranto instituted in a court of the state of Mississippi by the attorney-general against John B. Stone and others, carrying on a lot- tery or gift enterprise under the name of the Mississippi Agricultural, Educational, and Manufacturing Aid Society. There was a judgment for plaintiff, which was affirmed toy the supreme court of Mississippi, and de- fendants brought error. Affirmed. Philip Phillips, for plaintiffs in error. A. M. Clayton and Van H. Manning, for defend- ant in error. Mr. Chief Justice WAITE delivered the opinion of the court. It is now too late to contend that any con- tract which a state actually enters into when granting a charter to a private corporation is not within the protection of the clause in the constitution of the United States that pro- hibits states from passing laws impairing the obligation of contracts. Article 1, § 10. The doctrines of Trustees of Dartmouth Col- lege V. Woodward, 4 Wheat. 518, announced by this court more than sixty years ago, have become so imbedded in the jurispru- dence of the United States as to make them to all intents and pui-poses a part of the con- stitution itself. In this connection, however, it is to be kept in mind that it is not the charter which is protected, but only any con- tract the charter may contain. If there is no contract, there is nothing in the grant on which the constitution can act. Consequent- ly, the first inquiry in this class of cases al- ways is, whether a contract has in fact been entered into, and if so, what its obligations are. In the present case the question is wheth- er the state of Mississippi, in its sovereign capacity, did by the charter now under con- sideration bind itself irrevocably by a con- tract to permit "the Mississippi Agricultural, Educational, and Manufacturing Aid Socie- ty," for twenty-five years, "to receive sub- scriptions, and sell and dispose of certificates of subscription which shall entitle the hold- ers thereof to" "any lands, books, paintings, antiques, scientific instruments or apparatus, or any other property or thing that may be ornamental, valuable, or useful," "awarded to them" "by the casting of lots, or by lot, chance, or otherwise." There can be no dis- pute but that under this form of words the legislature of the state chartered a lottery company, having all the powers incident to such a coiTporation, for twenty-five years, and that in consideration thereof the company paid into the state treasury $5,000 for the use of a university, and agreed to pay, anu until the commencement of this suit did pay, an annual tax of $1,000 and "one-half of one per cent on the amount of receipts derived from the sale of certificates or tickets." If the legislature that granted this charter had the power to bind the people of the state and all succeeding legislatures to allow the corpo- ration to continue its corporate business dur- ing the whole term of its authorized exist- ence, there is no doubt about the sufficiency of the language employed to effect that ob- ject, although there was an evident purpose to conceal the vice of the transaction by the phrases that were used. Whether the alleged conti-act exists, therefore, or not, depends on the authority of the legislature to bind the state and the people of the state in that way. All agree that the legislature cannot bar- gain away the police power of a state. "Ir- revocable grants of property and franchises may be made if they do not impair the su- preme authority to make laws for the right government of the state; but no legislature can curtail the power of its successors to make such laws as they may deem proper in matters of police." Board of Excise v. Bar- rie, 34 N. Y. 657; Boyd v. Alabama, 94 U. S. 645. Many attempts have been made in this court and elsewhere to define the police power, but never with entire success. It is always easier to determine whether a partic- ular case comes within the general scope of the power, than to give an abstract definition of the power itself which will be in all re- spects accurate. No one denies, however, that it extends to all matters affecting the public health or the public morals. Beer Co. V. Massachusetts, 97 U. S. 25; I'atterson V. Kentucky, Id. 501. Neither can it be de- nied that lotteries are proper subjects for the exercise of this power. We are aware that formerly, when the sources of public revenue were fewer than now, they were used in some or all of the states, and even in the District of Columbia, to raise money for the erection of public buildings, making public improvements, and not unfrequently for educational and religious purposes; but this court said, more than thirty years ago, speaking through Mr. Justice Grier, in Pha- len V. Virginia, 8 How. 163, 168, that "expe- rience has snown that the common forms of gambling are comparatively innocuous when placed in contrast with the wide-spread pes- tilence of lotteries. The former are confined to a few persons and places, but the latter in- fests the whole community; it enters every dwelling; it reaches every class; it preys upon the hard earnings of the poor; and it plunders the ignorant and simple." Happi- ly, under the influence of restrictive legisla- tion, the evils are not so apparent now; but we very much fear that with the same op- portunities of indulgence the same results would be manifested. If lotteries are to be tolerated at all, it is no doubt better that they should be regu- 212 LAWS IMPAIRING THE OBLIGATION OF CONTRACTS. lated by law. so that the people may be pi"o- tected as far as possible against the inherent vices of the system; but that they are de- moralizing in their effects, no matter how carefully regulated, cannot admit of a doubt. When the government is untrammeled by any claim of vested lights or chartered priv- ileges, no one lias ever supposed that lotter- ies could not lawfully be suppressed, and those who manage them punished severely as violators of the rules of social morality. From 1822 to 1867, without any constitution- al requirement, they were prohibited by law in Mississippi, and those who conducted them punished as a kind of gamblers. During the provisional government of that state, in 1867, at the close of the late civil war, the present act of incorporation, with mce of like char- acter, was passed. The next year, 1868, the people, in adopting a new constitutiou with a view to the resumption of their political rights as one of the United States, provided that "the legislature shall never authorize any lottery, nor shall the sale of lottery-tick- ets be allowed, nor shall any lottery hereto- fore authorized be permitted to be drawn, or tickets therein to be sold." Article 12, § 15. There is now scarcely a state in the Union where lotteries are tolerated, and congress has enacted a special statute, the object of which is to close the mails against them. Rev. St. § 3894 (19 Stat. 90, § 2). The question is therefore directly present- ed, whether, in view of these facts, the leg- islature of a state can, by the charter of a lottery company, defeat the will of the peo- ple, authoritatively expressed, in relation to the further continuance of such business in their midst. We think it cannot. No legis- lature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. The supervision of both these subjects of govern- mental power is continuing in its nature, and they are to be dealt with as the special exigencies of the moment may require. Gov- ernment is organized with a view to their preservation, and cannot divest itself of the power to provide for them. For this purpose the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself. Beer Co. v. Massachusetts, supra. In Dartmouth College v. Woodward, 4 Wheat. 518, it was argued that the contract clause of the constitution, if given the effect contended for in respect to corporate fran- chises, "would be an unprofitable and vexa- tious interference with the internal concerns of a state, would unnecessarily and unwisely embarrass its legislation, and render immuta- ble those civil institutions which are estab- lished for the purpose of internal govern- ment, and which, to subserve those purposes, ought to vary with varying circumstances" (page 628); but Mr. Chief Justice Mai-shall, when he announced the opinion of the court, was careful to say (page 629) "that the fram- ers of the constitutiou did not intend to re- strain states in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us is not to be so construed." The present case, we think, comes within this limitation. We have held, not, however, without strong op- position at times, that this clause protected a corporation in its charter exemptions from taxation. While taxation is in general nec- essary for the support of government, it is not part of the government itself. Govern- ment was not organized for the purposes of taxation, but taxation may be necessary for the purposes of government. As such, taxa- tion becomes an incident to the exercise of the legitimate functions of government, but nothing more. No government dependent on taxation for supix)rt can bargain away its whole power of taxation, for that would be substantially abdication. All that has been determined thus far is, that for a considera- tion it may, in the exercise of a reasonable discretion, and for the public good, surren- der a part of its powers in this particular. But the power of governing is a trust com- mitted by the people to the government, no part of which can be granted away. The people, in their sovereign capacity, have es- tablished their agencies for the preservation of the public health and the public moi"als, and the protection of public and private rights. These several agencies can govern according to their discretion, if within the scope of their general authority, while in power; but they cannot give away nor sell the discretion of those that are to come aicer them, in respect to matters the government of which, from the very nature of things, must "vary with varying circumstances." They may create corporations, and give them, so to speak, a limited citizenship; but as citizens, limited in their privileges, or oth- erwise, these creatures of the government creation are subject to such rules and regu- lations as may from time to time be ordained and established for the preservation of health and morality. The contracts which the constitution pro- tects are those that relate to property rights, not governmental. It is not always easy to tell on which side of the line which separates governmental from property i-ights a partic- ular case is to be put; l)ut in respect to lot- teries there can be no difliculty. They are not, in the legal acceptation of the term, ma- la in se, but, as we have just seen, may prop- erly be made mala prohibita. They are a species of gambling, and wrong in their in- fluences. They disturb the checks and bal- ances of a well-ordered community. Society built on such a foundation would almost of necessity bring forth a population of specu- lators and gamblei*s, living on the expecta- tion of what, "by the casting of lots, or by lot, chance, or otherwise," might be "award- ed" to them from the accumulations of oth- ers. Certainly the right to suppress them is CHARTERS AS CONTRACTS. 213 governmental, to be exercised at all times by those in power, at their discretion. Any one, therefore, who accepts a lottery charter does so with the implied understanding that the people, in their sovereign capacity, and through their properly constituted agencies, may resume it at any time when the public good shall require, whether it be paid for or not. All that one can get by such a charter Ls a suspension of certain governmental rights in his favor, subject to withdrawal at will. He has in legal effect nothing more than a license to enjoy the privilege on the terms named for the specified time, unless it be sooner abrogated by the sovereign power of the state. It is a permit, good as against existing laws, but subject to future legisla- tive and constitutional control or withdrawal. On the whole, we find no error in the rec- ord. Judgment affirmed. 214 EX POST FACTO LAWS. Ex parte GARLAND. (4 Wall. 333.) Supreme Court of the United States. Dec, 18G6. This was a petition by A. H. Garland to the supreme court of the United States, asking permission to continue to practice as an attorney and counsellor of the court without taking the oath of offtce prescribed by Act Cong. Jan. 24, 1S65, and the rule of court adopted pursuant thereto. Grant- ed. Reverdy Johnson, R. H. :Marr. and M. H. Carpenter, for the petitioner, Mr. Garland. Mr. Justice FIELD delivered the opinion of the court. On the second of July, 18(>2, congress passed an act prescribing an oath to be taken by every person elected or appointed to any office of honor or profit under the government of the United States, either in the civil, militaiy, or naval department of the public service, except the president, be- fore entering upon the duties of his office, and before being entitled to its salary, or other emoluments. On the 24th of Jan- uary, 18G5, congress, by a supplementary act, extended its pi'ovisions so as to em- brace attorneys and counsellors of the courts of the United States. This latter act provides that after its passage no person shall be admitted as an attorney and coun- sellor to the bar of the supreme court, and, after the foiu-th of March, ISlJ-j, to the bar of any circuit or district court of the United States, or of the court of claims, or be allowed to appear and be heard by virtue of any previous admission, or any special power of attorney, unless he shall have first taken and subscribed the oath prescribed by the act of July 2d, 18(j2. It also provides that the oath shall be pre- served among the files of the court; and if any person take it falsely he shall be guilty of perjury, and, upon conviction, shall be subject to the pains and penalties of that offence. At the December term, 18G0, the petition- er was admitted as an attorney and coun- sellor of this court, and took and sub- scribed the oath then required. By the second rale, as it then existed, it was only requisite to the admission of attorneys and counsellors of this court, that they should have been such officers for the three pre- vious years in the highest courts of the states to which they respectively belonged, and that their private and professional character should appear to be fair. In March, 1865, this rule was changed by the addition of a clause requiring the ad- ministration of the oath, in conformity with the act of congress. In May, 1861, the state of Arkansas, of which the petitioner was a citizen, passed an ordinance of secession, which purported to withdraw the state from the Union, and afterwards, in the same year, by another ordinance, attached herself to the so-ialled Confederate States, and by act of the con- gress of that Confederacy was received as one of its members. The petitioner followed the state, and was one of her i-epreseutatives — first in the lower house, and afterwards in the senate, of the congress of that Confederacy, and was a member of the senate at the time of the surrender of the Confederate forces to the armies of the United States. In July, 1865, he received from the pres- ident of the United States a full pardon for all offences committed by his parti-cipation, direct or implied, in the Rebellion. He now produces his pardon, and asks permis- sion to continue to practise as an attorney and counsellor of the court without taking the oath required by the act of January 24th, 1865, and the rule of the court, which he is unable to take, by reason of the of- fices he held under the Confedei^ate gov- ernment. He rests his application prin- cipally upon two gi'ounds: 1st. That the act of January 24th, 18(35, so far as it affects his status in the court, is unconstitutional and void; and, 2d. That, if the act be constitutional, he is released from compliance with its provi- sions by the pardon of the president. The oath prescribed by the act is as fol- lows: 1st. That the deponent has never voluntari- ly borne arms against the United States since he has been a citizen thereof; 2d. That he has not voluntarily given aid, countenance, counsel, or encouragement tb persons engaged in armed hostility thereto; 3d. That he has never sought, accepted, or attempted to exercise the functions of any office whatsoever, under any authority, or pretended authority, in hostility to the United States; 4th. That he has not yielded a voluntary support to any pretended government, au- thority, power, or constitution, within the United States, hostile or inimical thereto; and, 5th. That he will support and defend the constitution of the United States against all enemies, foreign and domestic, and will bear true faith and allegiance to the same. This last clause is promissory only, and requires no consideration. The questions presented for our determination arise from the other clauses. These all relate to past acts. Some of these acts constituted, when they were committed, offences against the criminal laws of the country; others may, or may not, have been offences according to the circumstances under which they were committed, and the motives of the parties. The first clause covers one form of the YALIDITY OF EX POST FACTO STATUTES. 215 crime of treason, and the deponent must dec-lare that lie has not been guilty of this crime, not only during the war of the Re- bellion, but during any period of his life since he has been a citizen. The second clause goes beyond the limits of treason, and embraces not only the giving of aid and encouragement of a treasonable nature to a public enemy, but also the giving of assistance of any kind to persons engaged in armed hostility to the United States. The third clause applies to the seeking, ac- ceptance, or exercise not only of offices cre- ated for the purpose of more effectually carrying on hostilities, but also of any of those offices which are required in every community, whether in peace or war, for the administration of justice and the preser- vation of order. The fourth clause not on- ly includes those Avho gave a cordial and active support to the hostile government, but also those who yielded a reluctant obedi- ence to the existing order, established with- out their co-operation. The statute is directed against parties who have offended in any of the particulars embraced by these clauses. And its object is to exclude them from the profession of the law, or at least from its practice in the courts of the United States. As the oath prescribed cannot be taken by these par- ties, the act, as against them, operates as a legislative decree of perpetual exclusion. And exclusion from any of the professions or any of the ordinary avocations of life for past conduct can be regarded in no other light than as punishment for such conduct. The exaction of the oath is the mode pro- * vided for ascertaining the parties upon whom the act is intended to operate, and instead of lessening, increases its objec- tionable character. All enactments of this kind partake of the nature of bills of pains and penalties, and are subject to the con- stitutional inhibition against the passage of bills of attainder, under which general des- ignation they are included. In the exclusion which the statute ad- judges it imposes a punishment for some of the acts specified which were not pun- ishable at the time they were committed; and for other of the acts it adds a new pun- ishment to that before prescribed, and it is thus brought within the further inhibition of the constitution against the passage of an ex post facto law. In the case of Cum- mings V. State (just decided) 4 Wall. 316, we have had occasion to consider at length the meaning of a bill of attainder and of an ex post facto law in the clause of the con- stitution forbidding their passage by the states, and it is unnecessary to repeat hei-e what we there said. A like prohibition is contained in the constitution against enact- ments of this kind by congress; and the argument presented in that case against certain clauses of the constitution of Mis- souri is equally applicable to the act of congress under consideration in this case. The profession of an attorney and coun- sellor is not like an office created by an act of congress, which depends for its con- tinuance, its powers, and its emoluments upon the will of its creator, and the pos- session of which may be burdened with any conditions not prohibited by the constitu- tion. Attorneys and counsellors are not of- ficers of the United States; they are not elected or appointed in the manner pre- scribed by the constitution for tlie election and appointment of such officers. They are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character. It has been the general practice in this country to obtain this evidence by an examination of the parties. In this court the fact of the admission of such officers in the highest court of the states to which they respectively belong, for three years pre- ceding their application, is regarded as suf- ficient evidence of the possession of the requisite legal learning, and th^ statement of counsel moving their admission sufficient evidence that their private and professional character is fair. The order of admission is the judgment of the court that the parties possess the requisite qualifications as at- torneys and counsellors, and are entitled to appear as such and conduct causes therein. From its entry the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been af- forded. Ex parte Heyfron, 7 How. (Miss.) 127; Fletcher v. Daingerfield, 20 Cal. 430. Their admission or their exclusion is not the exercise of a mere ministerial power. It is the exercise of judicial power, and has been so held in numerous cases. It was so held by the court of appeals of New York in Re Application of Cooper for Admission, 22 N. Y. 81. "Attorneys and counsellors," said that court, "are not only officers of the court, but officers whose duties relate almost exclusively to proceed- ings of a judicial nature. And hence their appointment may, with propriety, be in- ti-usted to the courts, and the latter in per- foi-ming this duty may very justly be con- sidered as engaged in the exercise of their appropriate judicial functions." In Ex parte Secoml>e, 19 How. 9, a man- damus to the supreme court of the territory of Minnesota to vacate an order removing an attorney and counsellor was denied by this court, on the ground that the removal was a judicial act. "We are not aware of any case," said the court, "where a manda- mus was issued to an inferior tribunal, commanding it to reverse or annul its de- 216 EX POST FACTO LAWS. cision, where the decision was in its na- ture a judicial act and within the scope of Its jurisdiction and discretion." And in the same case the court observed, that "it has been well settled by the rules and practice of common law courts, that it rests ex- clusively with the court to determine who is qualitied to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed." The attorney and counsellor being, by the solemn judicial act of the court, clothed with his office, does not hold it as a matter of grace and favor. The right which it confers upon him to appear for suitors, and to argue causes, is something more than a mere indulgence, revocable at the pleasure of th'e court, or at the command of the leg- islature. It is a right of which he can only be deprived by the judgment of the court, for moral or professional delinquency. The legislature may undoubtedlj' prescribe qualificatious for the office, to which he must conform, as it may, where it has ex- clusive jurisdiction, prescribe qualificatious for the pursuit of any of the ordinary avoca- tions of lite. The question, in this case, is not as to the power of congress to prescribe qualifications, but whether that power has been exercised as a means for the infliction of punishment, against the prohibition of the constitution. That this result cannot be effected indirectly by a state under the form of creating qualifications we have held in the case of Cummings v. State, 4 Wall. F>l(j, and the reasoning by which that con- clusion was reached applies equally to sim- ilar action on the part of congress. This view is strengthened by a considera- tion of the effect of the pardon produced by the petitioner, and the nature of the par- doning power of the president. The con.stitutiou provides that the presi- dent "shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment." Article 2. § 2. The power thus conferred is unlimited, with the exception stated. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the president is not subject to legislative control. Con- gress can neither limit the eifect of his par- don, nor exclude from its exercise any class of offenders. The benign prerogative of mer- cy reposed in him cannot be fettered by any legislative restrictions. Such being the case, the inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon i-eaches both the punishment prescrib- ed for the offence and the guilt of the of- fender; and when the pardon is full, it re- leases the punishment and blots out of ex- istence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted be- fore conviction, it prevents any of the pen- alties and disabilities consequent upon con- viction from attaching; if granted after con- viction, it removes the penalties and disa- bilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. There is only this limitation to its opera- tion: it does not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment. 4 Bl. Comm. 402; 6 Bac. Abr. tit. "Pardon"; Hawkins, bk. 2, c. 37, §§ 34, 54. The pardon produced by the petitioner is a full pardon "for all offences by him commit- ted, arising from participation, direct or im- plied, in the Rebellion," and is subject to certain conditions which have been complied with. The effect of this pardon is to relieve the petitioner from all penalties and disabili- ties attached to the offence of treason, com- mitted by his participation in the Rebellion. So far as that offence is concerned, he is thus placed beyond the reach of punishment of any kind. But to exclude him, by reason of that offence, from continuing in the en- joyment of a previously acquired right, is to enforce a punishment for that oft"ence not- withstanding the pardon. If such exclusion can be effected by the exaction of an expur- gatory oath covering the offence, the pardon may be avoided, and that accomplished in- directly which cannot be reached by direct legislation. It is not within the constitu- tional power of congress thus to inflict pun- ishment beyond the reach of executive clem- ency. From the petitioner, therefore, the oath required by the act of January 24th, 1865, could not be exacted, even if that act were not subject to any other objection than the one thus stated. It follows, from the views expressed, that the prayer of the petitioner must be granted. The case of R. H. Marr is similar, in its main features, to that of the petitioner, and his petition must also be granted. And the amendment of the second rule of the court, which requires the oath prescribed by the act of January 24th. 1865, to be taken by attorneys and counsellors, having been unadvisedly adopted, must be rescinded. And it is so ordei-ed. Mr. Justice MILLER delivered the follow- ing dissenting opinion, which applies also to the opinion delivered in Cummings v. State. 4 W\all. 316: I dissent from the opinions of the court just announced. It may be hoped that the exceptional cir- cumstances which give present imp<5rtance to these cases will soon pass away, and that those who make the laws, both state and national, will find in the conduct of the per- VALIDITY OF EX POST FACTO STATUTES. 217 sons affected by tbe legislation just declared to be void, sufficient reason to repeal, or es- sentially modify it. For the speedy return of that better spirit, which shall leave us no cause for such laws, all good men look with anxiety, and with a hope, I trust, not altogether unfounded. But the question involved, relating, as it does, to the right of tbe legislatures of the na- tion, and of the state, to exclude from offices and places of high public trust, the adminis- tration of whose functions are essential to the very existence of the government, those among its own citizens who have been en- gaged in a recent effort to destroy that gov- ernment by force, can never cease to be one of profound interest. It is at all times tbe exercise of an ex- tremely delicate power for this court to de- clare that the congress of the nation, or the legislative body of a state, has assumed an authority not belonging to it, and by violat- ing the constitution, has rendei'ed void its attempt at legislation. In the case of an act of congress, wliich expresses the sense of the members of a co-ordinate department of the government, as much bound by their oath of office as we are to respect that con- stitution, and whose duty it is, as much as it is ours, to be careful that no statute is pass- ed in violation of it, the incompatibility of the act with the constitution should be so clear as to leave little reason for doubt, be- fore we pronounce it to be invalid. Unable to see this incompatibility, either in the act of congress or in the provision of the constitution of Missouri, upon which this court has just passed but entertaining a strong conviction that both were within the ■competency of the bodies which enacted them, it seems to me an occasion which de- mands that my dissent from the judgment of the court, and the reasons for that dis- sent, should be placed on its records. In the comments which I have to make upon these cases, I shall speak of principles equally applicable to both, although I shall refer more directly to that which involves the oath required of attorneys by the act of congress, reserving for the close some re- marks more especially applicable to the oath prescribed by the constitution of the state •of Missouri. The constitution of the United States makes ample provision for the establishment of courts of justice to administer her laws, and to protect and enforce the rights of her ■citizens. Article 3, § 1, of that instrument, says that "the judicial power of the United States shall be vested in one supreme court, and such inferior courts as the congress may, from time to time, ordain and establish." Section 8 of article 1 closes its enumeration of the powers conferred on congress by the broad declaration that it shall have authority "to make all laws which shall be necessary and proper for canning into execution the foregoing powers, and all other powers vest- ed by the constitution in the government of the United States, or in any department thereof." Under these provisions, congress has or- dained and establisued circuit courts, dis- trict courts, and territorial courts; and has, by various statutes, fixed the number of the judges of the supreme court. It has limited and defined the jurisdiction of all these, and determined the salaries of the judges who hold them. It has provided for their neces- sary officers, as marshals, clerks, prosec\it- ing attorneys, bailiffs, commissioners, and jurors. And by the act of 1789, commonly called the judiciary act, passed by the first congress assembled under the constitution, it is among other things enacted, that "in all the courts of the United States the parties may plead and manage their causes personal- ly; or by the assistance of such counsel or attorneys-at-law as, by the rules of the said courts respectively, shall be permitted to manage and conduct causes therein." It is believed that no civilized nation of modern times has been without a class of men intimately connected with the courts, and with the administration of justice, called variously attorneys, counsellors, solicitoi"S, proctors, and othei terms of similar import. The enactment which we have just cited rec- ognizes this body of men, and their utility in the judicial system of the United States, and imposes upon the courts the duty of provid- ing rules, by which persons entitled to be- come members of this class, may be per- mitted to exercise the privilege of managing and conducting causes in these courts. They are as essential to the successful working of the courts, as the clerks, sheriffs, and mar- shals, and perhaps as the judges themselves, since no instance is known of a court of law without a bar The right to practise law in the courts as a profession, is a privilege granted by the law, under such limitations or conditions in each state or government as the law-making power may prescribe. It is a privilege, and not an absolute right. The distinction may be illustrated by the difference between the right of a party to a suit in court to defend his own cause, and the right of another to appear and defend for him. The one, like the right to life, liberty, and the pursuit of happiness, is inalienable. The other is the privilege conferred by law on a person who complies with the prescribed conditions. Every state in the Union, and every civ- ilized government, has laws by v>hich the right to practise in its courts maybe granted, and makes that right to depend on the good moral character and professional skill of the party on whom the privilege is conferred. This is not only true in reference to the first grant of license to pi-actise law, but the con- tinuance of the right is made, by these laws, to depend upon the continued possession of those qualities. Attorneys are often deprived of this right, >18 EX POST FACTO LAWS. upon evidence of bad moral chai-acter, or specific acts of immorality or dishonesty, which show that they no longer possess the requisite qualifications. All this is done by law, either statutoi-y or common; and whether the one or the other, equally the expression of legislative will, for the common law exists in this country only as it is adopted or permitted by the legisla- tures, or by constitutions. No reason is perceived why this body of men, in their important relations to the courts of the nation, arc, not subject to the action of congi*ess, to the same extent that they are under legislative control in the states, or in any othei government; and to the same extent that the judges, clerks, mar- shals, and other officers of the court are sub- ject to congressional legislation. Having the power to establish the courts, to provide for and regulate the practice in those courts, to create their officers, and prescribe their functions, can it be doubted that congress has the full right to presc-ribe terms for the admission, rejection, and expulsion of attor- neys, and for requiring of them an oath, to show whether they have the proper qual- ifications for the discharge of their duties? The act which has just been declared to be unconstitutional is nothing more than a statute which requires of all lawyers who propose to practise in the national courts, that they shall take the same oath which is exacted of every officer of the government, civil or military. This oath has two aspects; one Avhich looks to the past conduct of the party, and one to his rutvu'e conduct; but both have reference to his disposition to sup- port or to overturn the government, in whose functions he proposes, to take part. In sub- stance, he is required to swear that he has not been guilty of treason to that govern- ment in the past, and that he will bear faith- ful allegiance to it in the future. That fidelity to the government under which he lives, a true and loyal attachment to it, and a sincere desire for its preserva- tion, are among the most essential qualifica- tions which should be required in a lawyer, seems to me to be too clear for argument. The history of the Anglo-Saxon race shows that, for ages past, the members of the legal profession have been powerful for good or evil to the government. They are. by the nature of their duties, the moulders of pub- lic sentiment on questions of government, and are every day engaged in aiding in the construction and enforcement of the laws. From among their numPers are necessarily selected the judges who expound the laws and the constitution. To suffer treasonable sentiments to spread here unchecked, is to permit the stream on which the life of the nation depends to be poisoned at its source. In illustration of this truth, I venture to affirm, that if all the members of the legal profession in the states lately in insurrec- tion had possessed the qualification of a loyal and faithful allegiance to the govern- ment, we should have been spared the hor- rors of that Rebellion. If, then, this quali- fication be so essential in a lawyer, it can- not be denied that the statute under consid- eration was eminently calculated to secure that result. The majority of this court, however, do not base their decisions on the mere absence of authority in congress, and in the states, to enact the laws which are the subject of consideration, but insist that the constitution of the United States forbids, in prohibitory terms, the passage of such laws, both to the congress and to the states. The provisions of that instrument, relied on to sustain this doctrine, are those which forbid congress and the states, respectively, from passing bills of attainder and ex post facto Unvs It is t-aid that the aet of congress, and the provision of the constitution of the state of Missouri under review, are in conflict with both these prohibitions, and are therefoi'e void. I will examine this proiwsition, in refer- ence to these two clauses of the constitution, in the order in which they occur in that in- strument. 1. In regard to bills of attainder, I am not aware of any judicial decision by a court of federal jurisdiction which undertakes to give a definition of that term. We are therefore compelled to recur to the bills of jittainder passed by the English parliament, that we may learn so much of their peculiar charac- teristics, as will enable us to arrive at a sound conclusion, as to v/hat was intended to be prohibited by the constitution. The word "attainder" is derived, by Sir Thomas Tomlins, in his law dictionai'y, from the words "attincta" and "attinctura," and is defined to be "the stain or corruption of the blood of a criminal capitally condemned; the immediate inseparable consequence of the common law. on the pronouncing the sen- tence of death." The effect of this corrup- tion of the blood was, that the party attaint- ed lost all inheritable qtiality, and could nei- ther receive nor transmit any property or other rights by inheritance. This attainder or corruption of blood, as a consequence of judicial sentence of death, continued to be the law of England, in all cases of treason, to the time that our con- stitution was framed, and. for aught that is known to me, is the law of that country, on condemnation for treason, at this day. Bills of attainder, therefore, or acts of at- tainder, as they were called after they were passed into stattites, were laws which de- clared certain persons attainted, and their blood corrupted so that it had lost all herita- ble quality. Whether it declared other pun- ishment or not, it was an act of attainder if it declared this. This also seems to have been the main feature at which the authors of the constitution were directing their pro- hibition; for after having, in article 1, pro- hibited the passa4';e of bills of attainder — in YALIDITY or EX POST FACTO STATUTES. 219 section 9, to congress, and in section 10, to the states— there still remained to the ju- diciary the power of declaring attainders. Therefore, to still further guard against this odious form of punishment, it is provided, in section 3 of article 3, concerning the ju- diciary, that, while congress shall have pow- er to declare the punishment of treason, no attainder of ti'eason shall work corruption of blood or forfeiture, except during the life of the person attainted. This, however, while it was the chief, was not the only peculiarity of bills of attainder which was intended to be included within the constitutional restriction. Upon an at- tentive examination of the distinctive fea- tures of this kind of legislation, I think it will be found thav the following comprise those essential elements of bills of attainder, in addition to the one already mentioned, which distinguish them from other legisla- tion, and which made them so obnoxious to the statesmen who organized our govex*n- ment: 1. They were ccnviciions and sentences pronounced by the legislative department of the government instead of the judicial. 2. The sentence pronounced and the pun- ishment inflicted were determined by no pre- vious law or fixed rule. 3. The investigation into the guilt of the accused, if any such were made, was not necessarily or generally conducted in his presence, or that of his counsel, and no rec- ognized rule of evidence governed the in- quiry. See Story, Const. § 1344. It is no cause for wonder that men who had just passed successfully through a des- perate struggle in behalf of civil liberty should feel a detestation for legislation of which these were the prominent features. The framers of our political system had a full appreciation of the necessity of keeping separate and distinct the primary depart- ments of the government. Mr. Hamilton, in the seventy-eighth number of the Federalist, says that he agrees with the maxim of Montesquieu, that "there is no liberty if the power of judging be not separated from the legislative and executive powers." And oth- ers of the ablest numbei's of that publication are devoted to the purpose of showing that in our constitution these powers are so just- ly balanced and restrained that neither will probably be able to make much encroach- ment upon the others. Nor was it less re- pugnant to their views of the security of personal rights, that any person should be condemned without a hearing, and punished without a law previously prescribing the na- ture and extent of that punishment. They therefore struck boldly at all this machinery of legislative despotism, by forbidding the passage of bills ot attainder and ex post facto laws, both to congress and to the states. It remains to inquire whether, in the act of congress under consideration (and the re- marks apply with equal force to the Mis- souri constitution), there is found any one of these features of bills of attainder; and if so, whether there is buflicient in the act to bring it fairly within the description of that class of bills. It is not claimed that the law works a cor- ruption of blood. It will, therefore, be con- ceded at once, that the act does not contaiu this leading feature oi bills of attainder. Nor am I capable of seeing that it contains a conviction or sentence of any designated person or persons. It is said that it is not necessary to a bill uf attainder that the party to be affected should be named in the act,, and the attainder of the Earl of Kildare and his associates is referred to as showing that the act was aimed at a class. It is very true that bills of attaindei have been passed against persons by some description, when their names were unknown. But in such cases the law leaves nothing to be done ta render its operation effectual, but to identify those persons. Their guilt, its nature, and its punishment are fixed by the statute, and only their personal identity remains to be made out. Such was the case alluded to. The act declared the guilt and punishment of the Earl of Kildare, and all who were as- sociated with him in his enterprise, and all that was required to insure their punishment was to prove that association. If this were not so, then the act was mere brutum fulmen, and the parties other than the earl could only be punished, notwith- standing the act, by proof of their guilt be- fore some competent tribunal. No person is pointed out in the act of con- gress, either by name or by description,, against whom it is to operate. The oath is onlj^ required of those who propose to ac- cept an office or to practise law; and as a prerequisite to the exercise of the functions of the lawyer, or the officer, it is demanded of all persons alike. It is said to be direct- ed, as a class, to those alone who were en- gaged in the Rebellion; but this is manifest- ly incorrect, as the oath is exacted alike froiu the loyal and disioyal, under the same circumstances, and rone are compelled to take it. Neither does the act declare any conviction, either of persons or classes. If so, who are they, and of what crime are they declared to be guilty? Nor does it pro- nounce any sentence, or inflict any punish- ment. If by any possibilitj' it can be said to provide for conviction and sentence, though not found in the act itself, it leaves the party himself to determine his own guilt or innocence, and pronounce his own sen- tence. It is not, then, the act of congress, but the party interested, that tries and con- demns. We shall see. when we come to the discussion of this act in its relation to ex post facto laws, that it inflicts no punish- ment. A statute, then which designates no crim- inal, either by name or description — which declares no guilt, pronounces no sentence. 220 EX POST FACTO LAWS. and inflicts no punishment— can in no sense be called a bill of attainder. 2. Passing now to consider whether the statute is an ex post facto law, we tind that the meaning of that term, as used in the ■constitution, is a niattei which has been fre- quently before this court, and it has been so well defined as to leave no room for contro- versy. The only doubt which can arise is as to the character of che particular case claimed to come within the definition, and not as to the definition of the phrase itself. All the cases agree that the term is to be applied to criminal causes alone, and not to civil proceedings. In the language of Jus- tice Story, in the case of Watson v. Mercer, 8 Pet. 88. "Ex post facto laws relate to penal and criminal proceedings, which impose pun- ishment and forfeiture, and not to civil pro- ceedings, which affect private rights retro- spectively." Calder v. Bull, 3 Dall. 386; Fletcher v. Peck, 6 Cranch, 87; Ogden v. Saunders, 12 Whtat. 2b6; Satterlee v. Mat- thewson, 2 Pet. 380. The first case on the subject is that of Calder v. Bull, and it is the one in which the doctrine concerning ex post facto laws is most fully expounded. The court divides all laws which come within the meaning of that clause of the constitution into four classes: 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when com- mitted. 3d. Evei-y law that changes the punish- ment, and inflicts a greater punishment than the law annexed to the crime when com- mitted. 4th. Every law that alters the rale of evi- dence, and receives less or different testi- mony than the law required at the time of the commission of the offence to convict the offender. Again, the court says, in the same opinion, that "the true distinction is between ex post facto laws, and retrospective laws;" and proceeds to show that, however unjust the latter may be, they are not prohibited by the constitution, while tne former are. This exposition of the nature of ex post facto laws has never been denied, nor has any court or any commentator on the con- stitution added to the classes of laws here set forth, as coming within that clause of the organic law Ir looking carefully at these four classes of laws, two things strike the mind as common to them all: 1st. That they contemplate the trial of some person charged with an offence. 2d. That they contemplate a punishment of the person found guilty of such offence. Now. it seems to me impossible to show that the law in question contemplates either the trial of a person for an offence commit- ted before its passage, or the punishment of any person for such an offence. It is true that the act requiring an oath provides a penalty for falsely taking it. But this pro- vision is prospective, as no one is supposed to take the oath until after the passage of the law. This prospective penalty is the on- ly thing in the law which partakes of a crim- inal character. It is in all other respects a civil proceeding Jt is simply an oath of office, and it is requii*ed of all office-holders alike. As far as I am informed, this is the first time in the history of jurisprudence that taking an oath of office has been called a criminal proceeding. If it is not a criminal proceeding, then, by all the authorities, it is not an ex post facto law. No trial of any person is contemplated by the act for any past oft'ence. Nor is any par- ty supposed to be charged with any offence in the only proceeding which the law pro- vides. A person proposing to appear in the court as an attorney is asked to take a certain oath. There' is no charge made against him thAt he has been guilty of any of the crimes mentioned in that oath. There is no prosecu- tion. There is not even an implication of guilt by reason of tendering him the oath, for it is required of the man who has lost everything in defence of the government, and whose loyalty is written in the honorable scars which cover his bodv, the same as of the guiltiest traitor in the land. His refusal to take the oath subjects him to no prosecu- tion. His taking it clears him of no guilt, and acquits him of do charge. Wher^. then, is this ex post facto law which tries and punishes a man for a crime committed before it was passed? It can only be found in those elastic rules of con- struction which cramp the powers of the fed- eral government when they are to be exer- cised in certain directions, and enlarge them when they are to be exercised in othei*s. No more striking example of this could be given than the cases before us, in one of which the constitution of the United States is held to confer no power on congress to prevent traitors practising in her courts, while in the other it is held to confer power on this court to nullify a provision of the constitution of the state of Missouri, relating to a qualifica- tion required of ministeis of religion. But the fatal vice in the reasoning of the majority is in the meaning which they at- tach to the word punishment, in its applica- tion to this law, and in its relation to the definitions which have been given of the phrase, ex post facto laws. Webster's second definition of the word "punish" is this; "In a loose sense, to af- flict with punishment, &c., with a view to amendment, to chasten " And it is in this loose sense that the word is used by this court, as synonymous with chastisement, correction, loss, or suffering to the party supposed to be ijunished, and not in the legal VALIDITY OF EX POST FACTO STATUTES. 221 sense, which signifies a penalty Inflicted for the commission of crime. And so, in this sense, it is said that where- as persons who had be^n guilty of the of- fences mentioned in the oath were, by the laws then In force, only liable to be punish- ed with death ana confiscation of all their property, they are by a law passed since these offences were committed, made liable to the enormous additional punishment of be- ing deprived of the right to practise law! The law in question does not in reality de- prive a person guilty of the acts therein de- scribed of any right which he possessed before; for it is equally sound law, as it is the dictate of good sense, that a person who, in the language of the act, has voluntarily borne arms against the government of the United States while a citizen thereof, or who has voluntarily given aid, comfort, coun- sel, or encouragement to persons engaged in armed hostility to the government, has, by doing those things, forfeited his right to appear in her courts and take part in the administration of her laws. Such a person has exhibited a trait of character which, without the aid of the law in question, au- thorizes the court to dtclare him unfit to practise before it, and to strike his name from the roll of its attorneys if it be found there. I have already shown that this act provides for no indictment or other charge, that it contemplates and admits of no trial, and I now proceed to show that even if the right of the court to prevent an attorney, guilty of the acts mentioned, from appearing in its forum, depended upon the statute, that still it inflicts no punishment in tlie legal sense of that term. "Punishment," says Mr. Wharton in his law lexicon, "is the penalty for transgress- ing the laws;" and this is, perhaps, as com- prehensive and at the same time as accurate a definition as can be given. Now, what law is it whose tmnsgression is punished in the case before as? None is referred to in the act, and theie is nothing on its face to show that it was intended as an additional punishment for any offence described in anj' other act. A part of the matters of which the applicant is required to purge himself on oath may amount to treason, but surely there could be no intention or desire to in- flict this small additional punishment for a crime v>-hose penalty already was death and confiscation of property. In fact the word "punishment" is used by the court in a sense which would make a great number of laws, pt^rtaking in no sense of a criminal character, laws for punish- ment, and therefore ex post facto. A law, for instance, v^hich increased the facility for detecting frauds by compelling a party to a civil proceeding to disclose his transactions under oath would result in his punishment in this sense, if it compelled him to pay an honest debt which could not be coerced from him before. But this law comes clearly within the class described by this court in Watson v. Mercer, as civil proceed- ings which affect private rights retrospec- tively. Again, let us suppose that several persons afflicted with a form of insanity hei'etofore deemed harmless, shall be found all at once to be dangerous to the lives of persons with whom they associate. The state, therefore, passes a law that all persons so affected shall be kept in close conflnemeut until their recovery is assured. Here is a case of pun- ishment in the sense used by the court for a matter existing before the passage of the law. Is it an ex post facto law? And, if not, in what does it differ from one? Just in the same manner that the act of congress does, namely, that the proceeding is civil and not criminal, and that the imprisonment in the one case and the prohibition to prac- tise law in the other, are not punishments in the legal meaning of that term. The civil law maxim, "Nemo debet bis vex- ari, pro una et eadam causa," has been long since adopted into the common law as ap- plicable both to civil and criminal proceed- ings, and one of the amendments of the con- stitution incorporates this pi'inciple into that instrument so far as punishment affects life or limb. It results from this rule, that no man can be twice lawfully punished for the same offence. We have already seen that the acts of which the party is required to purge himself on oath constitute the crime of treason. Now, if the judgment of the court in the cases before us, instead of per- mitting the parties to appear without taking the oath, had been the other way, here would have been the case of a person who, on the reasoning of the majority, is punished by the judgment of this court for the same acts which constitute the crime of treason. Yet, if the applicant here should afterwards be indicted for treason on account of these same acts, no one will pretend that the pro- ceedings here could be successfully pleaded in bar of that indictment. But why not? Simply because theie is here neither trial nor punishment within the legal meaning of these terms. I maintain that the purpose of the act of congress Avas to require loyalty as a qual- ification of all who practise law in the na- tional courts. The majority say that the purpose was to impose a punishment for past acts of disloyalty. In pressing this argument it is contended by the majority that no requirement can be justly said to be ? qualification which is not attainable by all, and that to demand a qual- ification not attainable by all is a punish- ment. The constitution of the United States pro- vides as a qualification for the oflices of president and vice-president that the person elected must be a native-born citizen. Is this a punishment to all those naturalized 222 EX POST FAC-TO LAWS. •citizens wlio can never attain tliat qnr^fica- tion? Tlie constitntions of nearly all the states require as a qualification for voting that the voter shall be a white male citizen. Is this a punishment for all the blacks who can never become white? Again, it was a qualification required by some of the state constitutions, for the of- fice of judge, that the person should not be over sixty years of age. To a very large number of the ablest lawyers in any state this is a qualification tc^ which they can nev- er attain, for everv year removes them far- ther away from the de^rignated age. Is it a punishment? The distinguished commentator on Ameri- can law, and chancellor of the state of New York, was deprived of that office by this provision of the constitution of that state, and he was thus, in the midst of his useful- ness, not only turned out of office, but he was forever disqualified from holding it again, by a law passed after he had accepted the office. This is a much stronger case than that of a disloj-al attorney forbidden by law to prac- tise in the courts, yet no one ever thought the law was ex post facto in the sense of the constitiition of the United States. Illustrations of this kind could be multi- plied indefinitely, but they are unnecessary. The history of the time when this statiite was passed — the darkest hour of our great struggle— the necessity for its existence, the humane character of the president who signed the bill, and the face of the law itself, all show that it was purely a qualification, exacted in self-defence, of all who took part in administering the government in any of its departments, and that it was not passed for the purpose of inflicting punishment, liowever merited, for past offences. I thinlv I have now shown that the statute in question is within the legislative power of congress in its control over the courts and their officers, and that it was not void as being either a bill of attainder or an ex post facto law. If I am right on the questions of qual- ification and punishment, that discussion dis- poses also of the proposition, that the par- don of the president relieves the party ac- cepting it of the necessity of taking the oath, even if the law be valid. I am willing to concede that the presi- dential pardon relieves the party from all the penalties, or in oth^r words, from all the punishment, which the law inflicted for his offence. But it relieves him from nothing more. If the oath required as a condition to practising law is not a pvmishment, as I think I have shown it is not, then the pardon of the president has no effect in I'eleasing him from the reqiiiremeut to take it. If it is a qualification which congress had a right to prescribe as necessary to an attorney, then the president cannot, by pardon or oth- erwise, dispense with the law requiring such qualification. This is not only the plain rule as between the legislative and executive departments of the government, but it is the declaration of common sense. The man who, by counter- feiting, by theft, by murder, or by treason, is rendered unfit to exercise the functions of an attorney or counsellor-at-law, may be saved by the executive pardon from tlie pen- itentiary or the gallows, but is not thereby restored to the qualifications which are es- sential to admission to the bar. No doubt it will be found that very many persons among those who cannot take this oath, de- serve to be relieved from the prohibition of the law; but this in no wise depends upon the act of the president in giving or refusing a pardon. It remains to the legislative pow- er alone to prescribe under what circumstan- ces this relief shall be extended. In regard to the case of Cummings v. State of Missom-i, allusions have been made in the course of argument to the sanctity of the ministerial office, and to the inviolability of religious freedom in this country. But no attempt lias been made to show that the constitution of the United States inter- poses any such protection between the state governments and their own citizens. Nor can anything of this kind be shown. The federal constitution contains but two provi- sions on this sul).iect. One of these forl)ids congress to make any law respecting the es- tablishment of religion, or prohibiting the free exercise thereof. The other is, that no religious test shall ever be required as a qualification to any office or public trust un- der the United States No restraint is placed by that instrument on the action of the states; but on the con- trary, in the language of Story, "The whole power over the subject of religion is left ex- clusively to the state governments, to be acted upon according to their own sense of justice and the state constitutions." Const. § 1878. If there ever was a case calling upon this court to exercise all the power on this sub- ject which properly belongs to it, it was the case of Permoli v. Municipality, No. 1, 3 How. 589. An ordinance of the first municipality of the city of New Orleans imposed a penalty on any priest who should officiate at any fu- neral, in any other church than the obituary chapel. Mr. Permoli, a Catholic priest, per- formed the funeral services of his church over the body of one of his parishioners, in- closed in a coffin, in the Roman Catholic Church of St. Augustine. For this he was fined, and relying upon the vague idea ad- vanced here, that the federal constitution protected him in the exercise of his holy functions, he brought the case to this court. But hard as that case was, the court re- plied to him in the following language: "The constitution (of the United States) makes no provision for protecting the citizens of the respective states in their religious lib- VALIDITY OF EX POST FACTO STATUTES. 223 erties; this is left to tlie state constitutions and laws; nor is there any inhibition im- posed by tlae constitution of the United States in this respect on tlie states." Mr. Permoli's writ of error was, therefore, dis- missed for want of jnHsdiction. In that case an ordinance of a mere local corporation forbade a priest, loyal to his gov- ernment, from performing what he believed to be the necessary rites of his church over the body of his departed friend. This court said it could give him no relief. In this case the constitution of the state of Missouri, the fundamental law of the people of that state, adopted by their popular vote, declares that no priest of any church shall exercise his ministerial functions, unless he will show, by his own oath, that he has borne a true allegiance to his government. This court now holds this constitutional provision void, on the ground that the federal consti- tution forbids it. I leave the two cases to speak for themselves. In the discussion ot these cases I have said nothing, on the one hand, of the great evils inflicted on the country by the voluntary ac- tion of many of those persons affected by the laws under consideration; nor, on the other hand, of the hardships which they are now suffering, much more as a consequence of that action than of any laws which con- gress can possibly frame. But I have en- deaA'ored to bring to the examination of the grave questions of constitutional law in- volved in this inquiry those principles alone wliich are calculated to assist in determin- ing what the law is, rather than what, in my private judgment, it ought to be. Mr. Chief Justice CHASE, Mr. Justice SWAYNE, and Mr. Justice DAVIS concur in this dissent. WEST PUBLISHINU CO., PRINTERS AND 8TERKOTYPERS, ST. PAUL, MINN. <^« ,-0' ^A .0 0^ "^o • 'o , ,^ * \^ ,^^' ^^ ^Oo,. .\^ ,^^' .* M-' '^%. >?• .V, lo ©0 ■># -^r ■"^/ -^^ ^'^■'' *V^ ^-:^ ■^^^. I .o^ <> 'i'' ..s^%, '\ ,<^- 'c^. ^ ,0 . v\ ^o ■o- ^■Xvji-- ''t> * AX ?. ■^ I, ^/'^- ■-'^ - ■'^. •>^ ■^ ' '^^ 0^- " 5 : o » * 7 1 T ^^ "^^^ %.' '^ A-^' -\^' ■•--.^ ^'^'^.^^ \\> OO * .V "* \^ o. •/- ovV *^^ /ff^. \y s'>\^' o- \ '. ;v^^\P^*° '^ ' "^^ ^ '^cf> ,<'^'